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Shapiro v. Diguilio

MAY 1, 1968.

GEORGE L. SHAPIRO AND ANGELO A. CIAMBRONE, PLAINTIFFS-APPELLEES,

v.

NORMAN DIGUILIO, AMERICAN INDEMNITY COMPANY, AND IDLEWILD COUNTRY CLUB, AN ILLINOIS CORPORATION, DEFENDANTS, AND NORMAN DIGUILIO, CROSS-PLAINTIFF-APPELLEE,

v.

AMERICAN INDEMNITY COMPANY AND IDLEWILD COUNTRY CLUB, AN ILLINOIS CORPORATION, CROSS-DEFENDANTS. APPEAL OF AMERICAN INDEMNITY COMPANY, DEFENDANT-APPELLANT AND CROSS-DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding. Judgment reversed and remanded with directions.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT.

This is an appeal by American Indemnity Company from a summary judgment entered against it in the circuit court of Cook County in favor of Norman DiGuilio for $72,500, costs and interest, ordering DiGuilio to pay to George L. Shapiro the sum of $500 as guardian ad litem and to Angelo A. Ciambrone the sum of $1,500 as attorney for DiGuilio. The judgment also found that American Indemnity was obligated to defend Raymond Lambotte in the prior underlying personal injury suit brought against him by DiGuilio in which the judgment for $72,500, costs and interest was entered in favor of DiGuilio.

Appeal also is taken by American Indemnity from an order of the trial court striking portions of its answer asserting an affirmative defense of collusion in the personal injury action which relieved it of the obligation to defend, and from the liability of the judgment obtained.

This action arose from a prior underlying action brought in the city court of Chicago Heights against Raymond Lambotte and Idlewild Country Club by Norman DiGuilio, a caddy at the Idlewild Country Club golf course, for loss and removal of his eye, allegedly caused by an apple thrown by Raymond Lambotte, another caddy at the club. Both DiGuilio and Lambotte were minors, aged sixteen years. At the time of the occurrence, Idlewild was insured by a liability policy of American Indemnity Company. American Indemnity provided defense on behalf of Idlewild but refused to defend Lambotte, contending that its policy did not cover club employees in tort actions against the employees.

In the personal injury action, the court appointed Shapiro as guardian ad litem for the minor defendant, Lambotte, and the guardian ad litem retained Ciambrone as attorney.

Idlewild filed an answer and an affirmative defense that plaintiff DiGuilio was a co-employee of defendant, Lambotte, and the action was barred by the Workmen's Compensation Act. The guardian ad litem filed an answer but did not raise a similar defense. He tendered Lambotte's defense to American Indemnity who refused it.

Thereafter, the personal injury cause was transferred to the circuit court of Cook County. Motion for summary judgment was made on behalf of the Country Club. Motion by plaintiff was made for summary judgment on the issue of liability of Lambotte. The motion judge denied summary judgment for the Country Club on the ground that the relationship of plaintiff and defendant presented a disputed question of fact. No counteraffidavit or oral argument was presented in opposition to plaintiff's motion for summary judgment. The court then entered judgment against Lambotte on the issue of liability and reserved only the issue of damages.

On the trial call, Idlewild announced ready for trial but plaintiff's counsel stated that he was not ready to proceed as to Idlewild. The assignment judge, on trial call, then dismissed the case against Idlewild for want of prosecution.

Later, the issue of damages as to Lambotte was assigned for trial. The court heard evidence and entered judgment for DiGuilio against Lambotte for $72,500. This judgment contained a finding that DiGuilio was an independent contractor with the Country Club and not an employee, but that Lambotte was an employee at the time of the occurrence. The judgment also directed that the guardian ad litem be paid $500 and his attorney $1,500 for their services. No appeal was taken from this order and judgment entered January 14, 1965.

Thereafter, Shapiro, guardian ad litem for the minor defendant, Lambotte, and his attorney, Ciambrone, filed this action in chancery to impose a trust or lien upon the proceeds of the insurance policy of American Indemnity and for an order on the company to pay, on behalf of Lambotte, to DiGuilio the judgment of $72,500, and out of it the guardian ad litem fee of $500 and his attorney's fee of $1,500. This suit also sought an injunction restraining DiGuilio from collecting his judgment until plaintiff's rights were declared, and to impose a lien on the insurance policy and declare that American Indemnity Company was obligated to defend Lambotte in the personal injury suit and had breached its duties by failure to do so.

DiGuilio filed a cross-complaint praying that a lien be imposed on the proceeds of the insurance policy for payment of his judgment and that the court declare the American Indemnity Company obligated to defend Lambotte in the principal suit.

American Indemnity and Idlewild filed pleadings, in the instant case, to the complaint and American Indemnity to the cross-complaint, setting up an affirmative defense of collusion between DiGuilio and Lambotte, alleging that Lambotte had failed to present a "bona fide" defense and denying insurance coverage. The court entered an order striking the affirmative defense. Thereafter, on October 20, 1965, the court entered the judgment here appealed from, finding that the insurance policy issued by American Indemnity Company constituted a fund for and is impressed with an equitable lien to satisfy the judgment of $72,500 in favor of DiGuilio against Lambotte; allowed summary judgment in favor of DiGuilio against American Indemnity Company for $72,500 and interest; and ordered DiGuilio to pay the fees of the guardian ad litem, Shapiro, and his attorney, Ciambrone, from such sum. The judgment order also found that American was obligated by its policy to defend Lambotte and that its failure so to do constituted a breach of its policy.

After the judgment of October 20, 1965 was entered and on October 25, 1965, prior to the filing of the notice of appeal, a written order was entered dismissing the action as against Idlewild. Thereafter, the notice of appeal was filed on November 8, 1965. DiGuilio filed a motion to dismiss this appeal on the ground that the order of October 20, 1965, did not contain an express finding that there was no just reason for delaying enforcement or appeal as required by section 50(2) of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 50(2)). This court denied such motion.

Cross-plaintiff, DiGuilio, on appeal, again urges that the judgment appealed from is not appealable since multiple parties were involved and the order appealed from did not dispose of the case as to Idlewild. He also suggests that subsequent to the filing of the notice of appeal, he filed a petition under section 72 of the Civil Practice Act to vacate the dismissal of Idlewild and for leave to file an amended complaint, and that the court vacated the order of dismissal and continued the motion to file an amended complaint. He urges that a decision of the instant appeal may be rendered moot by subsequent developments in the trial court. No lengthy discussion is required on this matter, as the judgment and record is reviewable from the date the notice of appeal is filed. Under section 76 of the Civil Practice Act, "an appeal is perfected when the notice of appeal is filed in the lower court. . . ." (Ill Rev Stats 1965, c 110, § 76 (2).) A reviewing court reviews only questions existing at the time of filing of the notice of appeal. Brehm v. Piotrowski, 409 Ill. 87, 98 N.E.2d 725 (1961); Butler v. Palm, 36 Ill. App.2d 351, 184 N.E.2d 633 (2d Dist 1962). A review of the record discloses that at the time of the filing of the appeal herein, all of the issues of the case as against all of the parties were fully disposed of and relief had ...


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