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Rogers v. Robson Et Al.





APPEAL from the Circuit Court of Will County; the Hon. THOMAS EWERT, Judge, presiding.


Rehearing denied September 6, 1979.

Plaintiff, James Rogers, M.D., appeals from an order granting summary judgment in favor of defendant, Robson, Masters, Ryan, Brumund & Belom, a partnership of attorneys. A medical malpractice action had been filed against the plaintiff. The defendant was retained by plaintiff's malpractice insurance carrier to defend the action. The defendant did enter the case on behalf of the plaintiff and eventually settled the action prior to trial. The settlement occurred without the consent or knowledge of the plaintiff Rogers. Rogers filed the instant action against the attorneys, asserting that they wrongfully settled the action without his express permission or knowledge. After submission of affidavits, the trial court granted summary judgment for the defendant.

On this appeal a number of issues are raised for our consideration. First, does a question of fact exist as to defendant's authority to settle the malpractice action without Rogers' consent; second, does public policy prohibit settlement without Rogers' consent; third, did the trial court err in awarding summary judgment prior to discovery; fourth, by settling without the express consent of the plaintiff, did the defendant breach a duty to plaintiff that existed independent of the contract of insurance and finally, was Rogers damaged as a result of the defendant's actions.

On February 4, 1972, a complaint was filed against Dr. Rogers, alleging negligence in the care and treatment of one of his patients (named Quilico). Dr. Rogers' insurance carrier, Employer's Fire Insurance Company, a member of Commercial Union Assurance Companies, retained the defendant law firm to represent Dr. Rogers in the malpractice action instituted by Quilico. During the pendency of the Quilico action, Dr. Rogers informed the Robson law firm that he would not consent to a settlement of that action and did not wish it to be settled.

On September 17, 1974, and prior to trial, the defendant settled the Quilico action for the sum of $1,250. Settlement was made on the basis of a convenient not to sue and liability as to Dr. Rogers was expressly denied. Rogers' consent for the settlement was not obtained nor was he informed prior to settlement of the intention of the defendant law firm to settle the action.

Rogers initially filed an action against the defendant on November 17, 1976, alleging a wrongful settlement of the Quilico action without his consent. The trial court dismissed that action on its own motion on November 29, 1976, because of a deficiency in the ad damnum request for damages in the complaint. (See Ill. Rev. Stat. 1977, ch. 110, par. 34.) This court upheld the dismissal, but declared the dismissal would be one without prejudice.

The present action was filed on October 13, 1977, alleging essentially the same facts and cause of action as in the previous suit. The defendant moved for summary judgment and both of the parties submitted affidavits on the summary judgment issue. The affidavits specified that Dr. Rogers was insured by the insurer from June 1, 1970, to June 1, 1971, under Policy FW-2864-94, which is the policy covering the alleged malpractice action involving Quilico. It was also specifically established that Dr. Rogers was not insured under that policy, or otherwise, by the insurer, for any period after June 1, 1971.

The policy involved, in pertinent part, contains the following provision with respect to settlement of claims or suits:

"The company will pay on behalf of the insured all sums which the insured shall become obligated to pay as damages * * * and the company shall have the right and duty to defend any suit against the insured seeking such damages, even if any of the allegations of the suit are groundless, false, or fraudulent, and may make such investigation and with the written consent of the insured such settlement of any claim or suit as it deems expedient, but the company shall not be obligated to defend any suit after the applicable limits of the company's liability has been exhausted * * * nor shall the written consent of a former insured be required before the company may make any settlement of any claim or suit even if such claim or suit was made, proffered or alleged while such former insured was an insured under this policy."

