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01/26/89 Country Mutual Insurance v. Millers National Insurance

January 26, 1989

COUNTRY MUTUAL INSURANCE COMPANY, PLAINTIFF-APPELLANT

v.

MILLERS NATIONAL INSURANCE COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

534 N.E.2d 151, 178 Ill. App. 3d 1012, 128 Ill. Dec. 131 1989.IL.80

Appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. KNECHT and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Plaintiff Country Mutual Insurance Company (Country Mutual) filed an action for declaratory judgment against defendant Millers National Insurance Company (Millers National), seeking to determine which of the two insurance companies had the responsibility for liability coverage of vehicles belonging to or leased by Fairview Cartage, a common carrier. Both parties filed motions for summary judgment. The circuit court of McLean County denied summary judgment for Country Mutual and granted summary judgment for Millers National. Country Mutual appeals. We affirm.

In this cause, we are confronted with an issue of first impression in Illinois: whether an insurance company, which insured a common carrier for a period of time but terminated its policy without filing a certificate of cancellation with the Illinois Commerce Commission, but has no apparent insurance policy in effect, is required to contribute in whole or in part to losses sustained by the insurance company with actual liability coverage. In addition, Millers National raises a question pertaining to jurisdiction. We will first discuss the jurisdictional question.

In January 1988, both parties filed motions for summary judgment. The motions were consolidated for hearing. Following the hearing, the court denied summary judgment for Country Mutual and granted summary judgment for Millers National, as stated above. Within 30 days, Country Mutual filed a motion requesting the trial court to reconsider its order in all respects. Following a further hearing, the court denied the motion to reconsider. Country Mutual filed a timely notice of appeal. Millers National argues the orders of the trial court are not final and appealable because the court did not specifically order the complaint dismissed at the same time it denied Country Mutual's motion for summary judgment. Millers National cites the rule that an order refusing to enter summary judgment is not appealable. (Schroeder v. Meier-Templeton Associates, Inc. (1984), 130 Ill. App. 3d 554, 558-59, 474 N.E.2d 744, 749.) However, in this case, the court granted summary judgment for Millers National, which finally disposed of the entire matter. The trial court's order was final and appealable. We now turn to the facts pertinent to the merits of this appeal.

Millers National issued a policy of Truckers Liability Insurance, No. GLA 20 17 08, to Vern Hellyer, d/b/a Fairview Cartage, Crystal Lake, Illinois (Fairview Cartage). The policy was effective May 31, 1973, and terminated May 31, 1974. Millers National has no record of the policy being renewed, and they did not receive a premium after the 1974 expiration date.

In 1973, section 18-701 of the Motor Carrier of Property Law (Ill. Rev. Stat. 1973, ch. 95 1/2 , par. 18-701) required common carriers, such as Fairview Cartage, to file with the Illinois Commerce Commission proof of liability insurance coverage. A certificate of liability insurance containing the pertinent information about the above-stated policy was filed with the Illinois Commerce Commission on July 12, 1973. The certificate was unsigned, and Millers National has not admitted the certificate originated from its offices. Rather, Millers National indicated in its court filings that it did not have "knowledge sufficient to form a belief as to whether it filed" the certificate. According to the deposition of Thomas Brown, secretary of Millers National and a former claims attorney, the underwriting file was destroyed in the normal course of business in 1983. The certificate includes the following paragraph:

"Neither the policy, the endorsement described herein, nor this certificate may be canceled except by the expiration of the term for which they are written or any renewal thereof, until the Company or the Insured shall have first given thirty (30) days' notice in writing to the Illinois Commerce Commission, Motor Carrier of Property Division, at its office in Springfield, Illinois, said thirty (30) days to commence to run from the date said notice is actually received in the office of said Commission."

The certificate states the policy is "[effective] from May 31, 1973, to Until Canceled." The certificate remained on file with the Illinois Commerce Commission until 1985.

On June 15, 1982, a motor vehicle leased to Fairview Cartage was involved in a motor vehicle accident which resulted in the death of at least one person and personal injuries to others involved. At the time of the accident, Country Mutual had in effect a policy of liability insurance with Fairview Cartage. Thereafter, litigation was begun in the Nineteenth Judicial Circuit Court, Lake County, Illinois, in cause No. 82-L-952, under the heading Tracy Sorenson, et al. v. Fairview Cartage, Inc., et al. Country Mutual initially undertook the defense of Fairview Cartage. When Country Mutual became aware of the certificate of insurance in the name of Millers National, Country Mutual tendered the defense of Fairview Cartage to Millers National. Millers National declined the defense of Fairview Cartage. Country Mutual continued with the defense, and a judgment was eventually rendered against Fairview Cartage. Attorneys for Country Mutual negotiated a settlement in the sum of $925,000. In addition to the settlement sum, Country Mutual incurred substantial costs in the defense of Fairview Cartage.

Following the settlement, on April 24, 1985, Country Mutual filed the instant complaint for declaratory judgment against Millers National. Country Mutual alleged the policy of insurance issued by Millers National in 1973 was still in effect by virtue of the fact that no cancellation had been made of the certificate of insurance on file with the Illinois Commerce Commission. Therefore, Millers National had wrongfully refused the tender of defense and was obligated to reimburse Country Mutual for the amount expended in settling the claims arising out of the June 15, 1982, accident, as well as for reasonable attorney fees and expenses incurred in defending and ...


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