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03/28/89 Anthony Grasso, v. Mid-Century Insurance

March 28, 1989

ANTHONY GRASSO, PLAINTIFF-APPELLEE AND COUNTERDEFENDANT-APPELLEE

v.

MID-CENTURY INSURANCE COMPANY, DEFENDANT-APPELLANT AND COUNTERPLAINTIFF-APPELLANT (FARMERS INSURANCE GROUP



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

of Companies et al., Defendants; Bonnie

Hlevyack, Defendant)

536 N.E.2d 977, 181 Ill. App. 3d 286, 129 Ill. Dec. 927 1989.IL.405

Appeal from the Circuit Court of Cook County; the Hon. Roger W. Kiley, Judge, presiding.

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. BILANDIC and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

This is an appeal from orders of the circuit court granting plaintiff/counterdefendant Anthony Grasso's (Grasso's) complaint for declaratory judgment and post-trial motion, and denying defendant/counterplaintiff Mid-Century's (Mid-Century's) counterclaim for declaratory judgment. We are asked to determine whether the court entered these orders in error.

On August 13, 1985, Grasso filed a complaint for declaratory judgment against defendant Bonnie Hlevyack (Bonnie) and Mid-Century, one of defendant Farmers Insurance Group of Companies (Farmers), alleging: Mid-Century *fn1 issued to James Hlevyack (James) an automobile liability insurance policy, effective February 27, 1982, to August 27, 1982; on June 23, 1982, to James' daughter, Bonnie, collided with Grasso's motorcycle while driving a jeep owned by her boyfriend, Walter J. Henely, Jr. (Henely); and the jeep was insured in Henely's name by the Home and Auto Insurance Company (Home and Auto). Grasso further asserted: he filed a negligence action against Bonnie in September 1983; the policy issued by Mid-Century to James "provided excess coverage for [Bonnie]" for the collision between Grasso and Bonnie; and Mid-Century declined to provide coverage for the occurrence. Grasso sought a judgment declaring that the policy issued by Mid-Century to James provides excess coverage for Bonnie for any liability to Grasso as a result of the June 23, 1982, accident.

By answer filed June 2, 1986, Mid-Century denied that James' policy provided coverage for the collision. On September 17, 1986, Mid-Century filed a four-count counterclaim for declaratory judgment, naming Bonnie as a defendant and Grasso as a counterdefendant and insisting in the first count that: the subject policy requires that the insured provide Mid-Century with written notice of an "accident, occurrence, or loss . . . as soon as practicable" after the event and forward "immediately" to the company "every demand, notice, summons or process" received by the insured; notice of the June 23, 1982, accident was not tendered to Mid-Century until December 18, 1984; Bonnie never forwarded any summons or complaint from the underlying cause to Mid-Century; and the two-year delay in providing notice to Mid-Century violates the policy's notice provision and therefore relieves Mid-Century of any duty to defend or indemnify Bonnie with respect to the underlying claim. Counts II through IV similarly requested findings and declarations of noncoverage arising

Grasso answered the counterclaim twice. Bonnie's September 22, 1987, answer to Grasso's complaint admitted all "allegations contained therein;" on the same day, Bonnie filed an answer to Mid-Century's counterclaim for declaratory judgment.

Following a trial, the court entered an order on November 9, 1987, finding: (1) for Farmers and Mid-Century and against Grasso and Bonnie on Grasso's complaint for declaratory judgment; (2) for Mid-Century and against Grasso and Bonnie on count I of Mid-Century's counterclaim; and (3) against Mid-Century on counts II and III of its counterclaim.

Pursuant to Grasso's post-trial motion filed December 7, 1987, the court entered another order on March 29, 1988, finding: (1) against Farmers and Mid-Century and for Grasso and Bonnie on Grasso's complaint; (2) against Mid-Century and for Grasso and Bonnie on count I of the counterclaim "pertaining to notice"; and further concluding that Farmers and Mid-Century are obligated to furnish a defense for Bonnie and to pay any judgment, "to the extent of the coverage afforded under its policy of insurance," entered against her as a result of Grasso's claim. Mid-Century appeals.

Mid-Century initially urges that the circuit court erroneously denied count I of its counterclaim for declaratory judgment, because Bonnie's neglect to tender prompt notice of the June 23, 1982, incident precludes coverage under ...


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