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10/31/89 Jess Long, v. the Great Central

October 31, 1989





Marketing Agency, Inc., Third-Party, Defendant-Appellee and Cross-Appellant)

546 N.E.2d 739, 190 Ill. App. 3d 159, 137 Ill. Dec. 794 1989.IL.1720

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


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


This litigation arose as a result of the failure of an insured to deliver documents relevant to a lawsuit against him to his insurer, contrary to the requirements of the applicable insurance policy. Instead, the insured purportedly delivered these documents to the insurance agency from which he purchased the policy in question. The principal issues on appeal are (1) whether the insurance agency was the agent of the insurer for purposes of accepting notices and documentation of lawsuits against its insureds, and (2) whether the insurer had actual notice of the lawsuit against its insured sufficient to impose upon it a duty to defend the suit.

The insurance policy in question is a dramshop policy issued by defendant Great Central Insurance Company (Great Central) to plaintiff Jess Long (Long). Long purchased the policy through Bloomington Insurance Marketing Agency, Inc. . On March 2, 1984, Long was served with a complaint and summons in a dramshop action. The plaintiff in that lawsuit is Neva R. Gipson, administrator of the estate of decedent Bobby D. Gipson. Long delivered the complaint and summons to BIMA, but BIMA apparently did not forward them to Great Central. No appearance was filed on behalf of Long, and on March 28, 1985, a default judgment in the amount of $23,645.65 was entered against him.

Only two counts of Long's complaint -- second-amended count III and count IV -- are here at issue. Count III requests damages for breach of Great Central's obligation to defend the lawsuit against Long on the basis that delivery of the suit papers to BIMA, Great Central's purported agent, was the same as delivery of those documents to Great Central. Count IV requests damages for failure to defend the Gipson lawsuit on the basis Great Central possessed in its files information which should have disclosed to it the fact that this lawsuit had been filed. The circuit court entered summary judgment in favor of Great Central as to second-amended count III and dismissed count IV. Long appeals these orders.

In addition to Long's claims against Great Central, this case also involves a third-party action by Great Central against BIMA. Great Central alleged any damages to Long are attributable to BIMA's failure to transmit the summons and complaint in Gipson's lawsuit against Long to Great Central. BIMA denied these allegations and specifically denied ever receiving the summons and complaint in that lawsuit. BIMA also filed an affirmative defense to Great Central's third-party complaint and filed a cross-claim against Long. In its affirmative defense, BIMA asserted Long had a valid defense to Gipson's lawsuit and Great Central should therefore have sought to vacate the default judgment entered against Long pursuant to section 2-1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401). BIMA alleged Great Central's failure to do so barred any recovery by it, since this amounted to a failure on its part to mitigate its damages.

BIMA also filed a motion to recuse counsel for Long on the basis that Long's counsel, Mike McElvain, ought to be called as a witness for Long.

The circuit court dismissed BIMA's affirmative defense and cross-claim. BIMA argues on appeal that the dismissal of its affirmative defense and cross-claim, as well as the denial of its motion for recusal of Long's counsel, should be reversed.

We first consider the circuit court's entry of summary judgment as to second-amended count III of Long's complaint. The dramshop policy which Great Central issued to Long provides in pertinent part:

"2. NOTICE OF CLAIM OR SUIT. Upon the happening of any occurrence likely to give rise to a claim under this policy, or upon the receipt by the insured of notice or knowledge of any claim or of any suit or proceeding, notice in writing with full particulars shall be given to Great Central Insurance Company, immediately after same comes to the knowledge of the Insured or Insured's representative and every letter, claim, writ, ...

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