NO. 4-01-0591

JUSTICE STEIGMANN delivered the opinion of the court:

In September 2000, plaintiffs, Towne Realty, Inc., andZilber, Ltd. (collectively Towne and Zilber), filed an amendedcomplaint against defendant, John C. Shaffer, seeking to recoverfor property damage caused by a fire in an apartment Shafferrented from Towne and Zilber. In October 2000, Shaffer filed amotion to dismiss the amended complaint under sections 2-615 and2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2000)), arguing that the language of his lease agreement with Towne and Zilber precluded them from suing him forproperty damage caused by fire. Following a June 2000 hearing,the trial court granted Shaffer's motion to dismiss.

Towne and Zilber appeal the trial court's dismissal oftheir amended complaint, and we affirm.

In January 1998, Shaffer entered into an agreement withTowne and Zilber to lease an apartment in the Lincoln Towerbuilding in Springfield for a three-month period (from February1, 1998, through April 30, 1998). The form lease agreement,which was drafted by Towne and Zilber, provided, in pertinentpart, as follows. Under paragraph two, the "yield-back" clause,Shaffer agreed to

"keep the [apartment], *** in good order andrepair and be responsible for any damage tothe premises, appliances, furniture, furnishings[,] and equipment, except such as iscaused by normal wear and tear."

That paragraph also provided that "[a]t the expiration or termination of this lease, [Shaffer] will yield up the demised premises in good condition and repair, ordinary wear and tearexcepted."

Under paragraph three of the lease, Shaffer agreed

"not to use or keep in or about the premisesanything which will affect the validity of orincrease the premiums on [Towne and Zilber's]property damage and liability insurance policies on the subject premises."

Paragraph four provided, in pertinent part, as follows:

"[Shaffer] shall hold [Towne and Zilber]harmless for any loss or damage which[Shaffer] may sustain:

(c) From fire, water, rain,frost, ice, snow, gas, odors[,] orfumes from any source whatsoeverand from injury or damage caused bythe bursting or leaking of pipes orthe failure or backing up of sewerdrains and pipes.

(d) From any injury to anyperson or damage to any property."

Under paragraph six of the lease, Shaffer agreed to

"keep the premises in good order and repairand be responsible for any damage to thepremises, appliances[,] and equipmentthereon, except such as is caused by normalwear and tear."

Paragraph 14 of the lease provided as follows:

"If during the term of this lease thebuilding is so damaged by fire or other casualty, not occurring through [Shaffer's] negligence, that the demised premises is rendered wholly unfit for occupancy and thedemised premises cannot be repaired withinthirty (30) days from the happening of saidcasualty, then this lease shall cease andterminate from the date of such casualty."

Paragraph 23 of the lease provides as follows:

"[Shaffer] hereby expressly waives andreleases any cause of action or right ofrecovery which [Shaffer] may have hereafteragainst [Towne and Zilber] for any loss ordamage to the leased premises or to the contents thereof belonging to [Shaffer], causedby fire, explosion, or any other risk coveredby [Shaffer's] insurance."

Paragraph 11 of the "Rules and Regulations" portion ofthe lease provided that "[i]t is the responsibility of [Shaffer]to provide insurance coverage for his personal property."

At some point before Towne and Zilber and Shafferentered into the lease, Travelers Indemnity Company issued aninsurance policy to Towne and Zilber (hereinafter the Travelerspolicy), which covered damage to property caused by fire, amongother things.

In March 2000, Towne and Zilber filed a complaintagainst Shaffer, alleging that on March 9, 1998, a lit candle oroil lamp in Shaffer's apartment caused a fire in the LincolnTower building. In September 2000, Towne and Zilber filed anamended complaint, alleging that Shaffer acted negligently whenhe (1) placed a lit candle or oil lamp near combustible materialin such a way that it created a fire risk to his apartment andthe Lincoln Tower building and (2) failed to extinguish the litcandle or oil lamp prior to leaving it unattended. Towne andZilber sought $671,463.95 for damage to its property, all but$10,000 of which was covered by the Travelers policy.

