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Gass v. Carducci

OCTOBER 27, 1964.




Appeal from the City Court of Chicago Heights; the Hon. CARL W. McGEHEE, Judge, presiding. Judgment affirmed in part and reversed in part.


MR. PRESIDING JUSTICE BURKE delivered the opinion of the court:

This was a garnishment action filed by Anna M. Gass and George W. Gass as plaintiffs against State Farm Mutual Automobile Insurance Company as garnishee. On motion of plaintiffs, Anna Gass and George Gass, and the original defendant, Marilyn Carducci, the court entered a summary judgment in favor of the plaintiffs and against the garnishee, from which this appeal is taken.

Prior to September 29, 1956, garnishee issued a policy of automobile liability insurance to Marilyn Carducci and her husband. On September 29, 1956, Anna Gass, the mother of Marilyn Carducci, was a passenger in the Carducci automobile; she was seriously injured when thrown from the automobile as Mrs. Carducci attempted a sudden left turn. George Gass and Anna Gass brought an action for the injuries thus sustained and Anna Gass recovered a verdict of $50,000, while George Gass recovered a verdict of $7,000 for loss of services and consortium. Attorneys designated by garnishee defended the action for Mrs. Carducci, but she retained her own counsel when advised to do so by the garnishee's counsel because the ad damnum clause of the complaint exceeded the coverage limits of the liability policy. The garnishee's counsel did however handle the defense of the action. After certain testimony was given by Mrs. Carducci at the personal injury trial, garnishee's attorney gave her an oral reservation of rights under the policy on the grounds of non-cooperation, which was subsequently given to her in writing by letter the day before the judgments were entered on the verdicts. On appeal to this court (Gass v. Carducci, 37 Ill. App.2d 181, 185 N.E.2d 285) the judgments were affirmed; a Petition for Leave to Appeal to the Supreme Court was denied.

On May 2, 1963, plaintiffs instituted this garnishment action against State Farm by the filing of an affidavit and the statutory interrogatories to garnishee. Garnishee filed a jury demand and verified answers to the interrogatories denying the indebtedness. Plaintiffs then filed an unverified reply, alleging that garnishee had issued a policy of insurance to Marilyn Carducci against whom judgments had been entered and that garnishee did have in its possession a contract of insurance belonging to the said judgment debtor. Plaintiffs requested an immediate hearing upon the issues presented by the answers to the interrogatories and the reply made by the plaintiffs.

On September 12, 1963, plaintiffs filed a motion for summary judgment. Hearing on the motion was held on September 26, 1963, at which time plaintiffs were allowed to file nunc pro tunc as of July 6, 1963 and upon agreement between counsel for the parties, discovery interrogatories to garnishee, to which verified answers were filed by garnishee on September 5, 1963. These interrogatories asked, among other questions not important here, whether garnishee had issued a policy to and had defended the personal injury suit brought by plaintiffs against Marilyn Carducci, and whether the refusal of the garnishee to pay the judgments was based upon the lack of cooperation of Marilyn Carducci. The verified answers of garnishee recited, among other things, that a policy had been issued, that the garnishee had defended the personal injury suit, and that the garnishee refused to pay the judgments by reason of the breach by Marilyn Carducci of the assistance and cooperation clause of the policy.

The motion for summary judgment was predicated on the ground that the answers to the interrogatories had removed any material or factual issues from the case and that there was, therefore, no triable issue. According to the motion, these answers established as a matter of law that there was no lack of cooperation, and that even had there been non-cooperation, the garnishee had not been prejudiced thereby, and had waived any coverage defense founded thereon.

Garnishee filed no counteraffidavits, nor attempted to amend its answers to the interrogatories. The court concluded that there was no triable issue as a matter of law since there was no lack of cooperation as a matter of law. The court entered judgment against garnishee in the sum of $32,000, representing the $7,000 recovered by George Gass for loss of services and consortium and the $25,000 insurance policy "per person" coverage limit constituting one-half of the $50,000 recovered by Anna Gass.

