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Remsen v. Midway Liquors

APRIL 19, 1961.

DELBERT E. REMSEN, ADMINISTRATOR OF THE ESTATE OF GEORGE W. REMSEN, DECEASED, AND ELIZABETH N. REMSEN, PLAINTIFFS-APPELLANTS,

v.

MIDWAY LIQUORS, INC., A CORPORATION, AND TOWN HALL TAVERN, INC., A CORPORATION, DEFENDANTS, AND EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, INTERVENOR-APPELLEE.



Appeal from the Circuit Court of Winnebago county; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Affirmed.

SPIVEY, J.

This appeal involves an order of the Circuit Court of Winnebago County distributing the settlement proceeds for injuries in loss of support in an action under Art. VI, Sect. 14 of the Liquor Control Act, Chap. 43, Sect. 135, Ill. Rev. Stat. 1957.

George W. Remsen was insured under a family automobile insurance policy issued by the intervenor, Employers Mutual Liability Insurance Company of Wisconsin. In addition to the usual and customary coverage provided, Remsen obtained and paid an additional premium for what is termed "Family Protection Against Uninsured Motorists", said coverage affording liability limits of $10,000.00 for each person and $20,000.00 for each accident.

On September 29, 1957, Remsen and his wife, Elizabeth, were involved in an automobile collision with one John Reynold Carlson who carried no liability insurance on his automobile. As a result of the occurrence, Remsen received injuries from which he subsequently died and his wife, Elizabeth, was seriously injured in her person.

Subsequently, on September 23, 1958, Delbert E. Remsen, as Administrator of the Estate of George W. Remsen, and Elizabeth N. Remsen, individually, instituted a Dram Shop action under the provisions of Art. VI, Sect. 135 of the Liquor Control Act against Midway Liquors, Inc. and Town Hall Tavern, Inc. alleging that they caused the intoxication of Carlson in whole or part.

Count I of the complaint is an action by the Administrator for the benefit of the dependents of George W. Remsen, his widow, Elizabeth, and their five minor children, for injury in their means of support. Count II is an individual action by Elizabeth N. Remsen, the widow, for injuries to her person. The appeal presents no issue as to the liability of either dram shop defendant.

Following the filing of the dram shop action (date not disclosed by the record), the suit was settled by the Administrator and Elizabeth Remsen individually with Midway Liquors, Inc. and a covenant not to sue executed. By the terms of this settlement Midway Liquors, Inc. paid to the Administrator the sum of $6,250.00 for injury to means of support and to Elizabeth N. Remsen the sum of $6,250.00 for her personal injuries. On November 18, 1959, by stipulation of the Administrator and Elizabeth Remsen, an order dismissing the cause of action as to Midway Liquors, Inc. was entered.

Thereafter (date not disclosed by the record), the Administrator entered into a settlement agreement with the defendant Town Hall Tavern; by the terms of said agreement the Administrator was paid the sum of $13,250.00 for injury to means of support. On March 7, 1960, Elizabeth Remsen dismissed Count II of the complaint. The record is absent of any order dismissing Count I as to the defendant Town Hall Tavern.

Pursuant to a previous order of July 21, 1959, all settlement funds were deposited with the Clerk of the Court pending further order of distribution. This fund amounted to $26,500.00 which included $6,625.00 received by Elizabeth Remsen for her personal injuries, and $19,875.00 received by the Administrator for the loss of means of support alleged to have been sustained by the dependents of George W. Remsen, deceased.

On February 19, 1960, Employers Mutual Liability Insurance Company of Wisconsin was granted leave to intervene and file an intervening petition as provided by Chap. 110, Sect. 26(1) (c), Ill. Rev. Stat. 1959.

In their intervening petition, Employers allege they have been subrogated to $19,500 of the settlement proceeds of the dram shop action and ask that they be reimbursed in that amount out of the funds in the hands of the Clerk of the Court. The petition further alleges that Employers had paid pursuant to its insuring agreement rider for family protection against an uninsured motorist the sum of $10,000.00 to Delbert E. Remsen as Administrator and $9,500.00 to Elizabeth N. Remsen.

In consideration of these payments Delbert E. Remsen as Administrator of the Estate of George W. Remsen, and Elizabeth N. Remsen each executed identical instruments (except as to amount) to Employers styled "Policy Release and Trust Agreement" each dated October 22, 1958. These instruments were prepared by a representative of Employers and provided as follows:

"Know all men by these presents: that for and in consideration of the payment to me of . . . by Employers Mutual Liability Insurance Company of Wisconsin, hereinafter called the Company, the receipt of which is hereby acknowledged, I do hereby fully and forever release and discharge the Company from any and all claims and demands, actions and causes of action, which I may have against the Company under the `Family Protection Against Uninsured Motorists' endorsement attached to Policy No. 0237-00-024257, because of the death of George W. Remsen, resulting or to result from that certain accident on or about the 29th day of September, 1957, at or near the intersection of Route 173 and Collins Road, County of Winnebago, State of Illinois.

"I have not made any settlement with or prosecuted to judgment any action against any person or organization who may be legally liable for bodily injury on account of which the Company is making this payment. Such person or organization, wherever mentioned in this Release and Trust Agreement, shall include John Reynold Carlson and also any person or organization who may be liable for said bodily injury under Section 14 or 15 of Article VI of An Act of the General Assembly of the State of Illinois entitled `An Act Relating to Alcoholic Liquors,' in force February 1, 1934, or any law amendatory thereof.

"I agree that this settlement is in full compromise of a doubtful and disputed claim both as to the question of liability and that the payment is not to be construed as an admission of liability.

"I further agree that in consideration of this payment:

(a) any amount which I may be entitled to recover from any person who is an insured under the bodily injury liability coverage of said policy shall be reduced by the amount of this payment;

(b) that the Company shall be entitled to the extent of this payment of $10,000 to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery I may have against any person or organization legally responsible for the bodily injury because of which this payment is made;

(c) that I shall hold in trust for the benefit of the Company all rights of recovery to the extent of the payment of . . . which I shall have against such other person or organization because of the damages which are the subject of claim made under the `Family Protection Against Uninsured Motorists' endorsement;

(d) that I shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights;

(e) that if requested in writing by the Company, I shall take, through any representative designated by the Company, provided the Company pays all attorney's fees, costs and expenses, such action as may be necessary or appropriate to recover such payment as damages from such other person or organization, such action to be taken in my name; in the event of a recovery, the Company shall be reimbursed out of such recovery for expenses, costs and attorneys' fees incurred by it in connection therewith;

(f) that I shall execute and deliver to the Company such instruments and papers as may be appropriate to secure my rights and obligations and those of the Company established by this provision."

The provisions of the policy endorsement covering Family protection Against Uninsured Motorists (Bodily Injury Liability) as amended, insofar as they are germaine provide:

"1. Damage for Bodily Injury Caused by Uninsured Automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called `bodily injury', sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purpose of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount ...


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