In October 2000, Shaffer filed a motion to dismiss theamended complaint under sections 2-615 and 2-619 of the Code (735ILCS 5/2-615, 2-619 (West 2000)), arguing that (1) "[f]or allpractical purposes, this is a case brought in the name of theinsureds, Towne Realty and Zilber, Ltd., for the use and benefitof Travelers Indemnity Company"; and (2) when Towne and Zilberand Shaffer entered into the lease agreement, they contemplatedthat Towne and Zilber and its insurer would bear the risk of lossdue to fire.

Towne and Zilber later filed a response to the motionto dismiss, arguing that the lease imposed liability on Shafferfor negligently caused fires. Following a June 2000 hearing onShaffer's motion to dismiss, the trial court took the matterunder advisement. The court subsequently granted the motion todismiss, upon finding that (1) "the lease provides [Towne andZilber] would maintain fire insurance on the premises"; and (2)Shaffer was a coinsured under Towne and Zilber's insurancepolicy.

This appeal followed.

A. Standard of Review

Section 2-619 motions to dismiss provide a means fordisposing of issues of law or easily proved issues of fact. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112,115, 619 N.E.2d 732, 735 (1993). In the present case, the groundadvanced for dismissing the complaint is that the claims assertedtherein are barred by a defense that completely negates theasserted causes of action. See Payne v. Lake Forest CommunityHigh School District 115, 268 Ill. App. 3d 783, 784-85, 644N.E.2d 835, 836 (1994); 735 ILCS 5/2-619(a)(9) (West 1998). Thetrial court should grant the motion and dismiss the complaint if,after construing the allegations in the light most favorable tothe plaintiff, no set of facts can be proved that would entitlethe plaintiff to recover. We review de novo the trial court'sgranting of a defendant's section 2-619 motion. Henrich v.Libertyville High School, 186 Ill. 2d 381, 386, 712 N.E.2d 298,301 (1998).

In Vernon v. Schuster, 179 Ill. 2d 338, 344, 688 N.E.2d1172, 1175 (1997), the supreme court addressed the standard ofreview for cases dismissed pursuant to section 2-615 of the Codeand wrote the following:

"The question presented by a section 2-615motion to dismiss is whether the allegationsof the complaint, when viewed in a light mostfavorable to the plaintiff, are sufficient tostate a cause of action upon which relief canbe granted. [Citations.] A cause of actionwill not be dismissed on the pleadings unlessit clearly appears that no set of facts canbe proved which will entitle the plaintiff torecover. [Citation.]

*** Since ruling on a motion to dismissdoes not require a court to weigh facts ordetermine credibility, we review the complaint de novo."

Towne and Zilber argue that the trial court erred bygranting Shaffer's motion to dismiss the amended complaint. Wedisagree.

Under Illinois law, a lease is an agreement subject tothe law of contracts. American Apartment Management Co. v.Phillips, 274 Ill. App. 3d 556, 559, 653 N.E.2d 834, 836 (1995). Leases should be construed as a whole to ascertain the parties'intent (see Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d314, 320, 597 N.E.2d 622, 625 (1992) ("courts must look to thelease 'as a whole' and the spirit of the agreement between theparties")), and the words used should be given their plain andgenerally accepted meaning (Book Production Industries, Inc. v.Blue Star Auto Stores, Inc., 33 Ill. App. 2d 22, 31, 178 N.E.2d881, 885 (1961)). In instances where the terms of a lease areunambiguous, they must be enforced as written, and no court canrewrite a lease to provide a better bargain to suit one of theparties. Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340,349, 736 N.E.2d 145, 154 (2000). If uncertainties exist regarding the meaning of the language of the lease, courts construe thelanguage against the lessor and in the lessee's favor. AmericanNational Bank & Trust Co. v. Lembessis, 116 Ill. App. 2d 5, 11,253 N.E.2d 126, 128 (1969); see also Restatement (Second) ofContracts