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Sowinski v. Ramey

OPINION FILED FEBRUARY 27, 1976.

VERNON A. SOWINSKI, PLAINTIFF-APPELLANT,

v.

JOHN K. RAMEY, DEFENDANT-APPELLEE. — (THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, GARNISHEE-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

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

After obtaining a default judgment in the amount of $7,500 against defendant, plaintiff sought garnishment against the defendant insurance company, The Insurance Company of the State of Pennsylvania (hereinafter the garnishee) to satisfy the judgment. Judgment denying garnishment was entered against her. She appeals, contending that the trial court erred when it ruled that the garnishee established the affirmative defense of non-cooperation.

The undisputed facts relevant to this appeal are as follows:

On October 12, 1965, defendant Ramey and plaintiff were involved in an automobile accident as a result of which plaintiff sustained bodily injuries. Thereafter, she sued defendant to recover damages. On July 7, 1967, following attempts to obtain personal service of summons on defendant, she served the Secretary of State pursuant to the provisions of the Illinois Vehicle Law. Ill. Rev. Stat. 1967, ch. 95 1/2, par. 9-301(a). *fn1

Defendant filed a special appearance through his attorneys to quash the substitute service, and the court granted the motion. Subsequently, plaintiff again served the Secretary of State. Defendant failed to appear, and a default order was entered on February 26, 1968. The matter was then set for prove-up. On July 22, 1970, plaintiff having failed to appear, the cause was dismissed for want of prosecution. On August 7, 1970, after notice of motion to vacate the order of dismissal had been served on the attorneys who had last represented defendant on the motion to quash, the order of dismissal was vacated and the cause reset for prove-up on October 8, 1970. Thereafter, judgment was entered for plaintiff in the amount of $7,500. On April 17, 1972, plaintiff brought garnishment proceedings against the garnishee to satisfy the unpaid judgment. Garnishee moved to dismiss on the ground that the defendant, its insured, never forwarded to it the summons which allegedly was served on him. The motion was denied and the garnishee filed an answer, pleading the affirmative defense of non-cooperation and, in the alternative, challenging the validity of the substitute service used by the plaintiff in acquiring jurisdiction over defendant. At the garnishment hearing, it was stipulated by the parties that garnishee had notice of the filing of plaintiff's lawsuit as of July 21, 1967. The following additional evidence was then adduced.

Vernon A. Sowinski — plaintiff

She was involved in an automobile accident on October 12, 1965. She retained Edward J. Bieg, an attorney, to represent her. He filed a lawsuit against defendant on her behalf. On October 8, 1970, she obtained a default judgment in the amount of $7,500.

Dorothy Meyers

She was a legal secretary for Bieg's law firm and familiar with plaintiff's file. Bieg was plaintiff's attorney until his death in July, 1970. William J. Moore, a partner in the firm, collaborated on the case with him. She sent a letter on December 13, 1965, from Moore to defendant advising him that Moore was being retained as plaintiff's attorney and that defendant should report the accident to his insurance company. She identified: (1) a memorandum dated December 21, 1965, from Jessie Walker of Jacksonville, North Carolina, garnishee's agent, to Moore acknowledging receipt of Moore's December 13, 1965, letter and informing him that it would be forwarded to the garnishee; (2) a letter dated July 28, 1967, from Bieg to the garnishee advising that a summons and complaint had been served on the Secretary of State's office because defendant could not be located; (3) a letter dated October 2, 1967, from Bieg to the Secretary of State advising that office that he had been unable to locate defendant and requesting that that office accept service on defendant's behalf; (4) other correspondence from Bieg to the garnishee and to James Harvey, a claim investigator retained by the garnishee enclosing copies of the summons and complaint sent on October 2, 1967, and a letter from the Secretary of State to Bieg acknowledging receipt of Bieg's request for substitute service.

James E. Harvey, for the garnishee

He is employed by Crawford & Company as an insurance investigator. In February, 1966, he was assigned to investigate plaintiff's claim against defendant. He sent letters to defendant on February 3, February 15 and May 26, 1966, advising defendant that he would be investigating plaintiff's claim on behalf of the garnishee, requesting defendant to contact him, reminding defendant of his policy obligation to cooperate with his insurance company, and threatening defendant with a reservation-of-rights letter if he failed to cooperate. All three letters were addressed to defendant's last known address in Palatine, Illinois. None was ever returned as undelivered. Only one of the letters, probably the last, was sent by certified mail and defendant apparently signed the certified receipt, but Harvey did not have the receipt or copy of it. Since the letters brought no response, he made additional attempts to locate defendant, but was not successful.

OPINION

• 1 Plaintiff contends that the garnishee failed to establish the affirmative defense of non-cooperation at the garnishment hearing. The policy under which defendant was insured by the garnishee is typical of insurance policies and provides in pertinent part:

"In the event of an accident, * * * written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect 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 ...


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