APPEAL from the Circuit Court of Jackson County; the Hon.
PEYTON KUNCE, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Plaintiff Edmund G. Bridewell brought this action against his employer, the school district, for the use and benefit of Horace Mann Insurance Company to recover attorneys' fees and costs which were expended on behalf of the plaintiff by the said insurance company pursuant to a liability policy extending indemnity liability insurance coverage for legal liability imposed upon him in his capacity as a school teacher.
This cause is the second case to be brought to an appellate court by the respective insurance companies involved. The original litigation concerned the wrongful death action of a student of the present plaintiff while the present plaintiff was employed by the present defendant, The Board of Education of Shawnee Community Unit School District No. 84 of Union, Jackson and Alexander Counties, Illinois (School District).
In the original action one Treece filed suit naming the School District as Defendant in a wrongful death action. The present plaintiff (Bridewell) was added as a defendant and the School Board then attempted to file a third party complaint against Bridewell. Bridewell, with counsel retained by the Horace Mann Insurance Company (Mann), successfully defeated the motion for leave to add a third party defendant at the trial court. The decision was affirmed by the Illinois Supreme Court in Treece v. Shawnee Community Unit School District, et al., 39 Ill.2d 136, 233 N.E.2d 549.
At all times herein pertinent, Bridewell was employed by the School District and was covered by an insurance policy issued by Mann which contained among other provisions the following:
To pay on behalf of each and every insured member of the association (hereinafter called the insured) all sums which he shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, and as damages because of injury to or destruction of property, including the loss of use thereof, arising out of an occurrence in the course of his duties as an instruction, member of a faculty or teaching staff.
II. DEFENSE, SETTLEMENT, SUPPLEMENTARY PAYMENTS
As respect such insurance as is afforded by the other terms of this policy the company shall:
(a) Defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient;
6. Other insurance. If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy or a greater portion of such loss than the applicable limit of liability stated in the declaration bears to the total applicable limit of such liability of all valid and collectible insurance against such loss.
7. Subrogation. In the event of any payment under this policy, the company shall be subrogated to all the insured's right of recovery therefore any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.
Bridewell was also a covered employee under a policy issued by the St. Paul Insurance Company (St. ...