APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Garnishee, an insurance company, appeals from a judgment, entered against it in a garnishment proceeding, which requires it to pay the full amount of a judgment entered against one of its policyholders. It contends that the affirmative defense of non-cooperation was established.
Before trial, the parties stipulated that a judgment had been entered against Frank Lawlor in a personal injury action arising out of an automobile accident; that at the time of the accident Lawlor was insured by garnishee under a valid policy which, but for its non-cooperation clause, would cover the mishap; and that the non-cooperation clause in applicable part provides:
"The insured shall cooperate with the company and upon the company's request shall attend hearings and trial and shall assist in effecting settlement, securing and giving evidence, obtaining the attendance of witnesses in the conduct of the suit."
The following pertinent evidence was adduced regarding the affirmative defense of non-cooperation.
He is the attorney who was retained by garnishee to represent Lawlor in the personal injury action. Garnishee had sent a letter to Lawlor which stated:
"Regardless of whether you employ your own attorney [because the claim exceeds the policy limits], our attorneys will defend this action for you to the best of their ability
Our attorneys will take care of the details of the law suit and file the necessary papers. Your signature or assistance may be needed from time to time to sign papers or other proceedings. If the case should go to trial our attorneys will meet with you to discuss your case thoroughly."
About 2 weeks before the personal injury action came to trial, he called Lawlor. He told him that trial would be held in the near future and that his cooperation and presence were necessary. Lawlor said he would appear but asked to be given notice of the time and place of trial. Lawlor also told the witness a version of the accident which differed from plaintiff's. In support of this fact, garnishee introduced a letter it had received from Lawlor and a copy of the insurance report he had completed. The witness admitted that he was aware that the police report for the accident contained a version of the facts different from Lawlor's, and he admitted that after this conversation with Lawlor he had filed a motion for a continuance so that he could be present for an estate matter in Florida.
On April 5, 1971, he again called Lawlor. He told him that trial was imminent and that he had a duty under the policy to cooperate. Lawlor said he would appear and asked to be advised of the time and place of trial. However, he did not know the time and location of trial at the time and could not recall whether Lawlor mentioned anything about his job.
On April 6, 1971, the personal injury case was set for trial the following day, and a jury was selected. Although he was unsuccessful in reaching Lawlor in the afternoon, he spoke to both Lawlor's mother and his sister by phone that evening. Neither knew where Lawlor could be reached; but his mother, who was not well versed in English, but seemed to understand, said her son would return that evening. He asked her to tell her son that the trial would be held the following day, that he should be in the witness' office at 9 A.M. the following morning, and that he should call him at home that evening. Lawlor's mother said she would tell her son.
Lawlor did not call him or appear in his office the following day. He again called Lawlor's number and again spoke to Lawlor's mother. She said that she had given him the message, that he had said he had forgotten about the accident and could not be bothered, and that he had gone to work. She did not know where her son works.
He then went to court and informed the judge of what had occurred. He did not recall whether he made a settlement offer or whether he requested a continuance so that Lawlor could be present. However, he did proceed with trial. At the noon recess, he dictated a letter to Lawlor advising him that his failure to cooperate was a violation of his insurance policy, that garnishee had sent a reservation of ...