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05/18/88 Antonio Del Grosso Et Al., v. Casualty Insurance Company

May 18, 1988

ANTONIO DEL GROSSO ET AL., PLAINTIFFS-APPELLANTS

v.

CASUALTY INSURANCE COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

524 N.E.2d 1042, 170 Ill. App. 3d 1098, 120 Ill. Dec. 860 1988.IL.774

Appeal from the Circuit Court of Cook County; the Hon. Thomas O'Brien, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WHITE delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Plaintiffs Antonio Del Grosso and Michigan Mutual Insurance Company filed a declaratory judgment action seeking a determination that defendant Casualty Insurance Company was obliged to defend and indemnify Del Grosso in litigation arising from an accident involving Del Grosso's truck and a pedestrian, Jo Ann Turner. The trial court granted Casualty's motion for summary judgment, and we affirm.

Del Grosso had engaged Michigan Mutual as his insurer upon purchase of a 1979 tractor. He subsequently entered into an agreement with Central States Trucking Company which allowed Central States to lease his vehicle and employ him as a driver. This agreement required Central States to purchase insurance for Del Grosso and his vehicle; it purchased insurance from Casualty. Michigan Mutual remained liable for damages incurred in excess of the limit of the Casualty policy.

On April 23, 1982, Del Grosso's tractor-trailer struck Jo Ann Turner. Del Grosso notified Central States of the accident immediately. Central States, in reporting the accident to Casualty, stated that the accident report was advisory only, that Central States would process the claim, and that Del Grosso was covered by his Michigan Mutual policy.

Turner filed suit against Del Grosso sometime in 1982. Michigan Mutual employed counsel for his defense. In June 1984, Del Grosso's counsel subpoenaed Central States, demanding documentation of insurance coverage which Central States purchased for Del Grosso. In July 1984, defense counsel learned that Casualty had been the insurer for Central States' independent contractors. Counsel wrote to Casualty in December 1984, for the first time informing Casualty of the Turner action and tendering Del Grosso's defense to Casualty. In January 1985, counsel sent Turner's complaint to Casualty.

Casualty responded with a letter asking details of Central States' legal relationship with the Del Grosso vehicle at the time of the accident and questioning the delay in forwarding information on the matter. On March 21, 1985, Michigan Mutual filed the declaratory judgment action which forms the basis for the instant appeal. On August 26, 1985, Michigan Mutual settled the Turner claim. Approximately one year later, the trial court found that Del Grosso had not complied with the Casualty policy provision which required him to forward all suit papers to the company and granted Casualty's motion for summary judgment.

Appellants contend that Casualty, to assert the failure to comply with the policy's notice of suit provision as a defense to coverage, must show that it was prejudiced by the breach and that its failure to make such a showing requires reversal of the trial court's judgment. Illinois courts, however, have not required insurers to show prejudice before raising a breach of a notice provision as a defense to coverage:

"In such cases where the giving of notice and the forwarding of suit papers have specifically been made conditions precedent to a right of action against the insurer 'We find the authorities overwhelmingly in favor of giving full recognition to such provisions, in which case the presence or absence of prejudice resulting from a delay in giving notice becomes immaterial.' [Citation.]

The issue is not whether the insured has been prejudiced but, rather, whether reasonable notice has been given." City of Chicago v. United States Fire Insurance Co. (1970), 124 Ill. App. 2d 340, 347-48, 260 N.E.2d 276.

We believe that the arguments and the factual setting presented in the case at bar fail to justify a ...


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