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Kenworthy v. Bituminous Casualty Corp.

MAY 22, 1975.

GLENN KENWORTHY, PLAINTIFF-APPELLEE,

v.

BITUMINOUS CASUALTY CORPORATION, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Champaign County; the Hon. FREDERICK S. GREEN, Judge, presiding.

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

Defendant Bituminous Casualty appeals from the verdict of a jury which awarded plaintiff the costs and attorney fees he incurred because of the breach of the insurer's duty to defend.

Defendant raises two issues for our review: (1) whether the trial court should have directed a verdict in its favor; and (2) were the instructions proper.

On February 6, 1967, a Peoria & Eastern railroad train collided with a car at a railroad crossing in LeRoy, Illinois. One of plaintiff's trucks was parked nearby, unoccupied, along the railroad right-of-way. The occupants of the car brought suit against the railroad. They alleged, among other things, that the railroad had negligently permitted vision to be obstructed at the crossing by allowing vehicles to be parked along the right-of-way.

On April 10, 1968, the railroad informed Kenworthy, by letter, that they considered him actively negligent and primarily liable for the accident. They stated that they might pursue their rights against him, tendered defense of the suit and recommended that he get in touch with his insurance company. Plaintiff Kenworthy died before trial commenced. His wife testified that she saw him write a letter to his insurance agent shortly after April 10, 1968, and stamp it, although she did not see him mail it. Bituminous was the insurer at the time of the accident. Bituminous testified that it did not receive that letter.

Kenworthy received a second letter from the railroad on February 6, 1969. The railroad said that they were preparing to settle with the occupants of the car for $25,000 and would look to Kenworthy for indemnification. This letter Kenworthy sent to his attorney, who forwarded it to Bituminous with a cover letter. Bituminous received it on February 13, 1969. The railroad, in its letter to Kenworthy, said that any contact, if plaintiff had objections to the settlement, must take place before 9 A.M., February 13, 1969. The day the insurer received the letter, Bituminous denied liability on the grounds that it had no duty to defend because the notice provisions of the contract had not been complied with.

Kenworthy hired his own counsel and successfully defended the suit by the railroad. He then brought action against Bituminous to recover his costs and attorney fees. This is the suit on appeal before us. The jury found that Bituminous had breached its contract and that plaintiff's damages were $13,068.45.

Bituminous first contends that a trial court should have directed a verdict in its favor because notice was unreasonably delayed as a matter of law. The sole issue at trial was whether notice of the accident had been given according to the terms of the policy.

"A provision in an insurance liability policy requiring an insured to give the insurer notice of an accident is a reasonable policy requirement, one which affords the insurer an opportunity to make a timely and thorough investigation and to gather and preserve possible evidence." Barrington Consolidated High School v. American Insurance Co., 58 Ill.2d 278, 281, 319 N.E.2d 25, 27.

The notice requirement in this policy reads:

"If a claim is made or suit is brought against the insurer, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative."

Another provision made this a condition precedent to the company's liability.

• 1 "Immediate" in this context has been uniformly interpreted to mean within a reasonable time, taking into consideration all the facts and circumstances shown by the evidence. Niagara Fire Insurance Co. v. Scammon, 100 Ill. 644; also see 18 A.L.R.2d 443, 463.

• 2 Generally, the question of what is a reasonable time is a question of fact to be decided by the jury. Barrington Consolidated High School v. American Insurance Co.; Higgins v. ...


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