APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
The trial court granted the petition of Norman Di Guilio made pursuant to Section 72 of the Civil Practice Act to vacate an order, dated October 26, 1965, which order dismissed a suit against Idlewild Country Club, a co-defendant, for want of prosecution. Idlewild appeals from the order dated June 22, 1966, vacating such dismissal.
Another aspect of this litigation appears in George L. Shapiro, et al. v. Norman Di Guilio, American Indemnity Company and Idlewild Country Club (1st Dist. 1968), 95 Ill. App.2d 184; 237 N.E.2d 771.
A consideration of the history of this litigation is necessary. Norman Di Guilio, a 16 year old minor, a caddy at Idlewild Country Club on July 16, 1958, was struck in the eye by an apple allegedly thrown by another caddy also a minor, and suffered the loss of the eye. Di Guilio filed suit against the other caddy, Raymond Lambotte, and Idlewild Country Club. Idlewild answered the complaint denying the material allegations and alleging affirmatively that both plaintiff and defendant caddies were employees, were subject to and bound by the Workmen's Compensation Act and that Idlewild provided insurance to cover its workmen's compensation liability.
George Shapiro was appointed guardian ad litem for defendant, Lambotte, and in turn employed Angelo Ciambrone as his attorney to defend Lambotte. Attorney Ciambrone advised the attorneys for Idlewild and its insurer, American Indemnity Company, that he understood they were asserting the defense of employment relationship between Idlewild and the plaintiff, Di Guilio, that he assumed that Lambotte was therefore likewise an employee for whose actions Idlewild would be responsible and tendered the defense of Lambotte to Idlewild. The tender of defense was refused.
Di Guilio moved for summary judgment against Lambotte but no counter-affidavit was filed on the latter's behalf. Idlewild moved for summary judgment as to it. On January 7, 1965, the trial court entered a summary judgment against Lambotte on liability, leaving only the question of damages. The trial court found that Idlewild's motion for summary judgment presented a question of fact as to the relationship between plaintiff Di Guilio and defendant Idlewild, and denied the motion. On January 11, 1965, the matter came on the regular trial call and plaintiff's counsel announced that he was not ready to proceed to trial as to Idlewild. The tort action was dismissed for want of prosecution as to Idlewild only.
On January 14, 1965, the trial court entered a judgment in favor of Di Guilio against Lambotte for $72,500, and added findings that Di Guilio was an independent contractor and not an employee of Idlewild on July 16, 1958, whereas Lambotte was an employee of Idlewild on said date. On the same date the trial court ordered the plaintiff to pay $500 to the guardian ad litem for the defendant, and $1,500 to his attorney.
Three different judges entered respectively Di Guilio's motion for summary judgment, an order assessing damages and the order dismissing the case for want of prosecution against Idlewild.
On March 1, 1965, George Shapiro, the guardian ad litem for defendant Lambotte, and Angelo Ciambrone, his attorney, brought a complaint in chancery against Di Guilio, plaintiff in the tort action, Idlewild Country Club and its insurer, American Indemnity Company, alleging that the insurance company owed a defense to defendant Lambotte, and covered him as to liability under the policy. The complaint specifically prayed, (a) that a trust or lien be imposed on the proceeds of an insurance policy of American Indemnity Company for the use of Idlewild Country Club, (b) that American Indemnity Company be ordered to pay the sum of $72,500 on behalf of Lambotte to Norman Di Guilio and out of said proceeds the sum of $500 be paid to the guardian ad litem and $1,500 to his attorney, (c) that the court restrain Di Guilio from proceeding against Lambotte until his rights were adjudicated and a lien imposed upon the insurance policy, and (d) that the court decree that American Indemnity Company had breached its duty in failing to defend Lambotte. There was also a prayer for general relief.
American Indemnity Company answered denying coverage for, or on behalf, of any employees of Idlewild, alleging that no bona fide defense was made for Lambotte, alleging on information and belief that the judgment aginst Lambotte was entered on the agreement of the attorney for the plaintiff, Di Guilio, and the attorney for the defendant, Lambotte.
Idlewild answered the complaint alleging that Di Guilio filed a complaint before the Industrial Commission of the State of Illinois which is pending and undetermined, alleging that plaintiff, Di Guilio, was an employee of Idlewild while a caddy and that Lambotte was likewise an employee, denying coverage by its policy with American Indemnity Company, alleging coverage of the situation by the Workmen's Compensation Act and Idlewild's insurance procured in respect thereto, and alleging that no defense was made for Lambotte in the suit by Di Guilio.
Di Guilio answered the complaint and also filed a cross-complaint in which he prayed specifically, (a) that a lien be impressed upon the proceeds of the American Indemnity Company insurance policy, (b) that the court declare that American Indemnity breached its duty in its failure to defend Lambotte. Idlewild answered the cross-complaint denying that its American Indemnity Company policy provided coverage, and alleging that it had Workmen's Compensation insurance coverage, and alleging that Di Guilio was an employee of Idlewild at the time of his injury.
The trial court struck the defense of collusion in entry of the tort judgment and entered a summary judgment on October 20, 1965, in favor of Di Guilio against American Indemnity Company for $72,500, and ordered that Di Guilio pay $500 to the guardian ad litem and $1,500 to his attorney therefrom. The court also ...