text:
      In re ESTATE OF NATALIE ELSON, Deceased—(Margo Elson, Petitioner-Appellant, v. Dr. Ralph Elson, Respondent-Appellee).
    Second District
    No. 82—1002
    Opinion filed December 30, 1983.

      Mark L. Hellner, of Schwartz & Freeman, of Chicago, for appellant.
    John F. Harrow, of Rathje, Woodward, Dyer & Burt, of Wheaton, for ap-pellee.
   JUSTICE NASH

delivered the opinion of the court:

Petitioner, Margo Elson, appeals from an order of the trial court which dismissed her petition for letters of administration. On appeal, she asserts that Natalie Elson, her deceased sister, was a resident of Illinois at the time of her death and had not changed her residence permanently from Illinois to Pennsylvania.

Natalie Elson died in the State of Pennsylvania on November 14, 1981, as a result of an automobile accident. Decedent’s sister, Margo Elson, filed a petition for letters of administration in the circuit court of Du Page County, Illinois, on February 19, 1982, in which she alleged that Natalie was a resident of Du Page County at the time of her death. Decedent’s father, Dr. Ralph Elson, entered a special and limited appearance and filed a motion to strike and dismiss the petition in which he asserted, among other things, that Natalie was domiciled in Pennsylvania at the time of her death. After consideration of the evidence the trial court determined that Natalie Elson was a domiciliary of Pennsylvania at the time of her death and, accordingly, dismissed the petition pursuant to Dr. Bison’s motion. Margo Elson appeals.

Testimony at trial disclosed that Natalie Elson, who died at the age of 27, lived her entire life in Illinois, except for the five or six days she resided in Pennsylvania immediately prior to her death on November 14, 1981. According to one witness, Natalie’s primary interest in life was horses and she had studied recreation and equine sciences or horsemanship while attending Southern Illinois University. After graduating from college, Natalie completed an equestrian internship, taught horseback riding to handicapped children, trained horses, and trained with an instructor in Minooka, Illinois, to further her education. During the last six years she lived in Illinois, Natalie often changed residences and lived in six different places in Illinois during that period.

Natalie decided to study dressage at Hillview Farm in Pennsylvania under the tutelage of an instructor named Ralph Hill; she had studied dressage earlier in Minooka, Illinois. While in Pennsylvania, she was to be a working student whereby she would receive lessons in horsemanship in exchange for cleaning stalls and exercising horses at the farm and she lived in a boarding house across the road from Hillview Farm. Evidence was presented that Natalie’s aspiration was to compete in the 1984 Olympics as a rider; also important to her was the improvement of her riding techniques and the acquisition of sufficient knowledge and expertise about riding and training horses to enable her to teach other people.

Shortly before her death, Natalie told her father that she would become rich and famous and would buy a horse farm where Dr. Elson could retire. She said she was going to look for real estate in Illinois on a part-time basis; that is why she had secured an Illinois real estate license. Natalie also informed her father she would return to Illinois to visit.

Natalie’s former boyfriend, Kyran Cahill, testified that she had informed him shortly before departing for Pennsylvania that she would put her possessions in storage and would return to Illinois probably within a year; she was going to give it a year in Pennsylvania. It was his impression that she went to Pennsylvania as a student, not to move there, and that she would have returned to Illinois within a year. Patricia Hollowed, another friend of Natalie, stated that she had no reason to believe that Natalie intended to make Pennsylvania her permanent residence.

In her deposition Margo Elson stated that Natalie had informed her she intended to stay in Pennsylvania for approximately one year and then intended to return to Illinois to be a professional riding instructor. Margo also stated that she had no doubt that Natalie intended to return to Illinois for a few weeks to pick up her belongings to take them to her new abode, which could be anywhere as long as it furthered her goal of riding in the Olympics.

Joan Elson, Natalie’s stepmother, found an unmailed letter in Natalie’s room at the boarding house which she had written to her sister, Margo, on November 13, 1981, the day before Natalie died. In it the decedent stated that she had “moved to Pennsylvania!” and that she had found a good home for her dog in Illinois.

When she departed for Pennsylvania, Natalie took her horse with her as well as a carload of personal belongings. Upon arriving in Pennsylvania, Natalie, who lived near the Pennsylvania-Delaware border, established bank accounts in Delaware. She also had a safety deposit box there which contained certificates of deposit, horse ownership papers, and the Illinois title to her car. According to her father, Natalie took all her personal property to Pennsylvania with the exception of items she left in storage in Illinois and a safety deposit box in Illinois which contained her jewelry. The items which Natalie stored in the warehouse included clothing, furniture and a saddle; the storage lease agreement listed her father’s Deerfield, Illinois, residence as her mailing address and stated that she was employed at Hillview Farm in Pennsylvania. In addition, due to the fact that Natalie could not have a dog with her at Hillview Farm, she gave it to a friend in Illinois. It was also established that Natalie possessed an Illinois driver’s license.

After Natalie’s death, Dr. Elson was appointed administrator of her estate by a court in Pennsylvania which issued letters testamentary and he distributed all of the property which Natalie owned in Illinois. Dr. Elson was not certain whether his attorney in Pennsylvania had filed a wrongful death action there as a result of his daughter’s death. The record also reflects that a wrongful death action was filed in Lake County, Illinois, on behalf of the doctor’s ex-wife; Dr. Elson was granted leave to intervene in that suit as an heir of his deceased daughter.

Petitioner contends that the evidence failed to establish that Natalie Elson intended to abandon her lifelong residence in Illinois in favor of establishing residence in Pennsylvania. She asserts too that Dr. Elson, as objector to her petition for the issuance of letters testamentary, failed to satisfy his burden of proof that Natalie intended to abandon her Illinois residence permanently and establish Pennsylvania as her new, permanent residence.

The long-standing rule in Illinois is that although the terms “residence” and “domicile” have different shades of meaning, they are generally construed synonymously when used in statutes unless their meaning is limited by express definition or by the context of the act. (Hatcher v. Anders (1983), 117 Ill. App. 3d 236, 239.) While section 5 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. llOVa, par. 5 — 1) uses the word “residence” in setting forth the place for the probate of a will or the administration of an estate, the statute does not expressly limit the word’s meaning by definition. Also, it is clear that the courts of this State have employed the concept of domicile in probate matters. (See, e.g., Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156-58; In re Estate of Jackson (1977), 48 Ill. App. 3d 1035, 1037-38.) Thus, it appears that the two terms are used synonymously under the Probate Act.

An Illinois circuit court in probate may exercise jurisdiction over the estate of a decedent either when the deceased was domiciled in Illinois or at the time of her death owned property in this State. (In re Estate of Jackson (1977), 48 Ill. App. 3d 1035, 1037.) “Domicile” has been defined as the place where a person has her true, permanent home to which she intends to return whenever she is absent. (Keck v. Keck (1974), 56 Ill. 2d 508, 514; Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156; In re Marriage of Hanlon (1983), 116 Ill. App. 3d 157, 160.) Domicile is a continuing thing, and from the moment a person is born she must, at all times, have a domicile. (Stein v. County Board of School Trustees (1967), 85 Ill. App. 2d 251, 257, aff’d (1968), 40 Ill. 2d 477.) A person can have only one domicile; once a domicile is established, it continues until a new one is actually acquired. (In re Estate of Stahl (1973), 13 Ill. App. 3d 680, 683; Oswego Community Consolidated School District No. 434 v. Goodrich, (1960), 28 Ill. App. 2d 407, 417; see Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156.) To effect a change of domicile there must be an actual abandonment of the first domicile, coupled with an intent not to return to it; also, physical presence must be established in another place with the intention of making the last-acquired residence her permanent home. Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156-57; Miller v. Brinton (1920), 294 Ill. 177, 186; Stein v. County Board, of School Trustees (1967), 85 Ill. App. 2d 251, 257; see Stilwell v. Continental Illinois National Bank & Trust Co. (1964), 31 Ill. 2d 546, 548; Hatcher v. Anders (1983), 117 Ill. App. 3d 236, 239; In re Estate of Jackson (1977), 48 Ill. App. 3d 1035, 1038; Fink v. Fink (1976), 37 Ill. App. 3d 604, 607-08; Oswego Community Consolidated School District No. 343 v. Goodrich (1960), 28 Ill. App. 2d 407, 417.

The question of domicile, as it relates to a decedent, is one of the most difficult in the law because it turns on the proof of the intent of a deceased person. (In re Estate of Jackson (1977), 48 Ill. App. 3d 1035, 1038.) The matter of domicile is largely one of intention (Keck v. Keck (1974), 56 Ill. 2d 508, 515; Fink v. Fink (1976), 37 Ill. App. 3d 604, 607) and, hence, is primarily a question of fact (Fry v. Fry (1947), 332 Ill. App. 484, 493). Once a domicile is established, it is presumed to continue (In re McCalmont (1958), 16 Ill. App. 2d 246, 255), and the burden of proof in such cases rests on the party who attempts to establish that a change in domicile occurred. (In re Estate of Jackson (1977), 48 Ill. App. 3d 1035, 1038; In re McCalmont (1958), 16 Ill. App. 2d 246, 255.) It is manifest that very slight circumstances often decide the question of domicile, and the determination is made based on a preponderance of the evidence in favor of some particular place as a domicile. (Fry v. Fry (1947), 332 Ill. App. 484, 492.) In addition, in light of the factual issue to be decided, the resolution of the question of domicile depends upon the facts and circumstances of the particular case, for precedents with different factual patterns are of slight assistance. 332 Ill. App. 484, 492.

