Appeal from the Circuit Court of Cook County. The Honorable Albert Green, Judge Presiding.
Released for Publication August 29, 1996.
The Honorable Justice Egan delivered the opinion of the court: Zwick, P.j., and McNAMARA, J., concur.
The opinion of the court was delivered by: Egan
JUSTICE EGAN delivered the opinion of the court:
This is an appeal by the defendant, Vincent Travers (Travers), from an order granting judgment on the pleadings in favor of the plaintiff, Coronet Insurance Company (Coronet). The order declared that Coronet was not obliged to defend or indemnify its insured James Johnson (Johnson) in a personal injury action brought by Travers against Johnson.
On April 28, 1991, Travers was involved in a collision between his automobile and automobiles driven by Johnson and Raymond Patrick (Patrick). On May 1, 1991, Coronet notified Travers that it had been "told of an accident involving" him and Johnson and asked him to fill out an accident report. On May 20, 1991, it acknowledged receipt of the lien of Travers' attorney. Travers filed a personal injury action in the Law Division of the Cook County circuit court against Johnson and Patrick. (A copy of the complaint is not in the record.) It is undisputed that Coronet appeared for Johnson and represented him for three years in that action; it filed an answer and engaged in discovery.
Sometime later in 1992, Hartford Insurance Company, as subrogee of Travers, filed a claim for property damage to Travers' vehicle against Johnson and Patrick in the First Municipal District of the Cook County circuit court; the claim was numbered 92 M1 17159. Patrick also filed an action against Johnson. The record filed before us is not clear as to whether the action was for property damage or personal injury or whether it was filed in the law division or as a counterclaim in the municipal division action brought by Hartford. (The record does not contain copies of the complaint of Hartford or whatever was filed by Patrick.) A default judgment was entered against Johnson in the Patrick action. (The record does not establish when the judgment was entered.)
The municipal division action was consolidated with the personal injury action filed by Travers. (The record does not inform us when the consolidation order was entered or on whose motion.) *fn1
On March 22, 1994, Coronet filed this declaratory judgment action in the chancery division of the circuit court, naming as defendants Travers, Johnson and Patrick. The complaint began by asserting that the collision between the vehicles operated by Johnson, Travers and Patrick occurred on October 24, 1991. It further alleged the following:
"5. That as a result of the aforesaid collision Vincent Travers has brought a legal action against James P. Johnson and Raymond Patrick which cause of action was filed and is now pending in consolidated case no. 92 M1 17159 but there was an original case which was 92 L 2408.
6. That the plaintiff first learned of the action that was originally embodied in Cause 92 M1 17159 after there had been service of summons upon its assured, the Defendant, James P. Johnson, and, after a judgment had been taken against him in favor of the Defendant Raymond Patrick which Raymond Patrick is now seeking to have satisfied by the Plaintiff herein.
9. That by reason of the foregoing owing to the actions of James P. Johnson never informing the Coronet Insurance Company of the fact that a lawsuit had been filed against him originally in Cause 92 M1 17959 [sic] a Judgment against said party Defendant was taken and said judgment would be res judicata to any and all other pending actions against the said Defendant thereby making any efforts to defend this action moot and untenable."
The complaint asked for an order declaring that there was no coverage "for the Coronet Insurance Company to in any way indemnify for the incident of April 28, 1991," and that Coronet had no duty to defend further James P. Johnson for the incident April 28, 1992 (sic)" and that Coronet had no duty "to indemnify for any judgment entered as a consequence of the incident of April 28, 1991."
Travers, by the attorney who also represented Hartford in the subrogation action in the municipal division, filed a motion to strike the declaratory judgment complaint on the ground that Hartford was a necessary party.
Hartford was apparently made a party, but no copy of any amended complaint is in the record either. On July 26, 1994, Hartford filed a motion for judgment on the pleadings asserting that the complaint of Coronet alleged that Coronet learned of the action in the municipal division "'after there had been service of summons upon its insured, the defendant James P. Johnson'"; therefore "by its own admission, Coronet learned of Hartford's action after its insured was served," and "there is no issue for this court to decide." It further alleged that the timing of the judgment in favor of Patrick had no bearing on the ...