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Barrington Cons. High Sch. v. American Ins. Co.

MAY 2, 1973.

BARRINGTON CONSOLIDATED HIGH SCHOOL, SCHOOL DISTRICT 224 OF BARRINGTON ET AL., PLAINTIFFS-APPELLEES,

v.

THE AMERICAN INSURANCE COMPANY ET AL., DEFENDANTS-APPELLANTS — (SUSAN SCHAFER AND LEO SCHAFER, INDIVIDUALLY AND AS FATHER AND NEXT FRIEND, DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Barrington Consolidated High School, School District 224 of Barrington, Illinois, and Kathleen Van Ness Lawyer, brought a declaratory judgment suit against The American Insurance Company, Newark, N.J., and Fireman's Fund American Insurance Companies, Successor in Interest, to determine whether the company was obligated to defend and indemnify the school in a pending suit by a student and her father for personal injuries and medical expenses.

The trial court found that the high school and Mrs. Lawyer had no reason to believe that they would be charged with negligence; that the incident in question was not such an occurrence as would be contemplated under the provisions of the Notice Provision of the policy, and finally, that the insurance was in full force and effect and that Fireman's Fund American Insurance Companies were obligated to defend the high school and Mrs. Lawyer, and had breached the terms of their policy in failing so to do. The trial court further ordered Fireman's Fund American Insurance Companies to indemnify the high school and Mrs. Lawyer under the terms and provisions of the policy, and to pay costs and expenses. The Fireman's Fund American Insurance Companies appeals.

The sole question before this court is the interpretation of the liability policy which contains a provision that the school shall give written notice to the insurance company "as soon as practicable."

On Friday, January 29, 1965, Susan Schafer was a student at Barrington High School. She was injured in a gymnastic class in the use of a support horse. The next Monday she went to class and told Miss Van Ness (now Mrs. Lawyer) that her leg hurt. That night she went to the family doctor who put her on crutches and gave her a written excuse from gym which she delivered to Miss Van Ness on Tuesday. She also reported to the school nurse that she had been injured. She was on crutches for about two weeks. In February, 1965, she was hospitalized for three weeks. She returned to school and after school closed in the spring she was readmitted to the hospital for intensive care. On August 15, 1965, the parents of Susan Schafer inquired of the school authorities as to home tutoring for Susan. On September 16, 1965, the parents of Susan sent the following letter to the Lake County Superintendent of Schools, with a copy to Mr. Gillis, the school Principal, Dr. Finley, the school Superintendent, Mr. Schwem, the President of the School Board and Ray Page, the State Superintendent of Public Instruction. A pertinent portion of the letter is as follows:

"Our daughter, Susan, 16 years old, would be a junior attending Barrington Community Cons. High School Dist. 224 this year if it were not for an unfortunate accident which happened to her January 24, 1965. *fn1 So that you may better understand our reasons for writing to your office we will briefly explain the circumstances leading up to this letter.

Susan was injured while participating in a supervised gym class. Trying to leap over the gymastic `horse' she fell and ruptured a blood vessel in her leg. She entered Sherman Hospital, Elgin, for a three week stay in February. She was released and was able to finish the school year. A few days after school closing she had a relapse which several doctors attribute directly to the gym accident. Since that time she has been and still is in the Sherman Hospital under intense care. Both arms and both legs are partially paralyzed. She has endured a major operation to control blood clots which resulted from the broken blood vessel, also suffered pneumonia and complications which almost resulted in death.

As you might imagine the injury has been very expensive. To date the insurance carrier for Dist. 224 has given us no satisfaction nor have they indicated any responsibility or liability. In fact, their attitude has been in our opinion outright obnoxious. It appears at present that we will have to pursue this in court. We have already started preliminary proceedings. However, as serious and exasperating as all this has been, it is not our main reason for writing to you.

Our main questions: How much trouble is it for school administrators to supply tutoring for a physically handicapped child? How long should we wait after request has been made for our child to be given help to which she is legally and morally entitled? We made first inquiry of Mr. Gillis, principal of Dist. 224 about August 15. Incidentally, it is much more difficult to get in touch with Mr. Gillis than it is with you.

Waiting several days and hearing nothing from Mr. Gillis, we called him again to no avail. We then saw Susan's counselor, who gave us a list of tutors names. Then we were sent to Mr. Lundahl, Business Administrator of Dist. 224, who said he would call us when he had information. He hasn't. At present we are still waiting for assistance in picking tutors. We don't know which ones are available. We don't know anything about them. Should the school administrators give us help in choosing these teachers? The school year is approaching its second week and Susan has not yet started work and is becoming apprehensive over the delay.

We would also like to ask where is the moral obligation of this school system. During the whole 12 weeks plus that Susan has been in the hospital not one administrator or teacher has offered help or even inquired about her condition. Susan has been a good student in school and has never been a problem child. We cannot help but wonder what our school system has come to when concern for the individual is so lacking, and the emphasis on buildings and image is so obvious here.

If your office can answer some of these questions for us or give us any help we will greatly appreciate it. We do not want or expect anything beyond what any other handicapped student is entitled to, but we would like the school administrators to acknowledge that we do exist."

Mr. Gillis, the school Principal, upon receipt of the letter discussed it with the school Superintendent, Dr. Finley, who in turn delivered a copy of the letter to Mr. Lundahl, the school's business manager, whose responsibility it was to maintain liability insurance coverage for the school. No investigation was made of the alleged injury.

Susan Schafer had accident insurance with the Guarantee Trust Life Insurance Company in contradistinction to the liability insurance the school had with The American Insurance Company, Newark, N.J., and Fireman's Fund American Insurance Companies, Successor in Interest, their liability carrier. Some confusion apparently arose as to an interpretation of the last paragraph of the above letter as to what insurance company was referred to in the letter. During the month of January the school nurse did in fact make out an accident insurance form for Susan Schafer. Home tutors were arranged for Susan for the school year of 1965, and in 1966 special transportation was arranged to bring her to the school. On February 26, 1969, Susan Schafer filed suit against Barrington High School and Mrs. Lawyer, her gym teacher, for the injury she received on January 29, 1965. This suit is still pending in the circuit court. On March 5, 1969, the summons and complaint in that suit were sent to Fireman's Fund American Insurance Companies. This was the first ...


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