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07/27/87 Edwin Olivieri, v. Coronet Insurance Company

July 27, 1987

EDWIN OLIVIERI, PLAINTIFF-APPELLEE

v.

CORONET INSURANCE COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

528 N.E.2d 986, 173 Ill. App. 3d 867, 124 Ill. Dec. 95 1987.IL.1061

Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.

APPELLATE Judges:

JUSTICE MANNING delivered the opinion of the court. QUINLAN and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

Plaintiff, Edwin Olivieri, obtained a default judgment in the amount of $25,000 against Julius Tomlin in the circuit court of Cook County. He subsequently brought a declaratory judgment action against Tomlin's insurer, Coronet Insurance Company, seeking to hold it liable for that judgment. Plaintiff moved for summary judgment. After a hearing, the trial court granted summary judgment for the plaintiff and held Coronet liable for the entire amount of the judgment. Coronet appeals, contending that the trial court erred in granting summary judgment for the plaintiff since (1) it had a viable policy defense based on its insured's breach of his notice-of-suit provision; (2) the pleadings raise a genuine issue of material fact; (3) the amount of the judgment was in excess of the insured's policy; and (4) plaintiff lacks standing to proceed directly against the insurer.

We affirm the decision of the trial court.

The facts pertinent to this appeal are as follows. On June 30, 1977, Edwin Olivieri and Julius Tomlin were involved in an automobile accident. On October 2, 1978, plaintiff's counsel sent a notice of attorney's lien to Coronet Insurance Company regarding a claim by plaintiff against its insured for injuries sustained in the accident. By a letter dated November 6, 1978, Coronet acknowledged receipt of the attorney's lien, indicated that it was investigating the accident, asked that it be forwarded "specials" as soon as they were available and requested that the plaintiff submit himself for an examination by a physician of Coronet's choice. On June 18, 1979, plaintiff filed a complaint at law against Julius Tomlin for the injuries he sustained in the automobile accident of June 30, 1977, and forwarded a copy of the complaint and summons to Coronet. On February 2, 1980, Julius Tomlin was served with alias summons, and a default judgment in the amount of $25,000 was entered against him on May 13, 1981.

Plaintiff filed a separate action for declaratory relief, seeking to hold Coronet liable for the full amount of the judgment. Coronet asserted as an affirmative defense that it was not liable to the plaintiff on the ground that its insured had breached his policy's notice-of-suit provision.

In August 1986, plaintiff filed a request to admit facts and genuineness of documents pursuant to Supreme Court Rule 216 (107 Ill. 2d R. 216) requesting Coronet to admit the following: (1) that Coronet had received plaintiff's counsel's notice of attorney's lien; (2) that it had sent a letter to plaintiff acknowledging receipt of the lien; and (3) that it received a copy of the complaint in the underlying action sent by plaintiff's counsel. Coronet never filed a response to the request to admit.

Plaintiff moved for summary judgment supported by Coronet's admissions pursuant to the request to admit facts. Coronet responded to the motion, asserting that its insured's breach of his notice-of-suit provision precluded summary judgment. The trial court granted summary judgment in favor of the plaintiff, holding that the contract of insurance issued by Coronet to Julius Tomlin was a valid contract, obligating Coronet for the entire amount of the judgment.

A motion for summary judgment should only be granted when, in considering affidavits, depositions, admissions, exhibits and pleadings on file, and construing them strictly against the movant and in favor of the opponent, there is no genuine issue as to any material fact. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) When deciding a motion for summary judgment, the court considers the pleadings to determine the issues, and in so doing, it presupposes that the pleadings join the issue. (Metropolitan Sanitary District v. Anthony Pontarelli & Sons, Inc. (1972), 7 Ill. App. 3d 829, 839, 288 N.E.2d 905.) If a party moving for summary judgment supplies facts which, if not contradicted, would entitle such party to a judgment as a matter of law, the opposing party cannot rely on his unverified pleadings alone to raise issues of material fact. (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457.) The summary judgment procedure is not intended to be used as a means of trying an issue of fact, but rather, as a means of determining whether there is an issue of fact to be tried. The moving party's right to summary judgment must be clear and determinable solely as a question of law. Facts, not Conclusions, must be presented and the Judge may not draw fact inferences. (Lesser v. Village of Mundelein (1975), 36 Ill. App. 3d 433, 437, 344 N.E.2d 29.) If reasonable men could draw different inferences from the facts presented, summary judgment should be denied. McVey v. Discher (1970), 122 Ill. App. 2d 408, 413, 259 N.E.2d 300.

Coronet contends on appeal that the trial court erred in granting summary judgment in favor of the plaintiff since it had a valid policy defense. It also maintains that the plaintiff lacks standing to maintain the present action and that Coronet could not be held liable for the entire amount of the judgment.

In the declaratory judgment action, plaintiff sought a declaration that the contract of insurance between Tomlin and Coronet was a valid and existing contract and that pursuant to the contract, Coronet was liable for the $25,000 judgment entered against its insured. Coronet acknowledged the existence of a contract of insurance, but argued that it was not obligated to pay a judgment rendered against an insured where there has been prejudicial noncompliance with the conditions of the insurance policy. It also never challenged the plaintiff's standing to bring suit nor did it contest the extent of its ...


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