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03/18/88 Kenneth H. Gabriel, Adm'r v. Farmers Insurance Company

March 18, 1988

GABRIEL, DECEASED, AND INDIV., PLAINTIFF-APPELLEE

v.

ILLINOIS FARMERS INSURANCE COMPANY, DEFENDANT (SHARON COLASURDO, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

KENNETH H. GABRIEL, Adm'r of the Estate of Kenneth J.

525 N.E.2d 864, 171 Ill. App. 3d 663, 121 Ill. Dec. 557 1988.IL.384

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Defendant, Sharon Colasurdo (Sharon), the mother and noncustodial parent of decedent, Kenneth J. Gabriel, appeals from an order of the circuit court of Cook County finding that she was not entitled to share in insurance proceeds received in settlement of a wrongful death claim; the court awarded the proceeds of the settlement to plaintiff, Kenneth H. Gabriel (Kenneth), decedent's father and custodial parent.

The pertinent facts are as follows. Kenneth, as administrator of decedent's estate, filed a wrongful death action against Robert Concannon, charging him with the wrongful death of decedent on September 23, 1983; decedent was 16 years old at the time Concannon's car struck and killed him. Kenneth also filed a complaint in chancery against the Illinois Farmers Insurance Company, his own insurance carrier, to reform the policy held by him with respect to its "underinsurance" provisions. Illinois Farmers subsequently agreed to the reformation and consented to increase the underinsurance coverage from $25,000 to $50,000 subject to a $25,000 deductible because of the insurance coverage available under Concannon's insurance policy. On September 18, 1986, under the action to reform the Illinois Farmers policy, Kenneth also filed a petition to adjudicate dependency, requesting that the court determine the distribution of the net amount available under the insurance policy settlement pursuant to the wrongful death statute, which provides that distribution of amounts recovered as damages be made to a surviving spouse and next of kin "in the proportion . . . that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person" (Ill. Rev. Stat. 1985, ch. 70, par. 2).

A hearing on the matter was held on October 3, 1986. Sharon and her daughter/decedent's sister, Kristine, appeared with an attorney. Upon determining that their attorney had not filed an appearance on their behalf, the trial court advised them they could not participate in the proceedings, but indicated they would be allowed to participate if an appearance were filed. Apparently Sharon's attorney was not prepared to file his appearance at that time and the court advised him that he, Sharon and Kristine could observe the proceedings, and Sharon's counsel was instructed that he could later pursue whatever action he deemed necessary if he was not "satisfied" with the Disposition rendered after hearing on the petition.

The hearing proceeded and Kenneth testified that in 1970 he was awarded the sole care, custody and control of decedent (age three at the time) and Kristine; decedent resided exclusively with him until his death in September 1983; and he and decedent were very close, went on camping and fishing trips, and did home chores together. Kenneth further testified that Sharon's relationship with decedent was "none" and that "she never came around to see him"; that her contribution of moneys toward the maintenance and support of decedent was "zero"; her visits with decedent and Kristine were not regular -- "maybe once a year, once every six months"; that she saw decedent "maybe one time" in the year prior to his death; that her relationship with decedent was "distant . . . they didn't really know each other"; and on several occasions she took Kristine to Disney World, but did not take decedent.

Kenneth's sister and present wife also testified to the effect that Sharon did not make "regular visitations with her son"; decedent did not have any relationship with Sharon; decedent had a very close relationship with Kenneth -- "they depended on each other"; that Sharon never came to visit decedent or call to inquire about his welfare; and that Sharon contributed no money toward decedent's support.

Sharon also was called as a witness by the court. She testified that she saw decedent "all the time" and gave him money "all the time." The following colloquy also occurred between the court and Sharon:

"Q. Did you ever take him [decedent] to Disney World?

A. No. Because he wasn't around. He was in the halfway house. I ...


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