Mudge denies forum non conveniens motion; Transfer not convenient for all parties

Madison County Circuit Judge William Mudge denied an insurance claim specialist’s motion to transfer a case alleging a couple was denied insurance coverage after their rental property was burglarized.

Mudge concluded that transfer would not be convenient for all parties.

Plaintiffs George N. Skidis Jr. and Maria C. Skidis, doing business as Varski Properties, filed the lawsuit on Oct. 15 against Country Mutual Insurance Company, Country Casualty Insurance Company, Country Insurance & Financial Services, Country Companies and Mark Wessel – claim specialist – for breach of contract regarding their insurance policy.

According to the complaint, the defendants executed an insurance policy in April 2007 covering the Skidis’s rental dwellings on Westwood Drive in Cahokia. Then on Oct. 15, 2013, the covered property, which was under construction, was burglarized.

The complaint states that in addition to the theft of building materials installed on the premises, the theft of copper plumbing allowed more than 45,000 gallons of water to run freely through the dwelling and cause additional damage.

Had the property not been damaged, it would have been ready for rental in 15 days, making $9,000 per year, the suit states.

The plaintiffs claim the defendant companies sent Wessel to inspect the damages, but he failed to take any measurements or attempt to write an estimate of damages during his inspection. Shortly after, the plaintiffs were denied coverage.

The plaintiffs say the defendants denied their theft claim despite the police report, instead calling it vandalism, which is subject to an exception in the insurance policy because the property had been vacant for more than 60 days prior to the incident. The plaintiffs said they believe the insurance companies purposely misidentified the incident as vandalism in order to avoid fulfilling their contractual obligations.

The plaintiffs seek reimbursement of more than $67,800 in damages, plus a 5 percent debris removal expense of $9,000, lost rents of $9,000, a statutory penalty of $60,000, attorney’s fees, costs of litigation and interest.

Country Casualty Insurance Company filed an amended answer to the complaint on March 26, arguing there is “no insurance coverage for the losses set forth in plaintiffs’ complaint pursuant to express contract terms in the applicable insurance policy.”

It adds that the plaintiffs’ insurance policy excludes coverage for vandalism and malicious mischief and losses resulting from intentional wrongful acts. Because no coverage exists, there can be no breach of warranty, the affirmative defenses state.

Country Casualty also filed a counterclaim against the couple, seeking declaratory judgment. Country Casualty argues the property was not being constructed at the time of the loss, but had actually been present at the location for many years. Additionally, it claims declaratory judgment is appropriate because vandalism and malicious mischief is not covered by the insurance policy.

Wessel is named a co-defendant as an employee Country Casualty Insurance Company, making both defendants liable under the allegations named in Count I. Specifically, Count I alleges Wessel breached the insurance policy contract when he failed to conduct the required “thorough and complete” inspection and investigation at the site, the plaintiffs claim.

He sought to transfer the case to St. Clair County Circuit Court.

On Feb. 24, Mudge denied Wessel’s motion to transfer the case to St. Clair County, concluding that the defendant failed to meet his burden that the private and public factors strongly favor transfer.

Wessel argued that transfer is appropriate, because it would be more convenient for him. However, Mudge held that the plaintiffs have Madison County as their forum, particularly since they reside in Madison County.

“It cannot be said that their chosen forum is inconvenient for them,” Mudge wrote.

“Though the acts or omissions alleged in plaintiffs’ complaint occurred in St. Clair County, and some of the defendants may be more centered in that country, the moving defendant has not established that Madison County is inconvenient to all the parties. It is difficult to image how Madison County is inconvenient to a party who lives here.”

Further, Mudge held that not all parties joined in Wessel’s motion to transfer, and the court cannot presume that transfer would be convenient for the remaining parties.

Mudge also rescheduled the hearing on the plaintiffs’ motion to strike the defendants’ jury demand for Aug. 20.

Country Casualty and Wessel are represented by Christopher B. Bortz and Derek J. Siegel of Neville Richards & Wuller in Belleville.

William S. Daniel of Daniel Law Offices in Edwardsville represents the plaintiffs.

Madison County Circuit Court case number 14-L-1407