Margo Elson asserts that Dr. Elson failed to sustain his burden of demonstrating that his deceased daughter Natalie permanently abandoned her residence in Illinois with the intention of becoming a permanent resident of Pennsylvania. She correctly notes that affirmative acts of abandonment of the Illinois residence must exist and that a temporary absence from Illinois, even if lengthy, does not necessarily equate with abandonment. Davis v. Davis (1973), 9 Ill. App. 3d 922, 926.

It is well established that the trial judge, as the trier of fact, is in a superior position to hear and weigh the evidence and determine the credibility and demeanor of the witnesses. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356; Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 122; Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 619.) Accordingly, a court of review will not reverse a judgment unless the findings are clearly and palpably contrary to the manifest weight of the evidence. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356; Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 122.) For a finding or judgment to be against the manifest weight of the evidence, an opposite conclusion must be clearly evident. (Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 122; Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 621.) A reviewing court may not overturn a judgment merely because it might disagree with it or have come to a different conclusion had the issue been presented to the court of review in the first instance. (Schulenberg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356.) In a proceeding under the Probate Act, a court of review cannot undertake to assume the functions of the trial court and decide factual questions. The function of the reviewing court is limited to determining whether the judge in a probate matter was warranted in finding as he did. In re Estate of Jaeger (1974), 16 Ill. App. 3d 872, 876.

Given the particular facts and circumstances of this case, we cannot say that the trial court’s findings and conclusion were against the manifest weight of the evidence, for a contrary conclusion is not evident. We conclude there is sufficient evidence in this record to establish that decedent intended to abandon her Illinois domicile permanently and acquire a permanent domicile in Pennsylvania in support of the judgment of the trial court.

The following facts support the trial court’s determination decedent was domiciled in Pennsylvania at the time of her death. When she left Illinois, Natalie took all her personal possessions with her to Pennsylvania except for jewelry and items she left in storage in Illinois. Also, she took her horse to Pennsylvania, an animal which the trial court determined was necessary to her profession and livelihood. In addition, she left her dog in Illinois and found a good home for it there. Apparently, she closed her bank accounts in Illinois and established new accounts in Delaware, near her new home in Pennsylvania; she also opened a safety deposit box in Delaware which contained her valuable papers. In an unmailed letter she penned the day before her death, Natalie wrote that she had “moved to Pennsylvania!” Evidence was also presented that Natalie intended to return to Illinois for visits. The trial court noted that the decedent “was somewhat transient and would move whenever her career dictated.” The court felt that it had “to consider her last established place of residence as her permanent domicile.” It appears the court decided that Natalie had changed the focus of her life in a permanent manner from Illinois to Pennsylvania in pursuit of her equestrian career. Although some evidence was presented that Natalie intended to stay in Pennsylvania for only one year and then planned to return to Illinois, the trial court may have given that evidence less weight in light of the other testimony that the decedent intended to return to Illinois for visits and had “moved to Pennsylvania!”

Petitioner also argues that because the trial court’s memorandum opinion and subsequent judgment order did not expressly address the question of Dr. Bison’s burden of proof to establish that his deceased daughter changed her domicile from Illinois to Pennsylvania, the court below did not apply the presumption in favor of Natalie’s continued residence in Illinois and failed to require Dr. Elson to prove that she intended to abandon her Illinois residence permanently and establish Pennsylvania as her new, permanent residence.

It is well settled that on appeal all reasonable presumptions are in favor of the action of the trial court and that the burden is on the appellant to show affirmatively the errors assigned on review. (Cogdill v. Durham (1976), 43 Ill. App. 3d 940, 942; Martin v. Orvis Brothers & Co. (1974), 25 Ill App. 3d 238, 251.) The party who prosecutes an appeal bears the burden of overcoming the presumption that the trial court’s judgment, is correct. (Thanopoulos v. Pickens (1980), 87 Ill. App. 3d 906, 909.) The reviewing court will not presume that error occurred below (Flynn v. Vancil (1968), 41 Ill. 2d 236, 241), and a court of review will not assume that the trial court misunderstood the applicable law. Wabash Life Insurance Co. v. Cadillac Associates, Inc. (1966), 72 Ill. App. 2d 413, 416,

In. the case at bar there is no affirmative evidence in the record that the trial court either- misunderstood or failed to apply the correct law regarding Dr. Bison’s burden of proof. Petitioner argued in the trial court that Dr. Bison had the burden to show that Natalie had changed her domicile from Hlinois to Pennsylvania and it is clear that the court was apprised of the burden-of-proof issue and heard the arguments of the petitioner’s attorney relative to that question. We may not speculate the trial court failed to consider and apply the burden of proof in this case. See Thanopoulos v. Pickens (1980), 87 Ill. App. 3d 906, 909.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

REINHARD and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    BOHNEN INTERNATIONAL, INC., et al., Plaintiffs-Appellees, v. LIBERTY MUTUAL INSURANCE COMPANY, INC., Defendant-Appellant.
    Second District
    No. 83—138
    Opinion filed December 30, 1983.

      Harry E. Sachrison and John S. Huntley, both of Sweeney and Riman, Ltd., of Chicago, for appellant.
    Dallas C. Ingemunson, of Yorkville, and Peter K. Wilson, of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiffs, Bohnen International, Inc., and John J. Bohnen, Jr., sought recovery for the loss of certain tractors from the defendant, Liberty Mutual Insurance Company, Inc., under an insurance policy issued by the defendant (Liberty). Summary judgment was entered for Bohnen International, and against the defendant, on the issue of liability. A jury trial was conducted on the issue of damages suffered by Bohnen International as the result of the loss. A verdict in favor of Bohnen International in the amount of $36,500 was awarded. Liberty appeals.

Bohnen International was engaged m the business of selling and servicing new and used trucks in Oswego, Hiinois. Pursuant to an agreement with Charles Odom and Joan Odom, the plaintiffs sold the Odoms three new tractors for a price of $106,900. As partial payment for the new trucks, the Odoms gave the plaintiffs three used tractors.

Two of the trade-in tractors, a 1973 International Harvester and a 1974 Ford, were subsequently seized by the FBI and the police on behalf of the true owners. The plaintiffs state that the two used tractors were stolen vehicles. The defendant Liberty claims that it was never proven the tractors were stolen. In its summary judgment order, the court stated the vehicles had been stolen.

The plaintiffs filed a complaint against the Odoms for breach of warranty of title to the two used tractors. A default judgment was entered against the Odoms for $33,988.59.

The plaintiffs sought recovery for the loss of the two vehicles from Liberty. The plaintiffs claimed the money was due them under the terms of an insurance policy issued by Liberty in consideration for premiums paid by the plaintiffs. The damage amount was based upon the trade allowance and the plaintiffs’ investment in reconditioning the tractors.

The court granted the plaintiffs’ motion for summary judgment and against Liberty on the issue of liability only. The judgment provided:

“f) In July 1976 plaintiff had, among others, three new motor vehicles covered by defendant’s policy, which were sold to defendant Odom for $106,900.
g) The purchase price included three used motor vehicles received in trade and credited against the purchase price in the amount of $30,000.00 and which became motor vehicles covered by defendant’s policy.
h) Plaintiff had not entrusted custody or possession of the new motor vehicles to any one prior to sale or consigned or franchized same, but rather made the sale direct to defendant Odom.
i) In fact the used motor vehicles had been stolen and by virtue thereof plaintiff lost permanent use and possession of both the new motor vehicles taken by defendant Odom and also the old motor vehicles returned to the rightful owners.
j) That such conduct constituted a theft.
k) That loss under the policy is limited to direct but may be subject to a further limitation in the case of loss and plaintiff claims additional expenses of $3,238.59 for restoration of the vehicles.”

The judgment went on to find that questions of fact remained as to John J. Bohnen’s agency and the amount of damages. Summary judgment for John J. Bohnen was denied.

The court denied Liberty’s motion to vacate this judgment and enter summary judgment in its favor. The same judgment allowed the plaintiff to nonsuit John J. Bohnen, to amend the amount of damages to $31,238.59 and to amend the month of loss from August to October 1976, and to withdraw a jury demand. A fifth amended complaint reflecting the amendments was filed.

A trial on the issue of damages resulted in a verdict in the amount of $36,500.

Liberty’s motion for judgment n.o.v. and for entry of judgment not to exceed $31,724 was denied.

Liberty filed a post-trial motion which sought to vacate the prior judgment and for judgment in its favor because the loss was not covered by the automobile physical damage insurance endorsement. The motion was denied.

On appeal, Liberty does not contest the fact that the plaintiff (Bohnen) was the named insured on a policy of insurance issued by Liberty. The policy period ran from November 1, 1975, to November 1, 1976, covering the time of loss. Nor does Liberty dispute the fact that the three new tractors sold to the Odoms and the three used tractors received by the plaintiff were “covered automobiles” under the endorsement to the insurance policy. Liberty claims that the endorsement, entitled automobile physical damage insurance endorsement, either did not cover or specifically excluded the loss suffered by the plaintiff.

