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Harvey v. Johnson

JULY 11, 1975.

EDWARD LEE HARVEY, JR., A MINOR, BY HIS MOTHER AND NEXT FRIEND, PATSY A. HARVEY, PLAINTIFF-APPELLEE,

v.

WILLIE JOHNSON, DEFENDANT. — (MERIT INSURANCE COMPANY, A/K/A MERIT MUTUAL INSURANCE COMPANY, GARNISHEE-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding. MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Garnishee, an insurance company, appeals from a judgment which required it to pay the full amount of a judgment entered against one of its policy holders, Willie Johnson. Basically, garnishee contends that the affirmative defense of non-cooperation was established.

A judgment in the amount of $7620 was entered against Johnson in a personal injury action arising out of an automobile accident which occurred on May 18, 1967. At the time of the accident Johnson was insured by garnishee under a policy which included the following provisions, commonly referred to as a "cooperation clause":

"5. Assistance and Cooperation of the Insured — Parts I and II. The insured shall cooperate with the company and, upon the company's request, attend hearings and trials and assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance * * *.

6. Action Against Company — Part I. No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy. * * *"

Although garnishee filed affirmative defenses, plaintiff was ordered to proceed with the presentation of his case.

Johnson testified on behalf of plaintiff that he never received a summons and complaint in the action brought by plaintiff arising out of the auto accident. He remembers filling out some papers "right after" the accident and sending them to garnishee. Prior to November 9, 1971, he had not been personally contacted regarding the personal injury action, nor had he received any messages that anyone had attempted to contact him regarding this matter. At approximately noon on November 9 he received a message from his daughter-in-law to call a certain number. When he called, a man whom he could not identify told him the case was "coming up" at 1 o'clock that afternoon and he had to come to court. Johnson told the man that he could not appear because he was going to traffic court on an unrelated matter. The man told Johnson to call him when he was through in traffic court. Johnson left traffic court some time after 6:30 p.m. The man called him at home and asked why he had not appeared. Johnson reiterated that he had gone to traffic court. The man did not tell him he was needed in court the next day, nor did he explain what the consequences of his nonappearance would be. Later a man came to his home and took a statement from him. He was not requested to take time off from work to come to court. He had received no written communications warning him that if he did not appear for trial he would be denied coverage under the policy.

Plaintiff then called James Mavrias as an adverse witness pursuant to section 60 of the Civil Practice Act. He testified that he was an attorney in the office of Stern, Rotheiser and Ginsberg who were retained by garnishee to defend Johnson. The case had been placed "below the black line" (i.e., notification that it would be tried when called) on September 24, 1971. It appeared "above the black line" on November 9, 1971, and was assigned to a trial judge that day. The trial began on November 9 and continued on November 10. A jury verdct was returned on November 10.

On September 14, 1971, a letter was sent to Johnson which read, in its entirety, as follows:

"Willie Johnson 605 East 87th Place Chicago, Illinois Re: Harvey vs. Johnson Court No. 67L8054 Our File No. 15060

Dear Mr. Johnson:

As you know, we are the attorneys retained by your insurance carrier to defend you in the above action.

This case will be coming to trial very soon and it is extremely important that we talk to you about this case.

Please call our office upon receipt of this letter so that we may discuss ...


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