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Employers' L. Assur. Corp. v. Coronet Ins. Co.

FEBRUARY 10, 1969.

EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., A CORPORATION, PLAINTIFF-APPELLEE,

v.

CORONET INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the First Municipal District of the Circuit Court of Cook County; the Hon. MARK E. JONES, Judge, presiding. Affirmed.

ALLOY, P.J.

The present action was instituted on a judgment entered in the State of Louisiana in favor of plaintiff, Employers' Liability Assurance Corporation, Ltd., against defendant, Coronet Insurance Company, a corporation. The action was nominally to register the Louisiana judgment and to recover a new Illinois judgment thereon.

The background of the Louisiana judgment arose from the circumstance that Milton Cryer was insured with Coronet Insurance Company. On December 27, 1964, he was involved in an automobile accident with an automobile driven by David Alford and owned by James Alford, who were both residents of Louisiana. Two passengers were injured in the Alford car. Cryer died as a result of his injuries. James Alford was insured with plaintiff, Employers' Liability Assurance Corporation, Ltd., and this policy provided uninsured motorists' coverage.

The record disclosed that Employers', by mistake, determined that Cryer was not insured, so they paid James Alford $2,625 for the loss to his automobile and paid $1,150 for settlement of the two injury claims to passengers in the Alford automobile. This made a total paid out of $3,775. When Employers' insurance company found out that Cryer actually was insured with Coronet Insurance Company, Employers' brought suit against Coronet Insurance Company and the administrator of the Cryer Estate. The action was instituted in Louisiana by Employers' as subrogee of the car owner and the injured passengers. A Louisiana statute allowed a direct action to be filed as against Coronet Insurance Company. While Coronet first appeared specially in Louisiana, the Louisiana court obtained jurisdiction over Coronet when Coronet eventually defended the action. The Louisiana court entered judgment against Coronet for $3,775 on October 12, 1966, but there was no judgment entered against the Milton Cryer Estate or as against the widow of Milton Cryer individually.

The Coronet Insurance Company policy which insured Cryer, contained the following clauses which are relevant in the instant case:

"1. No person or organization shall have any right under this policy to join the company as a party to any action against the insured to determine the insured's liability, nor shall the company be impleaded by the insured or his legal representative.

"2. No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company."

The Louisiana statute which permitted direct actions against insurance companies, provided in part as follows:

"No policy or contract of liability shall be issued or delivered in this state, unless it contains provisions to the effect that. . . . The injured person or his or her survivors or heirs hereinabove referred to, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Art 42, Code of Civil Procedure. This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not and whether or not such policy contains a provision for bidding such direct action, provided the accident or injury occurred within the State of Louisiana."

Illinois statutory law prohibits actions directly against an insurance company and the pertinent provisions of the Illinois statute are as follows: (1967 Ill Rev Stats, c 73, § 1000-Insurance Code)

"No policy of insurance against liability or indemnity for loss or damage to any person other than the insured, or to the property of any other than the insured, for which any insured is liable, shall be issued or delivered in this State . . . unless it contains in substance a provision that in case execution against the insured is returned unsatisfied in any action brought by the injured person . . . an action may be maintained by the injured person . . . against such company . . . for the amount of the judgment in such action not exceeding the amount of the policy."

The effect of such provision in the State of Illinois is that there can be no direct action unless a judgment is first obtained against the insured.

It is also noted that under the Illinois Civil Practice Act, c 110, § 25(2) (1967 Ill Rev Stats), which deals with the problem of bringing in additional parties to a lawsuit, there is a provision:

"Nothing herein applies to liability insurers or creates any substantive right to contribution among tort-feasors or against any insurer or other ...


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