• 1 It is first contended by plaintiff that a question of fact exists as to whether the insurance policy granted the defendant the authority to settle the Quilico action. Insurance policies are contracts, and the general rules of construction which apply to other contracts also apply to insurance policies. As stated in Dawe's Laboratories, N.V. v. Commercial Insurance Co. (1974), 19 Ill. App.3d 1039, 1048, 313 N.E.2d 218:

"In considering the language of the policy of insurance * * * our primary objective must be to ascertain and to give effect to the intention of the parties as therein expressed. Where there is no ambiguity in the policy provision, the intent of the parties `must be determined solely from the language used.' (Schek v. Chicago Transit Authority, 42 Ill.2d 362, 364, 247 N.E.2d 886.) In this regard, insurance policies must be treated like any other contract and `[w]here the language in a policy is clear and unambiguous, it must be taken in its plain, ordinary and popular sense.' (Hartford Accident & Indemnity Co. v. Case Foundation Co., 10 Ill. App.3d 115, 121, 294 N.E.2d 7.) `The issue of whether an ambiguity exists in a contract is a question of law.' Gaffney v. Burns Detective Agency, 12 Ill. App.3d 476, 480, 299 N.E.2d 540 and cases there cited."

We note that in Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App.3d 115, 121, 294 N.E.2d 7, the court also notes that "[c]onstruction of an insurance policy presents only a question of law." Contrary to plaintiff's assertion in the instant case, no question of fact exists as to the insurance contract's interpretation. The construction and interpretation of the contract in this respect is a question of law for the court and not for the trier of fact.

The trial court, in the instant case, clearly found, as a matter of law, that the contract provided for, and authorized, the settlement of the Quilico action without the written consent of the plaintiff. That decision, and the construction of the contract underlying it, are fully supported by the plain meaning of the language used in the contract with respect to settlement. The policy specifically provides that no written consent is required of a former insured prior to settlement, even if the claim or suit arose during the period of coverage under the policy. "Former insured," as used in the contract provision, clearly indicates a person previously, or formerly, insured by the company, but one who is, at a subsequent time, no longer currently insured by the company. It provides that the insurer, when an insured is no longer currently insured by the company, may make settlement and disposition of the case, without the consent of the insured. The argument made by plaintiff, in seeking an interpretation contrary to the plain meaning contained in the language of the policy, is not sound and does not suggest any reasonable alternative interpretation.

• 2, 3 The clear intent of the language used is that an insurer is not required to secure consent, prior to the settlement of an action, from one who is no longer a current insured of the company, i.e., who is someone referred to as a "former insured." Rogers was an insured of the insurer for the period of June 1, 1970, to June 1, 1971. Thereafter, his policy was not renewed, nor does it appear that any other contract with the insurer was entered into by Rogers. Thus, when the Quilico action was settled in September of 1974, Rogers was a "former insured" of the insurer, under the terms of the policy. By the terms of the policy, his consent to such settlement was not required.

The second issue raises the contention by plaintiff that an insurance company could effectively do away with its contractual obligation to obtain written consent merely by canceling or refusing to renew, and that this would be contrary to public policy. There is no foundation whatsoever in the record to support an implication that the policy was not renewed in an attempt to get around the consent provision. As a matter of fact, the record shows that the Quilico suit was not even filed until almost nine months after the expiration and non-renewal of the policy covering Dr. Rogers. Plaintiff freely entered into a contract of insurance which clearly permitted the insurer, under certain circumstances, to settle claims and suits without his consent.

• 4 The next error assigned by plaintiff concerns the allowance of summary judgment before discovery. Supreme Court Rule 191(b) (Ill. Rev. Stat. 1977, ch. 110A, par. 191(b)) specifies the procedure to be followed where additional discovery is needed in regard to summary judgment proceedings. The Rule provides that a party seeking additional facts in a summary judgment proceeding may submit an affidavit naming persons from whom he can obtain affidavits concerning the additional facts, showing why the affidavits cannot be obtained, and stating what the party believes the persons would testify as to such matters. When that is done, the court may, among other things, grant a continuance to allow the party to obtain the affidavits, including documents, from affiants. Plaintiff did not comply with this Rule and having failed to do so, he cannot now complain of an inability to conduct discovery before summary judgment was ordered.

Plaintiff argues next that defendant's conduct breached a duty to plaintiff independent of any duty associated with the insurance policy. Whether such a duty is owed to plaintiff by defendant and if so, whether that duty has been breached, depends on the relationship between plaintiff, defendant, and the insurance company. Since defendant is a group of attorneys, inquiry into ...

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