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12/09/88 Brotherhood Mutual v. Louis M. Roseth Et Al.

December 9, 1988

BROTHERHOOD MUTUAL INSURANCE COMPANY, PLAINTIFF-APPELLANT

v.

LOUIS M. ROSETH ET AL., DEFENDANTS-APPELLEES. -- BROTHERHOOD MUTUAL INSURANCE COMPANY, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

LOUIS M. ROSETH ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS (JOHN P.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

Curtin et al., Defendants-Appellees)

Nos. 87-2164, 87-3507 cons.

532 N.E.2d 354, 177 Ill. App. 3d 443, 126 Ill. Dec. 669 1988.IL.1780

Appeal from the Circuit Court of Cook County; the Hon. George M. Marovich, 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

In these consolidated cases, plaintiff Brotherhood Mutual Insurance Company appeals from an order of the circuit court of Cook County denying its motion for summary judgment and granting summary judgment to defendant John Curtin relative to insurance coverage under a homeowner's policy issued by it to its insureds, defendants Louis and Rosemarie Roseth (appeal No. 87 -- 2164). The Roseths cross-appeal from an order denying their post-trial motion for attorney fees and costs against BMI (appeal No. 87 -- 3507).

The pertinent facts are as follows. On April 23, 1983, the Roseths attended a birthday party for John Curtin at his mother's home; Rosemarie Roseth is John's godmother and his third cousin. Curtin and Louis Roseth were shot when a gun Louis was handling discharged; the bullet struck Louis in his finger and Curtin in his arm. Curtin was subsequently hospitalized for four months during which time Catherine Curtin, John's mother, was in frequent contact with Rosemarie Roseth, reporting John's progress. After Curtin was discharged from the hospital, he telephoned Rosemarie frequently, keeping her apprised of his condition. Rosemarie related some of her conversations with John and his mother to Louis.

On April 3, 1985, Curtin telephoned Rosemarie, told her his medical coverage for the accident was running out, and requested to see her homeowner's policy to ascertain whether the policy provided coverage for the accident. Curtin also called Louis on April 5 concerning the same matter. On April 5, Curtin picked up a copy of the Roseths' policy. On April 17 and 18, an investigator from the office of an attorney hired by Curtin interviewed the Roseths. On April 23, Louis Roseth was served with a summons in a personal injury lawsuit filed by Curtin based on the shooting incident. Louis notified BMI of the lawsuit two days later.

On August 15, 1985, BMI filed a complaint for declaratory relief, alleging the Roseths were excluded from coverage under their policy for failure to comply with its notice and "cooperation" provisions. The complaint also alleged Louis intentionally shot Curtin, thereby barring coverage under the policy. BMI and Curtin both subsequently filed motions for summary judgment. On June 8, 1987, the trial court denied BMI's motion and granted Curtin's, finding that the Roseths' notice to BMI was made within a reasonable time.

On July 1, 1987, the Roseths filed a post-trial motion for attorney fees and costs. On July 6, BMI filed an appeal from the court's June 8 order granting Curtin summary judgment. On November 10, the trial court denied the Roseths' motion for attorney fees and costs and, on November 18, the Roseths' filed an appeal limited to the trial court's denial of their motion. Both appeals were consolidated by this court.

The pertinent provisions of the insurance policy at issue here are as follows:

"WHAT YOU MUST DO IN CASE OF LOSS

1. Notice

a. In case of loss or if an insured becomes aware of anything that indicates there might be a claim under ...


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