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August 23, 1996


Appeal from Circuit Court of Greene County. No. 94MR70. Honorable James W. Day, Judge Presiding.

Released for Publication October 2, 1996. As Corrected October 18, 1996.

Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Concurring. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On November 21, 1994, plaintiff General Casualty Company of Illinois (General Casualty) brought suit in the circuit court of Greene County against defendants Russell E. Juhl, his son, Thomas E. Juhl, Gary K. Flatt, and Sharon Flatt. The complaint sought a declaratory judgment determining that a policy of automobile insurance issued by General Casualty to Russell did not cover any liability Russell had to the Flatts arising from a January 24, 1990, collision between trucks driven by Russell and Gary. The defendants filed answers and counterclaims seeking a declaration that coverage did exist. The parties made cross-motions for summary judgments.

On November 27, 1995, the circuit court entered an order granting summary judgment to defendants finding that General Casualty had coverage for any liability of Russell arising from the collision in excess of the $100,000 coverage of a policy issued by Western States Insurance Company (Western States) which covered the truck which Russell was driving at the time of the collision. The truck was owned by Thomas and his brother Robert Juhl. General Casualty has appealed. We reverse and remand with directions to enter a summary judgment declaring that General Casualty has no coverage for the collision involved.

The underlying facts before the court when it ruled upon the cross-motions for summary judgment were undisputed. Thus, a movant is entitled to summary judgment if those facts "show that *** [such a movant] is entitled to a judgment as a matter of law" (735 ILCS 5/2-1005(c) (West 1992)). The parties agree that if General Casualty had coverage, it was excess coverage. Actually, defendants' theory is based upon that coverage being excess coverage.

General Casualty's theory that it is entitled to judgment is based primarily upon provisions of its policy entitled "Duties After An Accident Or Loss," and which state in part as follows:

"A. We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses.

B. A person seeking any coverage must:

(2) Promptly send us copies of any notices or legal papers received in connection with the accident or loss." (Emphasis added.)

General Casualty contends that it was not notified "promptly" of the January 20, 1990, collision as it received no notice of the collision until March 3, 1993. This notice was (1) three years and one month after the collision; (2) one year and seven months after Russell received notice a claim would be made; (3) one year and one month after suit was brought by the Flatts against Russell; and (4) seven months after the Flatts, in answer to an interrogatory in the underlying case, stated that the value of their claim was $400,000.

Defendants maintain that because General Casualty was only an excess carrier as far as the instant collision was concerned, it was only entitled to notice a reasonable time after the insured became aware that the underlying claim was likely to exceed the coverage of the primary policy. Defendants rely principally upon the precedent of Hartford Accident & Indemnity Co. v. Rush-Presbyterian-St. Luke's Medical Center, 231 Ill. App. 3d 143, 595 N.E.2d 1311, 172 Ill. Dec. 641 (1992), and Brotherhood Mutual Insurance Co. v. Roseth, 177 Ill. App. 3d 443, 532 N.E.2d 354, 126 Ill. Dec. 669 (1988).

In Hartford, an insurer sought a declaratory judgment that neither a primary nor an excess coverage liability policy issued to a medical center covered a claim brought on behalf of a child allegedly brain damaged upon its birth at the medical center. As here, cross-motions for summary judgment were made. The birth took place in 1976. Suit was brought on behalf of the child against the medical center in August 1984. In April 1986, the insurer was notified that the primary and excess coverage was implicated. The second district ...

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