Pertinent portions of the endorsement are:

“1. Coverage Agreements
1. The company will pay for loss to covered automobiles under
Theft Coverage — caused by theft or larceny,
* * *
Exclusions
This insurance does not apply:
* * *
(e) to loss occurring
(iii) after, or resulting from, the named insured’s voluntarily parting with title to or possession of any covered automobile, if induced to do so by any fraudulent scheme, trick, device or false pretense, or from embezzlement, conversion, secretion, theft or larceny committed by any person entrusted by the named insured with custody or possession of the covered automobile;
* * *
IV. Additional Definitions
‘loss’ means direct and accidental loss or damage; ***.”

The first issue presented for review is whether the trial court erred in granting summary judgment for the plaintiff on the issue of the defendant’s liability under the endorsement. The defendant views that issue in two parts. First, it claims that any loss to the plaintiff resulted from the plaintiff’s voluntary parting with the three new tractors to the Odoms upon their misrepresentation they had good title to the used tractors. Although the three new vehicles were “covered automobiles,” paragraph (e)(iii) of the endorsement excluded any loss from the sale to the Odoms. Second, theft coverage under the endorsement did not cover the loss of the two used vehicles because seizure by the FBI was not a theft.

The plaintiff points out that the loss it claims is not the three new tractors delivered to the Odoms but the two used tractors seized by the FBI. It further claims that the theft giving rise to the defendant’s liability is not the seizure of the used tractors by the FBI. The theft which caused the plaintiff’s loss was the original theft by the Odoms of the 1973 International Harvester and the 1974 Ford. The original theft caused the seizure which resulted in the plaintiff’s loss. The plaintiff claims that the policy does not require the loss to be “directly” caused by the theft. Direct modifies loss.

Since the trial court’s summary judgment order does not single out what actions constituted the theft, all three arguments of the parties are reviewed.

Summary judgment is properly granted only where no triable, genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. (Blaylock v. Country Mutual Insurance Co. (1980), 85 Ill. App. 3d 1042.) The facts of this case are not in dispute. The construction of language in an insurance policy and its effect are questions of law. (Illinois Casualty Co. v. Peters (1979), 73 Ill. App. 3d 33.) The extent of coverage based on the construction of the endorsement’s language herein was a question of law properly decided on a motion for summary judgment. (John Bader Lumber Co. v. Employers Insurance (1982), 110 Ill. App. 3d 247.) However, as a question of law, the question of insurance coverage can be determined upon review, independent of the trial court’s judgment. Illinois Casualty Co. v. Peters (1979), 73 Ill. App. 3d 33.

In its first argument, Liberty contends that the loss suffered by the plaintiff is the loss of the three new vehicles taken by the Odoms. The loss was specifically excluded by the exclusionary provision of (e)(iii) of the insurance endorsement. Liberty claims that the plaintiff voluntarily parted with the three new vehicles and cannot recover for the loss resulting from the transaction.

The plaintiff points out that it sought recovery for the loss of two used vehicles seized by the FBI. It argues that that loss is not excluded by the provision (e)(iii) and therefore Liberty’s argument is irrelevant on that point.

The plaintiff did not seek recovery on the loss of the three new vehicles. As both sides would acknowledge, the three new tractors were “covered automobiles” under the policy. However, their loss in this factual situation was specifically excluded by the terms of the endorsement.

Provision (e)(iii) is very similar to an exclusionary clause before the court in Baxter Motors, Inc. v. Iowa Hardware Mutual Insurance Co. (1958), 15 Ill. App. 2d 524; In Baxter, the plaintiff allowed a man to take a car for the weekend pursuant to an agreement that the man would return on Monday to pay for it. The plaintiff and the man had earlier entered into an agreement whereby the plaintiff would sell the car to the man for a certain sum of money. The car and the man were never found. The plaintiff sought recovery for the loss of the car under an insurance policy from the defendant.

Although the trial court found for the plaintiff, the appellate court reversed on the grounds that an exclusionary clause prevented recovery. The provision excluded coverage for loss where the insured voluntarily parted with title and possession due to a fraudulent scheme, trick, device, or false pretense; or loss from embezzlement, conversion, secretion, theft, larceny, robbery or pilferage by a person entrusted with either custody or possession. (Baxter Motors, Inc. v. Iowa Hardware Mutual Insurance Co. (1958), 15 Ill. App. 2d 524, 526.) While the loss was not excluded under the first part because the plaintiff did not part with title, it was excluded under the second portion. The man had acquired possession by false pretense resulting in a loss by theft, larceny or conversion. 15 Ill. App. 2d 524, 529-30; cf. Phaholyothin v. State Farm Mutual Automobile Insurance Co. (1982), 104 Ill. App. 3d 322, wherein Baxter was distinguished on the basis of the exclusionary clause therein.

In the case at bar, the provision excluded coverage where the plaintiff voluntarily parted with title or possession due to a fraudulent scheme, trick, device or false pretense. Whether title was relinquished by the plaintiff is not necessary where the plaintiff voluntarily parted with possession of the three new vehicles upon the false pretense that the Odoms had clear title to the two used tractors tendered as consideration.

The loss was also excluded under the second portion of (e)(iii). The Odoms were entrusted with possession of the three new tractors. Their actions in obtaining that possession amounted to theft or larceny which excluded coverage under the endorsement provision.

Viewing the loss to the plaintiff as the two used vehicles seized by the FBI, there are two separate arguments by the parties. Liberty argues that the coverage portion of the insurance endorsement provides for loss to “covered automobiles” “caused by theft or larceny.” While the FBI seized “covered automobiles,” the seizure was not a theft because the FBI took the tractors on behalf of someone with a superior title.

The plaintiff had an insurable interest in the two used tractors seized by the FBI. (Reznick v. Home Insurance Co. (1977), 45 Ill. App. 3d 1058.) They were “covered automobiles” under the insurance endorsement. However, unlike Reznick, the plaintiff did not have comprehensive coverage of loss. In Reznick, the court found that the comprehensive provisions of the policy covered the loss to the plaintiff when his car was confiscated by the authorities as a stolen vehicle. See also Blaylock v. Country Mutual Insurance Co. (1980), 85 Ill. App. 3d 1042.

The plaintiff’s only possible means of recovery for the loss suffered herein stems from the coverage for theft or larceny. Theft is not defined in the policy, and therefore an application of the Criminal Code of 1961 definition of theft (Ill. Rev. Stat. 1975, ch. 38, par. 16— 1) is reasonable. Kelly v. State Farm Mutual Automobile Insurance Co. (1975), 34 Ill. App. 3d 290.

Under the definition found in section 16 — 1, the seizure by the FBI was not a theft. The FBI took the two used vehicles on behalf of someone with a superior title to the plaintiff’s. The taking was not obtained by “unauthorized control,” “deception,” or “threat” on the part of the FBI. Ill. Rev. Stat. 1975, ch. 38, pars. 16 — 1(a), (b), (c), respectively.

Case law in other jurisdictions supports a view that the FBI seizure was not a theft. In Hubbell v. Farmers Insurance Group (1978), 200 Neb. 472, 263 N.W.2d 863, the court found that repossession of an automobile by a person with superior title was not a criminal taking. The automobile theft provision did not extend coverage over lawful repossession.

In Jackson v. Teachers Insurance Co. (1973), 30 Cal. App. 3d 341, 106 Cal. Rptr. 208, the court found that theft coverage in an insurance policy did not cover the taking of a stolen vehicle by police as agents for the rightful owner. Such action by the police was not a “theft” within the meaning of the policy.

Based on the foregoing, the FBI seizure of the two used vehicles was not a theft within the terms of the insurance endorsement. The loss was not covered.

Turning to the plaintiff’s argument for coverage under the theft provision, it contends the loss it suffered was the two used tractors seized by the FBI. This loss was not caused by the FBI seizure. The loss to the plaintiff was caused by the original theft of the two used vehicles by the Odoms. The theft resulted in a seizure of the vehicles which in turn resulted in a loss “by theft” to the plaintiff. The plaintiff argues that the endorsement does not require the loss to be directly caused by theft.

Liberty points out that the plaintiff never established that the Odoms stole the two used vehicles. It also claims that it never conceded that the two tractors were stolen but only conceded that someone had a superior right to their possession over the plaintiff’s.

Throughout the pleadings, arguments, and depositions presented on the plaintiff’s behalf, it was consistently stated that the two vehicles were originally stolen from their true owner and seized by the authorities as stolen vehicles. The trial court, in granting summary judgment for the plaintiff, stated that the vehicles were stolen. Summary judgment can be granted only where no triable, genuine issues of material fact remain. (Blaylock v. Country Mutual Insurance Co. (1980), 85 Ill. App. 3d 1042.) Whether the vehicles were initially stolen is a material fact in the plaintiff’s argument. However, Liberty did not question this allegation of fact and refers to the vehicles as stolen in its response in opposition to the plaintiff’s motion for summary judgment. For purposes of review, the trial court’s finding that the two used tractors were stolen vehicles will be applied.

We have found no other Illinois cases concerning the specific issue raised by the plaintiff under these facts. As previously noted, Reznick v. Home Insurance Co. (1977), 45 Ill. App. 3d 1058, allowed the plaintiff to recover for a loss under a comprehensive coverage policy when the police confiscated his car as a stolen vehicle. The plaintiff therein conceded that the situation was not one of theft. 45 Ill. App. 3d 1058, 1062.

