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Farmers Automobile Ins. Ass'n v. Hamilton

AUGUST 14, 1975.




APPEAL from the Circuit Court of Williamson County; the Hon. STEWART CLUSTER, Judge, presiding.


Mr. JUSTICE CARTER delivered the opinion of the court:

The plaintiff-appellee, The Farmers Automobile Insurance Association, filed suit for declaratory judgment against Gaston Hamilton, defendant, and John Hogan, defendant-appellant, denying liability under a certain homeowner's policy of insurance arising out of a shooting incident. The court granted appellee's motion for summary judgment, finding that appellee was not liable under its homeowner's policy of insurance issued to Hamilton; only Hogan has appealed.

The complaint for declaratory judgment alleges that on February 7, 1970, Gaston Hamilton "assaulted" John Hogan, the appellant by shooting him and that 1 year later, the appellant filed a law suit against Gaston Hamilton seeking damages as a result of the shooting. A homeowner's policy had been issued by the appellee to the defendant, Hamilton, and the policy was in effect at the time of the shooting on February 7, 1970. On February 12 or 13, 1971, Hamilton notified appellee's agent by telephone that he had been served with a summons and requested the agent to notify the insurance company of the law suit. In the telephone conversation with the agent, Hamilton said that the law suit was based on an occurrence at his home over a year ago in which he had shot the appellant.

The policy issued by the appellee contained the following provision:

"In the event of an accident or occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with reference to the time, place, and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to this Company or any of its authorized agents as soon as practicable.

No suit or action shall lie against the company unless: (1) as a condition precedent thereto there has been full compliance with all of the provisions and stipulations of this policy * * *."

The appellee's motion for summary judgment included affidavits from five of its employees, the discovery deposition of the insured, Hamilton, the discovery deposition of Fred Claunch, the insurance agent who sold the policy to Hamilton, and the answer of Hamilton to appellant's complaint. Appellant maintains that the instant case involves a question of fact, and that there was conflicting evidence presented by the depositions and affidavits of the appellee. He further contends that certain circumstances explain the late notice given by Hamilton, and that the general agent (Claunch) of appellee had knowledge of the occurrence. The appellant did not controvert appellee's affidavits or file any counter affidavits.

• 1, 2 It may be stated generally that if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to the jury, and the court would be required to direct a verdict, then a summary judgment should be entered. (Fooden v. Board of Governors, 48 Ill.2d 580; People ex rel. Sharp v. City of Chicago, 13 Ill.2d 157; Shirley v. Ellis Drier Co., 379 Ill. 105.) The principles applicable to a motion for summary judgment under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 57) are well defined, and the application of these principles are discussed in trenchant and convincing language by the court in Ruby v. Wayman, 99 Ill. App.2d 146, 150. The court stated that, "[t]he only function of the court, when presented with a motion for summary judgment, is to determine if a genuine issue exists as to a material fact; if not, summary judgment is proper; if so, summary judgment is improper, as the court may not summarily determine a material fact issue." However, in determining if there is a genuine issue, inferences may be drawn from the facts which are not in dispute, and if fair-minded persons could draw different inferences from these facts, then a triable issue exists. Peirce v. Conant, 47 Ill. App.2d 294.

• 3 Notice to the insurer "as soon as practicable" after an accident means notice within a reasonable time, dependent upon all the facts and circumstances — essentially a question of fact unless the facts and inferences to be drawn from them are not in dispute. Simmon v. Iowa Mutual Casualty Co., 3 Ill.2d 318.

In City of Chicago v. United States Fire Insurance Co., 124 Ill. App.2d 340, 346, the court stated:

"The subject of excuses for delayed notice in insurance liability cases was extensively reviewed at 18 ALR2d 470. We learn there that courts have, on occasion, excused a late notice where the insured was ignorant of the accident or injury; where the insured, acting as a reasonable man, believed that he was not liable; where, due to the trivial nature of the occurrence, the insured believed no claim would be filed; or where the insured, acting as a reasonably prudent person, believed that the accident was not covered by the policy."

We believe that the instant case clearly comes within one of the exceptions stated above, namely, where the insured, acting as a reasonably prudent person, believed that the incident was not covered by the policy.

• 4 There is authority for the proposition that notice is not required until such facts have developed as would suggest to a person of ordinary and reasonable prudence that liability might arise; and the requirement of notice is met by advising the insurer within a reasonable time after the injury presents aspects to a possible claim for damages. (Star Transfer Co. v. Underwriters of Lloyds, 323 Ill. App. 90; H.H. Hall Construction Co. v. Employers Mutual Life Insurance Co., 43 Ill. App.2d ...

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