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Int'l Harvester Co. v. Continental Cas. Co.

JANUARY 22, 1962.

INTERNATIONAL HARVESTER COMPANY, A CORPORATION, PLAINTIFF-APPELLANT,

v.

CONTINENTAL CASUALTY COMPANY, A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. PHILLIP F. LOCKE, Judge, presiding. Affirmed.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

Plaintiff appeals from a summary judgment in favor of defendant entered in plaintiff's suit for a declaration of its rights under a liability insurance policy issued by defendant.

On December 2, 1955 Lawrence Huttel, an employee of Doyle Freight Lines, was standing on plaintiff's freight dock waiting to have his truck unloaded. At the time, employees of plaintiff were unloading a truck of Gateway Transportation Company by means of an electric lift and, in so doing, struck Huttel with the lift, knocking him down and causing him to be injured. Plaintiff's employees reported the injury to their company on the day of the occurrence.

On January 18, 1956 plaintiff received a written notice of claim against it by Huttel, through his attorneys, Rosenbaum & Rosenbaum.

On July 19, 1957, plaintiff reported the accident to its own insurance carrier, Zurich Insurance Company.

On July 26, 1957 Huttel filed suit against plaintiff in the Superior Court of Cook County and plaintiff herein was served with summons as defendant in that suit on August 1, 1957. The summons was transmitted by plaintiff to Zurich on the same day.

Zurich sought to learn the identity of the truck being unloaded at the time of the accident, and in response to its inquiry was advised on August 12, 1957 by letter of Huttel's attorneys that the truck in question belonged to Gateway Transportation Company.

Zurich then sought to learn the identity of Gateway's insurance carrier, and on August 30, 1957 ascertained that such insurer was the defendant in the instant case.

Thereupon, by oral notice on August 30, 1957 and by letter on September 4, 1957 Zurich's attorneys, on behalf of plaintiff, notified defendant of the claim by Huttel and made demand upon defendant to take over plaintiff's defense. Defendant had no knowledge of the occurrence in question prior to this time.

The demand made on defendant was predicated upon its policy covering Gateway which provided that the insurance of Gateway would be extended to cover other persons unloading Gateway's trucks with its permission. *fn1

The facts above recited are taken from the pleadings, from interrogatory answers, and from affidavits filed in connection with defendant's motion for summary judgment. They are not in dispute. It is also beyond dispute that plaintiff comes within the definition of an additional insured under defendant's policy covering Gateway.

When plaintiff's demand upon defendant was refused, plaintiff brought this declaratory judgment action to obtain adjudication of its coverage under the Gateway policy and thus require defendant to insure and defend plaintiff against the Huttel claim.

Defendant contends that plaintiff is not entitled to such coverage because, in not giving defendant notice of the accident of December 2, 1955 until approximately September 1, 1957 plaintiff failed to comply with a provision of the policy requiring that defendant be given notice of an accident "as soon as practicable." This contention formed the basis of defendant's ...


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