The coverage provision in this case provides that Liberty will pay “for loss to covered automobiles under theft coverage-caused by theft or larceny.” Insurance contracts must be read and construed as a whole and if there is an ambiguity, the contract must be construed in favor of granting coverage to the insured. (National Discount Shoes, Inc. v. Royal Globe Insurance Co. (1981), 99 Ill. App. 3d 54.) The entire clause must be considered in evaluating its meaning. (Phaholyothin v. State Farm Mutual Automobile Insurance Co. (1982), 104 Ill. App. 3d 322.) Liberal construction of an insurance policy in favor of the insured must yield to rules of reasonable construction. Jenkins v. State Security Insurance Co. (1978), 56 Ill. App. 3d 737.

A reading of the entire provision indicates that direct loss to “covered automobiles” from theft is covered by the endorsement. The theft must occur to a “covered automobile.” Accepting the plaintiff’s argument that the Odoms did steal the two used vehicles, that theft was not of “covered automobiles” within the terms of the policy. The theft occurred at a time when the vehicles were not insured. Liberty cannot be held liable for a theft occurring before the vehicles were insured.

Case law in other jurisdictions supports this position. In Modern Sounds & Systems, Inc. v. Federated Mutual Insurance Co. (1978), 200 Neb. 46, 262 N.W.2d 183, the court interpreted the undefined word “theft” in an insurance policy broadly. Theft included a loss caused by any unlawful or wrongful taking of the insured vehicle. (200 Neb. 46, 52, 262 N.W.2d 183, 187.) Theft insurance furnished protection only against losses arising from criminal takings of insured vehicles. (200 Neb. 46, 52, 262 N.W.2d 183, 187.) Modern Sounds was not concerned with the issue presented by the instant plaintiff and found that an insurance exclusion did not exclude the loss in that case.

The plaintiff in Jackson v. Teachers Insurance Co. (1973), 30 Cal. App. 3d 341, 106 Cal. Rptr. 208, claimed that the loss she sustained by purchasing a stolen vehicle, which ultimately led to the taking of the vehicle by the Los Angeles police department, was a “theft” within the meaning of her insurance policy. The reviewing court stated that the plaintiff’s actual loss was the funds she paid for the stolen vehicle and that the purchase of the car was not a theft within the meaning of the policy. 30 Cal. App. 3d 341, 345, 106 Cal. Rptr. 208, 211.

In O.M. Gaudy, Inc. v. North Carolina Home Insurance Co. (1927), 145 Wash. 375', 260 R 257, the court was faced with the issue whether there could be recovery if the theft of the car took place prior to the issuance of the insurance policy. The plaintiff had sold the car to a man who misrepresented himself to be William Kyle. The man was really J. H. Baker. After Baker left with the car, the plaintiff obtained a rider to an insurance policy which would have covered the larceny committed by Baker. However, the court found that the rider did not provide coverage of the plaintiff’s loss because the automobile had been stolen by Baker prior to the rider taking effect. The subject matter intended to be covered was not in existence at the time the policy became effective, an essential in an insurance contract. 145 Wash. 375, 378, 260 P. 257, 258.

In the instant case, the two used vehicles were not covered by the insurance endorsement at the time of their initial theft. The plaintiff cannot recover for a loss caused by theft when the theft occurred outside the policy provisions. To allow such a result would mean that the plaintiff could recover for a loss to its vehicles, such as loss caused by fire, lightning, windstorm, flood, vandalism, etc., which occurred prior to the plaintiff insuring the vehicles under the endorsement. Without a specific provision that the policy would cover pre-existing loss or damage, no coverage can be found.

Therefore, summary judgment on the issue of liability was improperly awarded to the plaintiff. As a matter of law, the insurance endorsement in issue did not provide coverage for the loss suffered by the plaintiff. The theft provision did not extend to vehicles which were not “covered automobiles” at the time of the theft.

Having found that liability did not exist under the endorsement, the judgment awarding damages based on liability is reversed. The other issues raised by Liberty concerning jury instructions, and the amount of damages need not be reviewed in light of our determination that there is no liability.

The judgments of the circuit court of Kendall County are reversed.

Reversed.

HOPF and NASH, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    WATER PRODUCTS COMPANY OF ILLINOIS, INC., Plaintiff-Appellee, v. GLEN GABEL et al., Defendants-Appellants.
    Second District
    No. 82—920
    Opinion filed December 29, 1983.

      Daniel J. Kramer, of Yorkville, for appellants.
    Walter H. Hamilton, Jr., of Geneva, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

In this case, the defendants, who are the owners of a portion of the real estate parcels alleged to be subject to plaintiff’s blanket mechanic’s lien, appeal from the trial court’s ruling that plaintiff has a valid mechanic’s lien on their parcels for a pro rata share of the amount due on the account, less credits for some goods not incorporated into the premises.

The evidence in the trial court established that defendant Glen Gabel, the equitable owner of lots one through 20 of Millers subdivision, entered into an oral contract with plaintiff, a seller of underground water works material, whereby plaintiff would furnish water main materials to Gabel. While the property was an open field with no improvements installed at that time, a plat of subdivision was of record. The plat, filed in 1972, showed the lots, a 66 foot wide street which bisected the tract from west to east identified as “MILL (hereby dedicated) STREET,” and the approval of the plat by the city of Yorkville. At the time the plat was filed, the property was owned by Loren E. and Rhonda L. Miller. Pursuant to the contract and as shown by invoices attached to the lien claim, water main materials were either picked up by Gabel or delivered to the subdivision. Gabel used the material in installing a water main in the street shown on the plat and extending it to connect to the city water supply.

Plaintiff’s delivery of materials, having a value of $18,662.38, was completed on October 18, 1977. Gabel paid $2,000 on the contract. On December 13, 1977, plaintiff filed its claim for lien in the recorder’s office against Grundy County National Bank & Trust Company (Grundy Bank) under Trust No. 395 and defendant Glen Gabel as owners of lots 1 through 22 and for a lien on said land and improvements.

Defendant Ronald Cobb, as the holder of the beneficial interest of Old Second National Bank of Aurora land trust No. 2925, purchased lots 1 through 14 and 19 through 20 in fall 1978 from Gabel after Grundy Bank, which had a security interest in the property, foreclosed on it and the day before the scheduled foreclosure sale. Lots 15 through 18 were purchased by other parties. At the time Cobb purchased the lots, the water main installed by Gabel was not connected to any of the lots. Sometime after Cobb’s purchase, his company performed an operation known as stubbing into the various lots off the water main and arranged for the city of Yorkville to do the tap ins from the cast-iron main in the street to the individual lots.

On September 11, 1979, plaintiff filed its complaint against defendants to enforce its lien against all 20 lots and for a personal judgment against Gabel. On February 1, 1982, an agreed order was entered between plaintiff and the subsequent purchasers of lots 15 through 18 satisfying and releasing plaintiff’s lien against their four lots pursuant to payment by them to plaintiff of $3,800, but expressly not affecting the remainder of plaintiff’s suit.

At the conclusion of the trial, the court entered its decree of lien foreclosure and sale. The original owner, Gabel, was defaulted. The court found that Grundy Bank, as trustee, owned all of the lots at relevant times, and that, pursuant to the oral contract between Gabel and the plaintiff, the plaintiff had a valid subsisting first lien on lots 1 through 14 and 19 through 20. The court assessed four-fifths of the amount due on the contract (lien claim) amounting to $12,476.80, four-fifths of the costs, and interest against defendants. In the event of default of such payment, a sheriff’s sale was authorized.

Defendants first contend on appeal that Illinois law requires an apportionment on the face of the lien claim as to the amount due on separate parcels in order for a blanket lien to be enforceable against subsequent purchasers.

In support of this contention, defendants principally rely on Schmidt v. Anderson (1911), 253 Ill. 29, and the interpretation and application thereof in First Federal Savings & Loan Association v. Con-nelly (1982), 107 Ill. App. 3d 298. The appellate court in First Federal interpreted Schmidt to mean “that a third person dealing with the property should be able to learn from looking at the lien whether a lien exists and in addition the nature and character of the lien” (107 Ill. App. 3d 298, 301). It is apparent to us that an examination of a blanket lien like plaintiff’s would not reveal to third persons, like defendants, whether the lien includes stale or otherwise unviable claims or the amount that could be apportioned to each parcel that has a viable claim on it. We, therefore, would be prone to agree with defendant’s contention that, because no apportionment existed on the face of the lien as to the amount claimed to be due on separate parcels, it cannot be enforced against subsequent purchasers like defendants. However, in First Federal Savings & Loan Association v. Con-nelly (1983), 97 Ill. 2d 242, our supreme court reversed the appellate court in that case and considerably narrowed its prior holding in Schmidt.

In First Federal, the supreme court held the dating and apportionment requirements discussed in Schmidt to be necessary only to enforce the four-month limitations period under circumstances analogous to the facts of that case. The court went on to say that “[a]s for the apportionment requirement, ‘Schmidt did not lay down a per se rule that each time multiple properties are involved, allocation is required.’ [Citation.]” (97 Ill. 2d 242, 249.) Finally, the court said “[t]he language of the Mechanics’ Liens Act, while explicitly authorizing the filing of liens against multiple parcels, nowhere requires an apportionment of the total claim among the specific parcels,” and “[w]e see no reason to establish filing requirements other than those provided in that act.” 97 Ill. 2d 242, 251.