Garnishee first maintains that a motion for summary judgment, made under Section 57 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 57), is not available in garnishment proceedings, for the reason that Section 43(a) of the Garnishment Statute (Ill Rev Stats 1963, c 62, § 43(a)) requires an immediate trial of the issues where the judgment creditor contests the truth or sufficiency of the garnishee's answers; that the answers to the statutory interrogatories in the instant case show that there is an issue of fact; and that a trial of the issue must therefore be had. While it is true that Section 43(a) requires a trial where issues of fact arise in a garnishment proceeding, it does not necessarily follow that a trial must be had in all garnishment actions. Proceeding to trial where no issue of fact or genuine issue of material fact is presented would be both wasteful and frivolous. The purpose of a motion for summary judgment is to test whether there is a genuine and material issue of fact. Kruse v. Streamwood Utilities Corp., 34 Ill. App.2d 100, 180 N.E.2d 731. Further, the Illinois Civil Practice Act (Ill Rev Stats 1963, c 110, § 1) specifically states that its provisions control in all cases at law and in equity, except, among others, in garnishment proceedings where the procedure to be followed is incorporated into the separate statute relating to garnishment actions; where, however, that separate statute is silent concerning a given matter of procedure, then the Civil Practice Act again controls. Ill Rev Stats 1963, c 110, § 1. Nowhere in the Garnishment Statute is there any mention of motions for summary judgment, either allowing or disallowing their use. Ill Rev Stats 1963, c 62, §§ 32-52. It therefore follows that, in a proper case, a motion for summary judgment is available in garnishment proceedings.

[3-7] The defense of non-cooperation alleged by garnishee as a bar to recovery, and upon which its claim to a trial of the issue is predicated, is contained in the answer to Interrogatory Number 10, which states:

"The lack of cooperation of Marilyn Carducci is based upon her testimony at the trial differing from her other statements, and her refusal to sign her statement, her refusal at the trial to discuss matters pertaining to the case with her counsel, Corwin D. Querrey, and her insistence through her counsel, John C. Mullen, without regard to liability that State Farm pay its entire policy to her mother."

Interrogatory Number 10 requested garnishee to "detail in each instance of such alleged lack of cooperation" the manner in which Marilyn Carducci allegedly failed to cooperate. Taken together or individually, the instances of non-cooperation set out in the answer to the interrogatory present no genuine issue of fact as to lack of cooperation. Garnishee's brief states that the matter of Marilyn Carducci's trial testimony differing from her other statements relates to the fact that she was unable to remember in her earlier statements who closed the door on her mother's side of the car but then testified at the trial that she, Carducci, closed it. The fact that a person suffers a lapse of memory and then subsequently remembers cannot be considered non-cooperation. Secondly, Mrs. Carducci's failure to sign statements made to garnishee's counsel, who by the way was Mrs. Carducci's counsel as well, cannot be considered non-cooperation; the mutual trust between attorney and client precludes the necessity of a signed statement by the client. Thirdly, garnishee's brief also states that Mrs. Carducci's refusal to discuss matters pertaining to the trial with her counsel related to the trial testimony concerning the closing of the door. It is difficult to see how this refusal could have prejudiced garnishee. See Gass v. Carducci, 37 Ill. App.2d 181, 185 N.E.2d 285. Finally, the fact that Mrs. Carducci's personal counsel suggested that garnishee settle the case for $25,000 cannot be considered as non-cooperation; settlement of adverse claims without court action is favored by the law and garnishee does not even intimate that this was a figure out of line with the injuries suffered in the accident. Also, garnishee was requested by Interrogatory Number 10, to "detail in each instance" the alleged lack of cooperation; the answer, as it stands, which was signed by garnishee's claims superintendent, does not contain a single concrete instance of lack of cooperation.

Garnishee further argues that the interrogatories and answers thereto of July 6, 1963, are merely part of the discovery process and cannot serve as a basis for a summary judgment. This argument, however, overlooks the fact that Supreme Court Rule 19-11(4) allows the use of interrogatories as evidence in the same manner as depositions of adverse parties. ...

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