Appeal from the Circuit Court of Cook County; the Hon. Irwin
Cohen, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
This appeal arises out of a garnishment action (nonwage) brought by plaintiff, Hattie Murphy, against defendant, Underwriters at Lloyd's, London, Magill Agency (Lloyd's).
On June 16, 1977, plaintiff filed a wrongful death complaint solely against Adrian Peterson. Plaintiff alleged that, on April 19, 1977, Adrian Peterson negligently fired a weapon, thereby causing the death of plaintiff's decedent, George Murphy, while Murphy was at or near the 400 block of North Avers Avenue, in Chicago. Adrian Peterson had previously been convicted of involuntary manslaughter based upon his actions on April 19, 1977, which resulted in the death of George Murphy. Adrian was apparently guarding his mother's house, vacated because of a fire, when he shot and killed George Murphy. Adrian erroneously believed that Murphy was a burglar he had confronted in the house the night before. In the wrongful death action, plaintiff sought damages against Adrian in the amount of $100,000.
The wrongful death case was tried without a jury by stipulation of counsel. On May 9, 1983, the trial court entered a $90,000 judgment in favor of plaintiff and against Adrian as follows:
"This cause coming on for trial before this Court, the jury having been waived, the Court finds as follows:
1. The defendant, Adrian Peterson, was negligent in causing the death of George Lee Murphy, Jr.
2. Because of his negligence the defendant, Adrian Peterson, is found liable to plaintiffs in the amount of $90,000.00.
It is hereby ordered that judgment be entered in favor of the plaintiffs and against the defendant in the amount of $90,000.00."
Plaintiff alleges that defendant herein, Lloyd's, was notified of this action, and Lloyd's does not dispute the point. However, it cannot be determined from the record exactly when Lloyd's received notice of the action. In the wrongful death action, plaintiff filed interrogatories to defendant Adrian on February 8, 1978, inquiring as to the existence of liability insurance covering defendant. It could be inferred that plaintiff found out about the policy issued by Lloyd's to Adrian's mother as a result of this interrogatory. On July 28, 1981, plaintiff filed a request to produce the mother's homeowner's policy. The affidavit for garnishment was filed on August 31, 1983, and, as stated above, the judgment against Adrian was entered on May 9, 1983.
From July 8, 1976, to July 8, 1977, Lloyd's had issued an insurance policy to Florence M. Peterson. The policy was a "surplus line policy," meaning that licensed Illinois insurers had refused to write the risk. The policy provided:
"Insured's Name and Mailing Address Florence M. Peterson 430 North Avers Avenue, Chicago, Illinois
In consideration of the Provisions and Stipulations Herein * * * and of the Premium Specified * * * this Certificate * * * does insure the Insured named in the Declarations above and legal representatives * * *."
Coverage E of the policy was a $25,000 personal liability provision. Coverage E provided in full:
"This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient. This Company shall not be obligated to pay ...