The supreme court’s recent decision in First Federal Savings & Loan Association v. Connelly (1983), 97 Ill. 2d 242, is controlling on this issue. There is no indication here that the lien claim was other than timely regarding the several parcels. (See 97 Ill. 2d 242, 249.) Therefore, plaintiff’s lien claim did not fail for lack of apportionment.

Defendants next cite Cronin v. Tatge (1917), 281 Ill. 336, for the proposition that an improvement done on an adjoining street must be connected with an improvement on the subject property to be lienable under the act. Plaintiff’s lien, according to defendants, was for goods delivered to the original owner which were incorporated by him into a water main to service all 20 lots of the subdivision. However, it was located under a street and not connected to the real estate so that it was not lienable pursuant to Cronin.

The evidence adduced at trial showed that the water main was placed in the street. Plaintiff’s vice-president testified that he personally observed the pipe being installed on the street shown on the plat of subdivision, admitted into evidence, and stated that it was customary to install such pipe in the dedicated portion. Defendant Cobb likewise testified that the water main was in the 66-foot right-of-way dedicated to the city.

The street in question was that designated “MILL (hereby dedicated) STREET” on the plat of subdivision filed in 1972 by the then-owners of the tract, the Millers. It is apparent that the street was to be the subject of a statutory dedication. A statutory dedication occurs when the owner of property files or records a plat which marks or notes on the plat portions of the premises as donated or granted to the public; it results in the conveyance of the dedicated portions in fee simple to the public. (Reiman v. Kale (1980), 83 Ill. App. 3d 773, 776; Ill. Rev. Stat. 1981, ch. 109, par. 3.) In this case, there was a plat filed showing the dedication and, at the same time, showing on its face the grantor’s donative intent.

However, the testimony at trial established that the city of Yorkville did not accept the street until some time in 1980. When, as here, an owner of land lays it out in lots with streets and has it platted, the municipality acquires no interest in the streets until it accepts them. (See La Salle National Bank v. City of Chicago (1974), 19 Ill. App. 3d 883, 886, citing Zemple v. Butler (1959), 17 Ill. 2d 434, 436.) The approval of the plat by the city council in July 1972 did not constitute an acceptance of streets shown thereon. (Nimpfer v. Village of Fox Lake (1929), 334 Ill. 46, 50.) Acceptance of the street by the municipality is necessary to complete the dedication. (Stevenson v. Lewis (1910), 244 Ill. 147, 154; Iglehart v. Chicago & Alton Ry. Co. (1909), 241 Ill. 268, 272; Pilgrim v. Chamberlain (1968), 91 Ill. App. 2d 233, 240; 11 E. McQuillan, Municipal Corporations sec. 33.43, at 737; sec. 33.45, at 744 (3d ed. 1983).) Therefore, while Illinois statute provides that the dedicated portion is conveyed in fee simple and the municipality holds the street in trust for the uses and purposes set forth or intended (Ill. Rev. Stat. 1981, ch. 109, par. 3), the fee title vests in the municipality when accepted (Hamilton v. Chicago, Burlington & Quincy R.R. Co. (1888), 124 Ill. 235, 243; see Shoreline Builders Co. v. City of Park Ridge (1965), 60 Ill. App. 2d 282, 291) so that the fee title here was not in the city of Yorkville until 1980.

Until acceptance the fee remained in the original proprietors, hence a conveyance of abutting lots before acceptance carried the title to the center of the street. (Iglehart v. Chicago & Alton Ry. Co. (1909), 241 Ill. 268, 272.) When the Millers conveyed the lots in question (the fee of the street then being in them), such conveyance also conveyed the fee in the street to their grantee(s) — not the fee absolutely, but the fee burdened with the offer of dedication which had been made but not yet accepted. (See Hamilton v. Chicago, Burlington & Quincy R.R. Co. (1888), 124 Ill. 235, 248-49.) Therefore, it appears that Gable and his grantees including Cobb, as successors in title to the Millers of the lots in question, also owned the fee to the adjoining street, since lots 1 through 20 included all lots on both sides of the street (Iglehart v. Chicago & Alton Ry. Co. (1909), 241 Ill. 268, 272).

The assertion in plaintiff’s brief, unsupported by citation of authority, that Gabel owned the land in which plaintiff’s materials were installed thus does find support in Illinois case law. However, the conclusion that Cronin v. Tatge (1917), 281 Ill. 336, has no application to the instant case does not necessarily follow. Though the street adjoining the lots was owned by private parties rather than a public entity at the time the contract was made and the materials were installed pursuant thereto, the strip of land in question was a platted street and as such carried a restriction requiring its use as a street (see Reiman v. Kale (1980), 83 Ill. App. 3d 773, 777-78).

Though the Mechanics’ Lien Act extends a lien to work done and material furnished for an improvement in the street, such an improvement must be connected with an improvement on the lot or tract of land. (Cronin v. Tatge (1917), 281 Ill. 336, 338.) The holding in Cronin is not restricted to municipal or public streets, and it is therefore applicable here. There is no evidence in this case that the water main in the street was connected to any improvement on the lots or that there were any improvements on the lots. The trial court therefore erred in ruling that the plaintiff had a valid lien on the subject property pursuant to the Mechanic’s Lien Act and in entering its decree of lien foreclosure and sale. That decree must be and is hereby vacated and reversed.

The evidence here did show that after Cobb purchased his lots an operation known as stubbing in was done and that tap ins to the individuals lots were made. We are not unmindful that the adjoining lots were probably benefitted once these connections were made. However, the Mechanics’ Lien Act is in derogation of the common law and its provisions must be strictly construed, and no one can claim a lien unless it clearly appears the requirements of the law have been complied with. (Cronin v. Tatge (1917), 281 Ill. 336, 337.) Had the legislature seen fit to extend the lien to cover the present state of facts it could have used apt words in doing so, and, while perhaps the wording of section 1 of the Act and meaning of the language used are not as clear as might be desired, it does not expressly nor by necessary implication extend the application of the lien to this type of situation. 281 Dl. 336, 338-39.

The complaint in this case consisted of two counts: the first was for a lien against the property, and the second was for a personal judgment against defendant Glen Gabel. The decree entered disposed of the first count only and contained the express finding required for an appeal to be properly taken pursuant to Supreme Court Rule 304(a) (87 Dl. 2d R. 304(a)). Having vacated and reversed that decree, we remand the cause to the trial court for further proceedings on count II.

Reversed and remanded.

HOPF and NASH, JJ., concur.

      Gabel’s grantees of lots 15 through 18 paid their share of the lien claim prior to trial, and the lien was released as to their lots.


author: PRESIDING JUSTICE SEIDENFELD-

text:
    GLEN T. DOBOSZ et al., Plaintiffs-Appellants, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellee.
    Second District
    No. 83—125
    Opinion filed December 29, 1983.

      Glen T. Dobosz, of Brady, McQueen, Martin, Collins & Jensen, of Elgin, for appellants, pro se.

    John P. Callahan, of Casey, Krippner & Callahan, of Geneva, for appellee.
   PRESIDING JUSTICE SEIDENFELD-

delivered the opinion of the court:

Glen T. Dobosz and Suzanne L. Dobosz (Dobosz) purchased a home and obtained a Homeowners Insurance “ ‘All-Risk’ Special Policy” from the State Farm Fire & Casualty Company (State Farm), purportedly in reliance on a brochure. Subsequently, water leaked through the basement walls of the home causing damage in the amount of $1,409.66. State Farm refused to pay, relying on an exclusion in the policy. Following a bench trial in a small claims action judgment was entered for State Farm. Dobosz appeals.

The coverage was purchased in July of 1980 and renewed for another year in July 1981. In April 1982 water leaked through the walls of plaintiffs’ basement and sump pump pit, causing the sump pump to stop and allowing water to accumulate in the basement. The ensuing damage was repaired at the cost of $1,409.66. When Dobosz presented a claim under the homeowners insurance policy State Farm denied coverage, asserting that the policy excluded that type of water damage. The trial court entered judgment for State Farm, finding that, despite the representations in the brochure, the policy excluded the type of damages claimed.

When Dobosz contacted State Farm agent Paul Buchholz to inquire about obtaining homeowners’ insurance, Buchholz sent Dobosz a copy of State Farm’s brochure, indicating that it described the various types of coverage available. Buchholz recommended the “All-Risk” policy, said it was the “Cadillac of the line,” told Dobosz that it would take a long time to explain the policy itself, and indicated that the brochure would show what the policy covered. Dobosz received the brochure, examined it, and instructed Buchholz to issue the insurance. Dobosz testified that he relied on the brochure to indicate the risks against which the home would be insured.

The brochure contains a series of captioned pictures, depicting three types of coverage: the “Basic policy,” the “Broad policy,” and the “ ‘All-Risk’ Special policy.” Under the heading for the insurance form Dobosz chose, reading, “The ‘All-Risk’ Special policy adds these coverages for your home plus many others not specifically excluded,” 10 pictures appear. One, captioned “Water damage,” depicts an open window through which rain is falling and below which a puddle has formed. No water-related risks are pictured under the Basic policy with the possible exception of a depiction labeled “Windstorm, Hail.” However, the section describing the Broad policy indicates that it covers damage resulting from “Freezing of plumbing systems,” “Tearing or bulging of water heating appliances,” “Weight of ice and snow,” and “Water escape from plumbing, heating, air conditioning or appliances.”

