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Gregory v. Highway Ins. Co.

FEBRUARY 8, 1960.

JESSE D. GREGORY FOR THE USE OF CHARLES FRANK CUSIMANO, D/B/A C & C TRUCKING COMPANY AND JAMES AIRAMO, PLAINTIFFS-APPELLEES,

v.

HIGHWAY INSURANCE COMPANY, A STOCK COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Will county; the Hon. DAVID E. ORAM, Judge, presiding. Affirmed.

PRESIDING JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT.

This is a garnishment proceeding instituted by Charles Frank Cusimano d/b/a C & C Trucking Co. and James Airamo against the defendant, Highway Insurance Company (a stock company), to collect a judgment entered by default in favor of the plaintiffs and against one Jesse D. Gregory on December 1, 1955, for the sum of $4,567.51 and costs for personal injuries and property damage sustained in an automobile collision on April 14, 1954, in Will County, Illinois. The present case was filed in the Circuit Court of Will County and was tried by the court without a jury on a lengthy stipulation of facts. The trial judge found the issues in favor of the plaintiffs and entered judgment in their favor, whereupon this appeal followed.

The plaintiffs initially filed in the instant case "Allegations and Interrogatories" to be answered by Highway Insurance Company, garnishee-defendant (hereinafter called "Highway"), which set forth the prior judgment obtained against Jesse D. Gregory (hereinafter called "Gregory"), for injuries to the plaintiff, Airamo, and for property damage sustained by the plaintiff, Cusimano, in a collision between a vehicle driven by Gregory and a truck driven by Airamo and owned by Cusimano. The plaintiffs' allegations and interrogatories averred that on the date of the collision Highway insured Gregory against bodily injury and property damage liability and that its policy was in full force and effect on that date. The garnishee-defendant admitted that it had a public liability policy on an automobile owned by Gregory but stated that it had no knowledge that said automobile was the vehicle involved in the collision referred to and further stated that it refused to pay the judgment rendered against Gregory on the following grounds:

A. Gregory breached Condition No. 1 of that insurance policy in that he failed to give written notice to the company or its authorized agent of this accident as soon as practicable.

B. Gregory failed to comply with Condition No. 16 of said policy in that he failed and neglected to cooperate with the company.

C. Gregory failed to give notice of the pendency of the action against him and failed to give notice of claim and suit as required by Condition No. 2 of said policy.

Defendant contends in its brief and argument that Gregory failed (1) to give written notice of the accident to the defendant insurance company or any of its authorized agents as soon as practicable and in sufficient detail as required by the policy, and (2) failed to cooperate with the company when he left his only known address without advising the company where he could be reached. Defendant further contends that the plaintiffs herein have no better rights than Gregory and that his defaults and failure to cooperate with his insurer bar any recovery by them under the policy. On the other hand, it is the position of the plaintiffs that the garnishee-defendant failed to sustain the burden of proof required of it to establish the affirmative defenses of failure of notice and non-cooperation raised by it; that insurance policy provisions having been prepared by the insurance carrier are to be construed most strongly against the insurer and in favor of the insured; that in fact Gregory did contact the garnishee-defendant between the time of the accident and the trial of the original action by plaintiffs against Gregory; that adequate notice of the accident was given to the defendant by plaintiffs' attorneys; that the garnishee-defendant cannot preponderate on the issue of failure of cooperation having itself failed to exercise reasonable diligence in ascertaining the whereabouts of the insured and having demonstrated a lack of good faith in attempting to obtain the cooperation of its insured.

On March 15, 1954, the defendant, Highway, issued its combination automobile policy to Gregory with bodily injury liability limits of $5,000/10,000 and property damage coverage of $5,000, covering one 1941 Chevrolet 4-door sedan for a period of one year. The insured's address, as given in the policy, was 6117 South Indiana Avenue, Chicago, Illinois. The policy contained the usual provision with reference to notice of accidents ("When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses."). In addition to the usual provision requiring the insured to immediately forward to the company every demand, notice, summons or other process, the policy provided that no action would lie against the company unless, as a condition precedent thereto, the insured should have fully complied with all the terms of the policy, and further that the "insured shall cooperate with the company and, upon the company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits . . ."

