Unitrin Preferred Insurance Company v. Dobra
2 N.E.3d 360
Ill. App. Ct.2014Background
- FGD Construction applied a flammable Synteko floor finish in the Tuluce residence; homeowners returned the next day to find a fire. Unitrin (insurer) paid repairs and sued FGD for recovery of damages.
- Competing expert investigations: Unitrin’s expert concluded finish dripped into a basement duct and vapors were ignited by a furnace pilot; FGD’s expert concluded the fire began on a kitchen countertop by an electrical fault in a television.
- FGD retained Dr. Frederick Mowrer, a fire scientist and fire protection engineer with advanced degrees and long involvement in NFPA and development of NFPA 921, to evaluate the competing hypotheses using NFPA 921 methods and photographs.
- Trial court initially barred Dr. Mowrer from testifying about cause/origin but, after an offer of proof showing his qualifications and methodology, allowed him to testify; Unitrin did not cross-examine him on qualifications and did not present a rebuttal expert.
- The jury found FGD’s actions were not the proximate cause of the fire and returned a verdict for FGD; Unitrin’s motion for new trial was denied and it appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Mowrer’s testimony on fire cause and origin | Dr. Mowrer is a fire protection engineer, not a cause/origin investigator; lacking requisite expertise and improperly relied on photographs | Mowrer’s fire‑science expertise and NFPA 921 work qualify him to test hypotheses and opine on origin/cause | Trial court did not abuse discretion; Mowrer qualified under Rule 702 and his testimony was admissible |
| Whether expert testimony usurped jury’s role / prejudiced plaintiff | Mowrer ‘‘chose’’ which theory was consistent with facts, effectively supplanting the jury; jurors later said his testimony was decisive | Expert testimony was properly offered to aid the jury on a technical issue; jury free to accept or reject it; Unitrin could have offered rebuttal expert | No usurpation or prejudice; expert testimony aided the jury and Unitrin wasn’t precluded from countering it |
Key Cases Cited
- People v. Free, 94 Ill. 2d 378 (discussing standard for admitting expert testimony)
- Novak, 163 Ill. 2d 93 (expert need only have knowledge beyond that of layperson to assist trier of fact)
- Gibson v. Healy Brothers & Co., 109 Ill. App. 2d 342 (test of expert competency is sufficient knowledge to permit opinion to go to jury)
- Schaffner v. Chicago & North Western Transportation Co., 129 Ill. 2d 1 (determination of expert status rests with trial court)
- Bloomgren v. Fire Insurance Exchange, 162 Ill. App. 3d 594 (distinguishable: lay/volunteer firefighter opinion improperly admitted)