The brochure in small black print at the bottom states:

Thta brochure contains only a general description of coverages and is not a statement of contract.

All coverages are subject to the exclusions and conditions In the policy Itself.

Dobosz did not read the policy itself until after the damage occurred and testified that he had not received the policy previously. Buchholz testified that he sent the policy to Dobosz, along with a transmittal sheet, which indicated that the policy was enclosed. Do-bosz admitted that he received the transmittal sheet, but denied that he received the policy; however, he never called Buchholz to request a copy of the policy, claiming that he did not think insurance companies typically sent the policies to insureds. The trial court did not determine whether the policy was actually sent to Dobosz.

The standard policy which was placed in evidence, as relevant here, excludes loss from

“Water Damage, meaning:
a. flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;
b. water which backs up through sewers or drains, or
c. natural water below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure. ***”

The issue is whether an advertising brochure, containing a pictorial representation captioned “Water damage,” distributed by an insurance company through its agent, constitutes part of the insurance contract and controls over inconsistent language in the policy itself.

In construing an insurance contract, the court’s primary purpose is to give effect to the intent of the parties, which must be determined from the language of the policy, where that language is unambiguous. (Seeburg Corp. v. United Founders Life Insurance Co. (1980), 82 Ill. App. 3d 1034, 1039.) In this case, the policy itself excludes water damage, defined as, inter alia, flooding or seepage of water through a building or foundation. However, in interpreting an insurance policy, the court must consider the contract as a whole. State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 1064.

Various cases have held that a descriptive brochure furnished to an individual insured becomes a part of the insurance contract. (Laib v. Fraternal Reserve Life Association (1913), 177 Ill. App. 72, 75; Weinberg v. Insurance Company of North America (1976), 88 Misc. 2d 82,_, 388 N.Y.S.2d 69, 70; Morris v. Travelers Insurance Co. (Mo. App. 1976), 546 S.W.2d 477, 486; Barth v. State Farm Fire & Casualty Co. (1969), 214 Pa. Super. 434, 442-43, 257 A.2d 671, 675; see Winston v. Trustees of the Hotel & Restaurant Employees International Union Welfare Fund (1982), 110 Ill. App. 3d 163, 166-67.) Frequently, these cases arise in the context of a group insurance policy, where the individual group member receives only a certificate of insurance or a summary booklet and never sees the master policy. (See Winston v. Trustees of the Hotel & Restaurant Employees International Union Welfare Fund (1982), 110 Ill. App. 3d 163; Morris v. Travelers Insurance Co. (Mo. App. 1976), 546 S.W.2d 477; see also Hofeld v. Nationwide Life Insurance Co. (1975), 59 Ill. 2d 522.) However, an advertising brochure has been treated as part of the insurance contract where an individual insurance policy is at issue. (Weinberg v. Insurance Company of North America (1976), 88 Misc. 2d 82, 388 N.Y.S.2d 69; Barth v. State Farm Fire & Casualty Co. (1969), 214 Pa. Super. 434, 257 A.2d 671; see Laib v. Fraternal Reserve Life Association (1913), 177 Ill. App. 72.) The key considerations in making this determination are whether the insured relies on the brochure in procuring the insurance and whether the brochure differs from the policy itself. Weinberg v. Insurance Company of North America (1976), 88 Misc. 2d 82,_, 388 N.Y.S. 69, 70; Barth v. State Farm Fire & Casualty Co. (1969), 214 Pa. Super. 434, 442-43, 257 A.2d 671, 675; 13A Appleman, Insurance Law & Practice sec. 7534 (1976).

While there is language in some Illinois cases which suggests that representations in brochures or other material describing the coverage cannot vary the terms of the policy (see Kleinman v. Commercial Insurance Co. (1974), 19 Ill. App. 3d 1004, 1007; Gross v. University of Chicago (1973), 14 Ill. App. 3d 326, 336-38), these cases are distinguishable in that either the material did not substantially differ from the actual policy (Kleinman v. Commercial Insurance Co. (1974), 19 Ill. App. 3d 1004, 1007) or the variant material was not prepared by the insured. (Gross v. University of Chicago (1973), 14 Ill. App. 3d 326, 335.) Additionally, more recent Illinois case law suggests that descriptive booklets may be treated as part of the insurance contract. Winston v. Trustees of the Hotel & Restaurant Employees International Union Welfare Fund (1982), 110 Ill. App. 3d 163, 164; see Van Vactor v. Blue Cross Association (1977), 50 Ill. App. 3d 709, 715-17.

Given Dobosz’ reliance on the brochure in selecting this insurance policy and the contradiction between the representations in the brochure and the actual policy terms, State Farm’s brochure should be treated as part of the insurance contract between these parties. See Weinberg v. Insurance Company of North America (1976), 88 Misc. 2d 82, 388 N.Y.S.2d 69; Barth v. State Farm Fire & Casualty Co. (1969), 214 Pa. Super. 434, 257 A.2d 671.

When the brochure is so viewed, an ambiguity is presented in the contract terms. While a court is not to create an ambiguity in an insurance policy when none actually exists (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 255), the clear implication of State Farm’s advertising brochure differs from the exclusionary provisions of the policy issued to plaintiffs. This ambiguity exists despite the brochure’s statement that it is subject to the conditions expressed in the policy. (See Sparks v. Republic National Life Insurance Co. (1982), 132 Ariz. 529, 647 P.2d 1127, cert, denied (1982), 459 U.S. 1070, 74 L. Ed. 2d 632, 103 S. Ct. 490; Barth v. State Farm Fire & Casualty Co. (1969), 214 Pa. Super. 434, 257 A.2d 671.) Any ambiguity in an insurance policy, especially in provisions by which the insurer seeks to limit its liability, is construed against the insurer and in favor of the insured. (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 2d 250, 255.) The insurer must demonstrate that the claim falls within the clear scope of the exclusion, since the insured intended to obtain coverage and the insurer, who drafted the policy, could have defined the terms of the exclusion more specifically and more precisely in its brochure. (103 Ill. App. 3d 250, 256.) In our view, and in recognition of the complications of insurance policy provisions, it is not too much to ask of the insurer who markets its policies by the use of attractive and illustrative brochures to give fairly equal prominence to exclusions and coverages. Given these principles, we construe this policy with the brochure as providing coverage for the claimed damage.

Alternatively we find coverage here under principles of estoppel. An insurer may be estopped to rely on an exclusionary clause in the insurance policy where descriptive brochures or solicitation materials distributed by the insurer misrepresent coverage. (Vogel v. American Warranty Home Service Corp. (5th Cir. 1983), 695 F.2d 877, 881; Lewis v. Continental Life & Accident Co. (1969), 93 Idaho 348, 354, 461 P.2d 243, 249.) The estoppel concept as applied to insurance contracts is premised on the rationale that, where the insurer’s representations, through its agents or advertising materials, are intended to and do induce a person to secure a certain policy, the insurance company should be bound by its representations and the reasonable expectations of coverage created thereby. IN A Life Insurance Co. v. Brundin (Alas. 1975), 533 P.2d 236, 242; Craver v. Union Fidelity Life Insurance Co. (1973), 37 Ohio App. 2d 100, 106, 307 N.E.2d 265, 269.

The language used by the insurer should be considered in light of the natural response that language would evoke in any prospective policyholder. (Weinberg v. Insurance Company of North America (1976), 88 Misc. 2d 82,_, 388 N.Y.S.2d 69, 70; see Carver v. Union Fidelity Insurance Co. (1973), 37 Ohio App. 2d 100, 105, 307 N.E.2d 265, 269.) Thus, the fact that Glen Dobosz is an attorney is irrelevant, especially as there is no showing that he has any expertise in insurance matters or occupies any position, relative to State Farm, superior to that of the ordinary lay person, who is entitled to protection according to his or her reasonable understanding. Puritan Life Insurance Co. v. Guess (Alas. 1979), 598 P.2d 900; see Weinberg v. Insurance Company of North America (1976), 88 Misc. 2d 82,_, 388 N.Y.S.2d 69, 70.

Both the terms of State Farm’s brochure and the representations of its agent, Buchholz, lead to a reasonable expectation of comprehensive coverage of a wide variety of risks. The policy plaintiffs chose was called the “ ‘All-Risk’ Special policy” which was described as providing certain specified coverages in addition to the protection afforded under the Basic and Broad policies, “plus many others not specifically excluded.” In the context of the rest of the brochure, the general reference to “Water damage” in the section describing the “All-Risk” policy suggests coverage for all types of water damage. While water damage was not specifically discussed, Buchholz told Dobosz that this policy would cover everything and insure against all risks and that the brochure showed exactly what the policy covered. (Compare IN A Life Insurance Co. v. Brundin (Alas. 1975), 533 P.2d 236; Barth v. State Farm Fire & Casualty Co. (1969), 214 Pa. Super. 434, 257 A.2d 671.) As the brochure and Buchholz’ comments clearly implied coverage, State Farm is estopped to deny that the policy covers the damage here.

State Farm seeks to avoid plaintiffs’ estoppel theory by pointing to language in the brochure that refers to the policy and to plaintiffs’ failure to read the policy itself. While in small print at the bottom of one of its pages, the brochure contains the general reference to the policy exclusions, the description of the “All-Risk” policy also contains the statement that the policy “adds these coverages for your home plus many others not specifically excluded.”