On April 14, 1954, approximately one month after the policy became effective, an automobile collision occurred at the intersection of Route 30 and Route 42-A in Will County, involving the plaintiffs' semi-trailer and a motor vehicle driven by Gregory. The stipulation of facts states that Mr. Roy C. Johnson, who was in charge of the investigation of automobile claims for the garnishee-defendant, would testify if called as a witness that no report of this accident was ever received by Highway from its insured, Gregory, and likewise no summons or other process was ever received by Highway from its insured. It is undisputed that subsequent to this collision there was an amendment to the coverage clause in the policy in question, which amendment, dated May 28, 1954, changed coverage from the 1941 Chevrolet originally insured to a Plymouth four-door Sedan described in the policy amendment. Following is a summary of the evidence as stipulated by the parties. On May 6, 1954, Highway received a letter of said date from Krusemark and Krusemark, attorneys for the plaintiffs, which stated that that firm represented the plaintiffs in connection with their claims arising out of this auto accident, set forth the place of the collision, their clients' version of the collision, the nature and extent of the personal injuries and property damage, and requested that negotiations be undertaken looking to a possible settlement of the claims. This communication implied that Highway had previously corresponded with the plaintiffs or their counsel concerning this accident. On May 18, 1954, Attorneys Krusemark and Krusemark again wrote a letter to Highway inquiring as to Highway's disposition with reference to these claims. On June 1, 1954, Krusemark and Krusemark addressed a letter to Gregory at 6117 South Indiana Avenue, Chicago, Illinois, copy of which was sent to Highway, which letter advised Gregory of the plaintiffs' claims and notified him that the writers claimed an attorney's lien in that connection. On June 15, 1954, Highway addressed a letter to Krusemark and Krusemark, advising that that company was in receipt of prior correspondence pertaining to the accident in controversy, and "upon completion of our investigation we will contact you with reference to an amicable disposition if warranted." On June 19, 1954, Attorneys Krusemark and Krusemark addressed a letter to Highway advising that suit had been filed in the local circuit court on these claims but that if Highway desired, plaintiffs' counsel would hold up service of summons preparatory to completion of Highway's investigation. Counsel for plaintiffs pointed out that they would delay service of summons if Highway would agree to accept process in the event an amicable disposition of the claims could not be worked out. Thereafter, by letter dated June 25, 1954, Highway advised plaintiffs' attorneys that "we are in receipt of your letter of June 19th and would appreciate very much if you would hold up on the serving of the summons as we are attempting to complete our investigation of said accident. We cannot however agree to accept process as same would have to be completed through the proper channels by serving our policyholder and they in turn submit said process to the company for handling. Thanking your for your cooperation." Subsequently, on July 9, 1954, Krusemark and Krusemark wrote to Highway "Pursuant to our most recent conference with the investigator assigned to this case, we are enclosing herewith the necessary proofs of loss incurred by our client as the result of the above accident. We will summarize them as follows:

"Property damage to tractor $ 588.50 Property damage to trailer 1914.57 Net cargoe loss 444.01 Towing charge 35.00 Tractor trailer, loss of use 100.00 Rental charges, approximately 200.00 ________ $4182.08

"The driver, James Airamo, suffered a head injury for which he did not seek any medical attention. However, he was forced to miss three days' work and has suffered serious headaches and bodily discomforts as a result thereof. Our demand for settlement of this case is the exact amount as indicated by the total of the property damage, loss of use, towing and rental, which is $4182.08. For James Airamo we demand $300.00. We ask that you take immediate action on this matter. We were assured by your adjuster that we would receive a response from you by the end of the month. The loss of use of $1,000.00 is based upon a four weeks' loss of use of both units, the tractor and trailer, and is computed at the basis of $100.00 loss per day which can be substantiated by our client's books of account. The rental figure is the cost incurred by our client in renting the trailer to replace the one damaged. Incidentally, the Commercial Truck Body Company has indicated that the trailer is a total loss. Our book value of the trailer is approximately $2200.00." To this communication were attached four invoices or estimates to substantiate the asserted items of damage.

Thereafter, by letter dated August 5, 1954, counsel for plaintiffs advised Highway "On July 9, 1954, we gave you a complete list of the loss suffered by our client as a result of the above accident. We believe that you have had adequate time to study this file and to contact us, in regard to a possible settlement. Our client is becoming very impatient. Unless we hear from you within one week we will assume that you have decided to decline our claim and will proceed with our efforts to have Jesse D. Gregory served with summons."

On August 9, 1954, Highway addressed a registered letter "return receipt requested" to Mr. Jesse D. Gregory at 6117 So. Indiana Avenue, Chicago, Illinois: "With further regard to your loss, and pending investigation of the above captioned matter. Kindly come to this office at your convenience on or before August 13, 1954. It is very important that we discuss this matter with you in person. In the event that it will be impossible for you to appear on or before the aforementioned date; kindly contact the undersigned by telephoning WEbster 9-5225, extension 19, so that an appointment may be made. Your prompt attention is requested in this matter. . . ." This registered letter was returned marked, "Moved — Left No Address." A carbon copy of this letter was sent to the insurance broker who sold this policy. The garnishee-defendant maintained that preliminary forms to be completed by Gregory were sent to him with this letter dated August 9, 1954, which was the company's only attempt to communicate with Gregory by mail; however, that letter made no reference to any forms or any enclosures.

Meanwhile, shortly before July 1, 1954, Highway conducted an investigation in connection with these claims, during which an investigator called at the Chicago address, 6117 South Indiana Avenue, interviewed various tenants in the building; was unable to find Gregory, and was likewise unable to find anyone who knew Gregory's address. As early as June 16, 1954, Highway had made an investigation which indicated that Gregory was in the Veterans' Hospital at Hines, Illinois, and after failing to find Gregory at the South Indiana Avenue address, on July 1, 1954, the investigator went to Hines where, after contacting government agencies, he was unable to find Gregory's whereabouts. As a matter ...


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