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Brady v. Highway Comm'r

JANUARY 20, 1975.

MARY MARGARET BRADY, PLAINTIFF-COUNTERDEFENDANT-APPELLANT,

v.

HIGHWAY COMMISSIONER OF PENN TOWNSHIP, STARK COUNTY, DEFENDANT-THIRD-PARTY PLAINTIFF-COUNTERPLAINTIFF-APPELLEE. — (DONALD K. BRADY, THIRD-PARTY DEFENDANT-COUNTERDEFENDANT-APPELLEE,

v.

GREAT AMERICAN INSURANCE COMPANY, COUNTERDEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Stark County; the Hon. JOHN E. RICHARDS, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 14, 1975.

This is an appeal from the Circuit Court of Stark County. The original action in this cause was commenced when Mary Margaret Brady as plaintiff brought a suit in negligence for personal injuries against the highway commissioner of Penn Township, Stark County, Illinois (hereinafter referred to as the "Commissioner"). The third-party action for indemnification subsequently filed against a Donald K. Brady by the Commissioner does not present any questions on this appeal.

To obviate the fact that she had failed to comply with the limitation and notice provisions of sections 8-101 and 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, pars. 8-101 and 8-102) the plaintiff alleged that the Commissioner was covered with respect to the injury complained of to the extent of her damages, by a comprehensive general liability insurance policy issued by the Great American Insurance Company (hereinafter referred to as the "Great American"). This allegation of the plaintiff was predicated on the Housewright and Fanio cases, which hold that where a local public entity has contracted for insurance against loss or liability sought to be imposed against it, the notice and limitation provisions of the Tort Immunity Act are deemed waived. See Housewright v. City of LaHarpe, 51 Ill.2d 357, 282 N.E.2d 437; Fanio v. John W. Breslin Co., 51 Ill.2d 366, 282 N.E.2d 443.

The Commissioner filed a complaint for declaratory judgment against the plaintiff and also against Donald K. Brady and Great American in order to determine whether the policy of insurance did in fact afford coverage. Thereafter, the plaintiff filed a motion for summary judgment on the complaint for declaratory judgment, wherein she asked the trial court to find that the policy in question did in fact afford the coverage as she had alleged. Great American, after answering the complaint for declaratory judgment, then in turn filed a motion for summary judgment in which it was requested that the trial court declare that the policy did not afford the requisite coverage.

After hearing the trial court entered an order entitled "Declaratory Judgment," in which it was declared that the policy of insurance in question did not afford coverage with respect to the injury complained of, and the order further dismissed the plaintiff's personal injury action with prejudice on the ground that in absence of such coverage the action was barred by failure to comply with sections 8-101 and 8-102 of the Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, pars. 8-101 and 8-102). It is from this order of the trial court that the plaintiff appeals.

The pertinent facts which resulted in the filing of the pleadings which we have documented are as follows: The plaintiff on August 19, 1970, while a passenger in an automobile driven by Donald K. Brady (whom she subsequently married), was injured in an automobile accident on a township road located in Penn Township, Stark County. The plaintiff alleged various acts of negligence on the part of the Commissioner, inter alia, failure to maintain and repair the road, failure to post any guide, direction or warning signs and violations of both a statutory and common-law duty to provide traffic warning signs as to a dangerous condition.

The Commissioner admitted that the roads in question were under his supervision and control and in his complaint for declaratory judgment alleged the issuance of a policy of insurance by Great American and attached the same to his complaint as an exhibit. He further alleged that when the insurance was originally contracted for in 1959 and on subsequent renewal dates he requested "full coverage insurance."

Without entering into an undue recital of facts, it suffices to say that there was in existence a valid general comprehensive liability policy of insurance issued to the Commissioner by Great American. We must further note that Great American, in defending against the claim of the plaintiff, did so under a "reservation of rights" on the basis that no premium charges had ever been made for insurance coverage in regard to streets, roads or highway hazards. On October 19, 1972 (a date clearly subsequent to the accident and the filing of a complaint by the plaintiff), Great American mailed to the Commissioner the following exclusionary endorsement:

"This endorsement modifies such insurance as is afforded by the provisions of the policy relating to the following:

COMPREHENSIVE GENERAL LIABILITY INSURANCE MANUFACTURERS' AND CONTRACTORS' LIABILITY

INSURANCE

G301 EXCLUSION

(All Hazards in Connection with Designated Premises) ...


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