In some cases, language in a descriptive brochure has been held to notify the insured of the policy’s limitations; however, in these cases, the brochure or other solicitation material typically has made clear reference to the limitation on which the insurer seeks to rely. (Kleinman v. Commercial Insurance Co. (1974), 19 Ill. App. 3d 1004, 1007; Standard of America Life Insurance Co. v. Humphreys (1975), 257 Ark. 618, 621, 519 S.W.2d 64, 67; Morris v. Travelers Insurance Co. (Mo. App. 1976), 546 S.W.2d 477, 487; see also Sahlin v. American Casualty Co. (1968), 103 Ariz. 57, 60, 436 P.2d 606, 609.) General statements concerning the policy usually are viewed as inadequate. Sparks v. Republic National Life Insurance Co. (1982), 132 Ariz. 529, 535, 647 P.2d 1127, 1133, cert, denied (1982), 459 U.S. 1070, 74 L. Ed. 2d 632, 103 S. Ct. 490; Barth v. State Farm Fire & Casualty Co. (1969), 214 Pa. Super. 434, 442-43, 257 A.2d 671, 675.

Gross v. University of Chicago (1973), 14 Ill. App. 3d 326, suggests that a descriptive brochure’s general references to the policy may be sufficient to notify the insured that the policy is controlling. However, in Gross, the plaintiff raised no estoppel argument (14 Ill. App. 3d 326, 336), and the brochure was not prepared by the insurer. Further, to the extent that Gross could be viewed as indicating that inconsistent policy provisions control despite representations in a brochure prepared by an insurer and relied upon by the insured, we disagree.

There is no warning in State Farm’s brochure that the policy terms are materially variant from the representations in the brochure. Where the dominant theme of the insurer’s advertising materials is comprehensive coverage, the insertion of a relatively inconspicuous caveat that coverage is subject to the policy terms should not be found sufficient to overcome the overall impression created by the brochure. Craver v. Union Fidelity Life Insurance Co. (1973), 37 Ohio App. 2d 100, 307 N.E.2d 265, 269; Barth v. State Farm Fire & Casualty Co. (1969), 214 Pa. Super. 434, 442-43, 257 A.2d 671, 675.

An insured typically is charged with notice of the contents of the insurance policy, especially if it were available to him or her, regardless of a failure to read the policy. (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 307.) Assuming that a copy of the policy was not sent to Dobosz, the transmittal sheet was sufficient to put Dobosz on notice that he should have received a copy of the policy, despite his subjective beliefs to the contrary. (See generally Sahlin v. American Casualty Co. (1968), 103 Ariz. 57, 436 P.2d 606.) However, Dobosz’ negligence in failing to obtain or read the policy itself does not preclude a finding that State Farm is estopped to deny coverage here, given the contrary representations made in the brochure and the ambiguities created thereby. Barth v. State Farm Fire & Casualty Co. (1969), 214 Pa. Super. 434, 257 A.2d 671; see Sparks v. Republic National Life Insurance Co. (1982), 132 Ariz. 529, 647 P.2d 1127, cert, denied (1982), 459 U.S. 1070, 74 L. Ed. 2d 632, 103 S. Ct. 490.

The judgment of the circuit court of Kane County is reversed and judgment is here entered in favor of the plaintiffs in the amount of $1,409.66.

Reversed and judgment entered.

NASH and HOPF, JJ., concur.


text:
    HAROLD HETTERMANN et al., Co-Executors of the Estate of Edwin H. Hettermann, Plaintiffs and Counterdefendants-Appellees, v. NANCY WEINGART, Defendant and Counterplaintiff-Appellant.
    Second District
    No. 83—181
    Opinion filed December 29, 1983.

      Peter D. Michling, of Weisz & Weisz, of Woodstock, for appellant.
    Joseph P. Condon, of Condon and Zopp, Ltd., of Crystal Lake, for appel-lees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Nancy Weingart, defendant and counterplaintiff, appeals from a judgment of the circuit court of McHenry County in favor of Harold Hettermann and Robert Hettermann as co-executors of their father’s estate, plaintiffs and counterdefendants, which gave them possession of certain real estate sold to Weingart by an installment contract after they declared that Weingart forfeited the property by failing to pay two monthly installments and certain insurance premiums. The judgment further denied Weingart’s countercomplaint to rescind the contract for failure by the sellers, Hettermanns’ parents, to comply with “An Act relating to installment contracts to sell dwelling structures” (Ill. Rev. Stat. 1981, ch. 29, pars. 8.21 through 8.22) (Act), finding Weingart did not exercise the statutory right to avoid a contract which does not comply with this Act until after Hettermanns dedared the forfeiture and that the Act did not apply in the instant case because the main purpose of the contract in question was the sale of a restaurant and tavern and not the sale of the apartment on the premises. Weingart argues on appeal that the trial court erred in finding that the Act did not apply in the instant case and that Hettermanns’ declaration of forfeiture did not deprive her of her right to avoid the contract.

The installment contract involved in this action, entitled “Purchase Agreement — Real Estate, Business and Personal Property” and executed by Weingart and Edwin Hettermann and his wife Dorothy, who predeceased him, provided for the sale of specified property in McHenry County in which the sellers owned and operated “Hetter-mann’s Restaurant and Tavern” to the defendant for $160,000. Weingart agreed to pay $35,000 of this price upon receiving evidence of Hettermanns’ good title to the property, and the remainder in subsequent monthly installments of $1,049 due on the 15th day of each month until November 15, 1987, with the remaining amount due on December 15, 1987. Weingart further agreed to maintain proper dramshop, public liability, hazard, and casualty insurance and to furnish to the Hettermanns satisfactory evidence of compliance with this requirement. The agreement apportioned $140,000 of the purchase price to the value of the real estate improvement, $10,000 of the purchase price to the value of the land, and $10,000 of the purchase price to the value of the equipment and personal property located on the premises. Weingart agreed not to operate the business under its past name, and the Hettermanns agreed not to open a similar business within a 15-mile radius for five years. The contract was contingent, upon Weingart’s ability to procure necessary licenses to sell liquor and to operate a restaurant on the premises. Paragraph 17 of the agreement mentions that the structure contains a residential area in which the Hettermanns were allowed to continue to reside for a specified period of time at a specified rent. No provisions were included regarding forfeiture if Weingart defaulted on her obligations.

The supplemental record on appeal consists of various notices delivered by Hettermanns to Weingart in which they notify her of their intent to bring a detainer action for her failure either to comply with her obligation to furnish certificates of insurance evidencing her compliance with that requirement or to make monthly installment payments. On April 28, 1982, they delivered to Weingart such a notice for her failure to pay her March and April installment payments and for her failure to reimburse them for their payment of insurance premiums on the property. On June 2, 1982, Hettermanns served Weingart with a demand for possession and on June 7 filed with the McHenry County recorder a declaration of forfeiture for Weingart’s failure to cure her default within 30 days. Another demand for possession was served upon Weingart on June 21,1982.

On June 21, 1982, Hettermanns filed a complaint in forcible entry and detainer (Ill. Rev. Stat. 1981, ch. 110, par. 9 — 101 et seq.). Weingart answered denying that she was unlawfully withholding possession of the described property from Hettermanns and filed a coun-tercomplaint for rescission alleging that on July 10, 1982, she elected to avoid the installment contract as evidenced by exhibit B attached to her countercomplaint (a notice to plaintiffs of her election to rescind), on the basis that the sellers failed to comply with the Act in that they did not attach a certificate of compliance or an express written warranty that they did not receive any notice of a dwelling code violation for the premises.

Hettermanns subsequently amended their complaint to include a request for rent. They also answered Weingart’s countercomplaint by stating that the Act did not apply in the instant case because the installment contract dealt with the sale of a business and that Weingart’s election to rescind the contract was invalid since she made the election after their declaration of forfeiture.

Evidence adduced at a hearing on the complaint and countercom-plaint established that the sellers had resided on the premises at certain points of time; that there was an apartment on the premises; that the fair cash rental value of the premises when the contract was executed was $1,400 per month, and that the current fair cash rental value of the premises, excluding the residence, was $1,000 per month; that the total amount due from Weingart for the two unpaid installment payments and unpaid insurance premiums totaled $13,362.48; that Weingart intended to operate a restaurant and tavern on the premises; that the apartment was not in violation of any building codes; that Weingart moved into the apartment in December 1977 with her three sons; and that she did not know that she had a right to elect to avoid the contract until June 1982. In closing arguments, Het-termanns argued that the contract concerned the sale of a restaurant and tavern, not a dwelling, and that Weingart’s election to avoid the contract occurred after Hettermanns had declared the forfeiture and after Weingart had ratified the contract by making monthly payments. Weingart argued that the Act applied because the premises contained a dwelling unit and that no forfeiture can exist until a court so determines.

The trial court entered judgment finding that the substance of the transaction was the sale of a restaurant and tavern and that the residential portion was incidental to that purpose, and that Weingart elected to rescind the contract after the declaration of forfeiture. The court granted possession in favor of Hettermanns but stayed the order for 30 days, entered judgment for Hettermanns in the amount of $13,362.48 plus costs, and entered judgment for Hettermanns against Weingart on the countercomplaint. Weingart’s appeal raises two issues:

1. Whether an installment contract seller may declare a forfeiture of the contract where the contract does not contain a provision granting the seller that remedy.
2. Whether “An Act relating to installment contracts to sell dwelling structures” applied to a transaction where the main purpose of that transaction was the sale of a restaurant and tavern and the incidental purpose was the sale of a dwelling unit.

