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Gianinni v. Bluthart

APRIL 19, 1971.

CAROL GIANINNI ET AL., PLAINTIFFS-APPELLEES,

v.

CHARLES BLUTHART ET AL., DEFENDANTS-APPELLEES — (CHARLES BLUTHART ET AL., THIRD PARTY PLAINTIFFS, APPELLEES,

v.

LAKE SHORE MUTUAL INS., THIRD PARTY DEFENDANT, GARNISHEE DEFENDANT, APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. DEMPSEY, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

This appeal involves a difference of opinion between two insurance carriers as an aftermath of what now appears to have been a minor automobile accident. As the record is lengthy, this opinion must necessarily present a summary of the pertinent facts as well as references to the pleadings. There is no material factual dispute. The judgments appealed from were entered by the court without a jury upon a stipulated series of exhibits.

A collision took place on October 18, 1960. One automobile was owned by John Gianinni and driven by his wife, Carol. This vehicle was standing at the time. The other automobile was owned by defendant, Charles Bluthart, and driven by his cousin, the defendant, Robert Zincoris. Zincoris was driving with permission of Bluthart but no agency existed.

Liability insurance for Bluthart was carried by Lake Shore Mutual Insurance Company ("Lake Shore") which appears here as a third party defendant and also as garnishee. It is agreed that, since Zincoris was operating the automobile with the permission of the name insured, coverage under this policy extended to him. In addition, Zincoris was covered by a liability policy issued by State Farm Mutual Automobile Insurance Company ("State Farm") to his mother, Edith Zincoris. At the time, Zincoris was a minor 17 years of age. It is further agreed that under its policy State Farm was the insurer in event of recovery in excess of the limits of the Lake Shore policy.

At this point, the statement of facts may be virtually chronological:

November 4, 1960, a notice of the accident, including an attorney's lien, was sent to Lake Shore by the attorneys for Carol and John Gianinni. This letter claimed that property damage as well as personal injuries had been suffered.

November 8, 1960, Lake Shore wrote to Bluthart advising him of receipt of the lien, stating that they had not heard from him regarding the matter and advising that any claim under the policy would be denied unless Bluthart contacted their office for discussion. On the same date, a representative of Lake Shore called Zincoris on the telephone, found him unavailable and spoke only to his mother. Lake Shore attempted to reach Zincoris on the telephone, without success, on November 16, 1960 and also on November 19, 1960.

November 26, 1960, Bluthart sent Lake a so-called SR-21 report covering the facts of the occurrence. However, on November 29, 1960, Lake Shore wrote Bluthart acknowledging receipt of this form but enclosing another accident report form with the request that it be completed and returned. Apparently this request was not fulfilled because, on December 14, 1960, Lake Shore again wrote Bluthart sending a copy of the requested form, stating that this letter was their third request and that without compliance within ten days, "we shall have no alternative but to send you our reservation of rights and deny all liability in this matter."

January 27, 1961, Lake Shore again wrote to Bluthart and stated that the loss had been investigated and had been given careful consideration but that coverage would be denied. The stated reason was violation by Bluthart of a condition of his policy which required him to give sufficient written notice of the occurrence to the insurer.

February 10, 1961, Zincoris reported the occurrence to State Farm for the first time.

February 13, 1961, a representative of State Farm visited Zincoris and took a statement from him.

February 21, 1961, Bluthart completed and returned to Lake Shore the report form which they had previously sent him.

February 24, 1961, State Farm wrote to Lake Shore enclosing a copy of a letter from an attorney directed to Zincoris concerning the property damage claim of plaintiff, John Gianinni.

May 24, 1961, John and Carol Gianinni filed suit against Bluthart and Zincoris for damage to the vehicle and personal injuries suffered by Mrs. Gianinni. The ad damnum as to each claim was $2,000.00. The record shows that personal service of summons was made on Zincoris on May 26, 1961. The original action subsequently proceeded to trial ...


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