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Browning v. Heritage Insurance Co.

DECEMBER 12, 1975.

ILA M. BROWNING, PLAINTIFF-APPELLANT,

v.

HERITAGE INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN S. GHENT, JR., Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

The issue upon this appeal is whether plaintiff's complaint has stated a cause of action.

The facts giving rise to the original suit are detailed in the opinion of this court in the case of Browning v. Johnson, 132 Ill. App.2d 85 (abstract opinion). Briefly, plaintiff had been severely injured in an accident which occurred when defendant's insured came over the crest of a hill and started to pass a car going in the same direction. In pulling around this car, defendant's insured, Gordon T. Johnson, struck the car in which plaintiff was a passenger, which car was being driven in the opposite direction. There was evidence of evasive action by the drivers, and the impact occurred on the shoulder on plaintiff's side of the road. Plaintiff was 25 years old. It was undisputed that as a result of the accident she incurred a fracture of the humerus of the left arm, facial and body lacerations, a fracture of the jaw bone and temporary palsy on the left side of her face. Open reduction surgery had been performed. She had scars and permanent injuries. There was evidence of $1800 in medical and dental expenses. She was unable to work and had, at time of trial, lost 77 weeks' wages at $80 per week.

Plaintiff brought suit against defendant's insured demanding $50,000. The judgment on the verdict of $30,000 was affirmed by this court. $10,000, the insured's policy limit was eventually paid to plaintiff by the defendant herein. On appeal we stated, "In this case liability was clear."

After securing an assignment of Johnson's cause of action against his insurer (the defendant herein) plaintiff commenced this action.

In substance, the allegations of the complaint are that the defendant Heritage Insurance Company was guilty of negligence in the handling of the original lawsuit; that Heritage had been put on notice of the danger by a letter from Johnson's attorney; the letter advised defendant that its insured was liable and that the damages were well in excess of $10,000; that immediately prior to trial Heritage had offered to pay $9500; plaintiff countered with an offer to accept $9750 but Heritage refused and immediately proceeded with the trial which resulted in the $30,000 verdict on which $10,000 was paid; the assignment was attached as an exhibit; that the failure of Heritage to accept plaintiff's settlement offer of $9750 was negligent and wilful act on the part of Heritage thus exposing Johnson to damages in excess of the policy limits to the damage of plaintiff.

Count II realleges all the facts stated in Count I but charges that Heritage was guilty of fraud in the handling of the lawsuit.

Heritage moved to dismiss Count I setting out nine reasons:

1. It has allegations which are not material to the case.

2. Said allegations have to do with another case.

3. They are conclusions of law.

4. There are no allegations of fact sufficient to sustain a complaint.

5. There are no allegations of loss suffered by plaintiff.

6. The allegations are simply a view of what occurred in ...


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