Weingart contends that her election to rescind the contract, while subsequent to the Hettermanns’ declaration of forfeiture, cannot be waived by Hettermanns or herself and controls the parties’ relationship so that she is entitled to restitution of the amount of money she has paid toward the purchase of the premises reduced by an amount representing the fair market rental value of the premises for the period of time she occupied them. In so arguing, she claims that she acted swiftly to avoid the contract after she became aware of her right to do so in June 1982, and urges that this right should not be denied merely because Hettermanns declared a forfeiture prior to her election. She further contends that even if a declaration of a forfeiture could deny her the ability to avoid the contract because no contract would exist after such declaration, the declaration in the instant case was not sufficient because the contract itself did not contain a forfeiture provision and thus whether a forfeiture declaration is proper can never be “clearly and unequivocably” shown until so held by a court. She further urges that since Hettermanns accepted late payments from 1981 to early 1982, they needed to provide her with new notice prior to declaring forfeiture and that no notice of the impending forfeiture action had been given to her. She thus concludes that a contract existed at the time she elected to avoid it.

Hettermanns respond that Weingart has waived the issue of the subsequent effect of their acceptance of late installment payments by not raising this issue at trial. They further argue that even if she had the right to avoid the contract, such avoidance would only affect future obligations under the contract, not past ones, and that her continued payment under the contract ratified it, in essence arguing that to the extent Weingart performed, the contract was validated. Finally, they argue that any avoidance of the contract would only affect the portion of the contract concerning the apartment area.

Weingart points out that the instant contract does not contain a forfeiture clause. She then argues that the absence of such a clause means that “the right to declare forfeiture can never be clearly and equivocably shown.” While no Illinois case has expressly held that a party can declare a forfeiture only where the contract authorizes such a right, that rule, which other jurisdictions have adopted (see, e.g., Westercamp v. Smith (1948), 239 Iowa 705, 714, 31 N.W.2d 347, 352; see generally 91 C.J.S. Vendor & Purchaser sec. 97(1) (1955)), may be inferred from case law.

In Lovins v. Kelley (1960), 19 Ill. 2d 25, 28, the supreme court explained with respect to forfeiture clauses that “[cjourts of equity recognize the right of competent parties to incorporate nonpayment forfeiture provisions in their contracts.” The court continued in Eade v. Brownlee (1963), 29 Ill. 2d 214, 219, that therefore, although “[cjourts of equity abhor forfeitures *** where a forfeiture has been declared in the manner prescribed by the parties to a contract the court will give effect to the contract.” (See also Kingsley v. Roeder (1954), 2 Ill. 2d 131, 137; Aden v. Alwardt (1979), 76 Ill. App. 3d 54, 59; 666 North Orleans, Inc. v. Kors (1973), 11 Ill. App. 3d 676, 679.) In Allabastro v. Wheaton National Bank (1979), 77 Ill. App. 3d 359, 364, this court explained the law applicable to forfeitures:

“The law applicable to the question whether the contract expressly provides for forfeiture is not in serious dispute. The contract language upon which a forfeiture right is grounded must be strictly and narrowly construed. [Citation.] A forfeiture provision will be construed against the party seeking to enforce it. [Citation.] If the contract language is subject to a construction which will prevent a forfeiture, that construction must be applied, witE ambiguous words construed most strongly against the party who executed the contract. [Citation.]” (See also Ferrara v. Collins (1983), 119 Ill. App. 3d 819, 824.)

In Kirkpatrick v. Petreikis (1976), 44 Ill. App. 3d 575, 577, finally, the court stated that " [forfeiture may be allowed where there is a valid contract containing a forfeiture clause and the buyer is found actually in default.”

The above language makes it clear that a party may declare a forfeiture only where the contract expressly grants that right. Further support for that rule may be found in Horween v. Dubner (1965), 68 Ill. App. 2d 309, 317, where the appellate court affirmed the trial court’s refusal to declare that the defendant had forfeited an easement because the terms of the easement did not provide for a forfeiture if any violation occurred.

We conclude that the Hettermanns did not have a right to declare a forfeiture.

The remaining issue is whether “An Act relating to installment contracts to sell dwelling structures” applies to a transaction where the main purpose of that transaction was the sale of a restaurant and tavern and the incidental purpose was the sale of a dwelling unit. According to section 2 of the Act, effective August 11,1967:

“After the effective date of this Act, any installment contract for the sale of a dwelling structure shall be voidable at the election of the buyer unless there is attached to the contract or incorporated therein a certificate of compliance, or in the absence of such a certificate (i) an express written warranty that no notice from any city, village or other governmental authority of a dwelling Code violation which existed in the dwelling structure before the installment contract was executed had been received by the contract seller, his principal or agent within 10 years of the date of execution of the installment contract, or, (ii) if any such notice of violation had been received, a list of all such notices so received with a detailed statement of all violations referred to in such notice. The requirements of this section cannot be waived by the buyer or seller.” (Ill. Rev. Stat. 1981, ch. 29, par. 8.22.)

The Act defines a dwelling structure to be:

“any private home or residence, or any building or structure to be occupied or resided in by 12 or less family units. *** Dwelling structures do not include public or private hospitals, public or private school dormitories, fraternity houses, convents, monasteries, mental institutions, penal institutions, seminaries, State-licensed nursing homes or shelter care homes, or any federal, State, county or municipal institution or home.” Ill. Rev. Stat. 1981, ch. 29, par. 8.21(b).

The trial court found that the above definition did not include property containing an apartment sold through an installment contract where the primary purpose of the contract was to sell a restaurant and tavern. An analysis of rules of statutory interpretation applied to the instant Act as related to the present installment contract requires us to determine that the trial court erred in making this finding.

The first canon of statutory interpretation is to ascertain and give effect to the legislative intent as expressed in the statute. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46.) The legislative intent usually appears from a consideration of the statute’s language which affords the best means of its exposition. (People v. Robinson (1982), 89 Ill. 2d 469, 475; Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194.) If the legislative intent can be ascertained from the language of the statute, the language prevails and will be given effect; a court may not declare that the legislature did not mean what the plain language of the statute imports. (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.) In ascertaining the legislature’s intent, a court must consider a statute in its entirety and note the subject it addresses and the legislature’s apparent objective in enacting it. (Gill v. Miller (1982), 94 Ill. 2d 52, 56.) Although statutes in derogation of the common law are to be strictly construed in favor of the person sought to be subjected to their operation (Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 220), remedial legislation should be construed liberally to effect its purposes (S. N. Nielsen Co. v. Public Building Com. (1980), 81 Ill. 2d 290, 298).

The definition of dwelling structures in the instant Act does not exclude a structure in which only one portion of it is to be resided in by a family unit. Literally, the property in the instant case is a building to be occupied or resided in by 12 or less family units. Since the statutory definition contains exclusions of what do not constitute dwelling structures, this expression of certain exceptions must be construed as an exclusion of all other exceptions. See People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 199; see also In re Sneed (1977), 48 Ill. App. 3d 364, 368.

The legislative intent behind the enactment of the statute further supports this conclusion. In Shanle v. Moll (1974), 25 Ill. App. 3d 113, 116, the appellate court found that the purpose of this statute is “to furnish information for the protection of the buyer as to the condition of the property he is purchasing without requiring that purchaser to search the records or cause an inspection of the house for possible violations.” In Mack v. Seaman (1983), 113 Ill. App. 3d 151, 155, the appellate court expanded on this articulation of the purpose of the statute where it explained that installment contract sales inherently are susceptible to a greater degree of seller overreach than are traditional real estate sales, thus requiring greater protection for the buyer. In so finding, the court advanced a liberal construction of the Act so as to protect the buyer in that case. (113 Ill. App. 3d 151, 155.) In the instant case, Weingart is in the same position as a purchase of a building containing only a dwelling unit as in Mack. Therefore, exempting the instant contract from the protection afforded by this Act would be unfair and defeat the legislative intent.

Furthermore, logic supports the conclusion that the Act applies in the instant case. Clearly, the Act would apply if a purchaser bought a building containing dwelling units for the purpose of renting the units to others. Since the building would have been purchased for business purposes as in the instant case, no reason exists why the purchasers should be treated differently.

Hettermanns argue that the title of the Act excludes the Act’s coverage of the instant contract. While resort may be made to the titles of an act to determine legislative intent where the act’s meaning is doubtful (People v. Malone (1979), 71 Ill. App. 3d 231, 232; Merchants National Bank v. Olson (1975), 27 Ill. App. 3d 432, 433), the title here does not aid in the interpretation because the Act’s own definition of “dwelling structures” is at issue.

To sum up, we find that Hettermanns had no right to declare a forfeiture; a valid contract existed at the time that Weingart sought to avoid it. Furthermore, we find that the Act applies to this installment contract, and Weingart had the right to avoid the contract. Consequently, this cause is reversed and remanded to the trial court with directions that the trial court rescind the contract and order Hettermanns to refund the money paid by Weingart pursuant to the contract reduced by an amount representing the fair cash rental value of the property for the period of time during which Weingart had possession, thus restoring the parties to their original status.

The judgment of the circuit court of McHenry County is reversed and remanded with directions.

Reversed and remanded with directions.

HOPF and NASH, JJ., concur.