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06/30/97 AMERICAN COUNTRY INSURANCE COMPANY v.

June 30, 1997

AMERICAN COUNTRY INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
MARJORIE BRUHN, AS ADM'R OF THE ESTATE OF KRISTEEN ANNE KAUFMAN, DECEASED; AND TODD RAYMOND NEBEL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County. No. 93--MR--484. Honorable Melvin E. Dunn, Judge, Presiding.

Released for Publication July 30, 1997.

The Honorable Justice McLAREN delivered the opinion of the court. Geiger, P.j., and Inglis, J., concur.

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The plaintiff, American Country Insurance Company, appeals from an order of the circuit court of Kane County which entered judgment in favor of the defendants, Marjorie Bruhn, administrator of the estate of Kristeen Anne Kaufman (deceased), and Todd Raymond Nebel, in a declaratory judgment suit after the close of the plaintiff's case. We reverse.

On December 17, 1988, while driving his automobile, Nebel struck and killed two pedestrians, Kristeen and Lee Kaufman, on West Highland Avenue in Aurora, Illinois. The police questioned Nebel about the accident in June 1989, but Nebel denied involvement. Nebel concealed his involvement in the accident until January 21, 1992, when he was questioned again by the police and admitted his involvement in the accident.

On February 18, 1992, the People of the State of Illinois indicted Nebel in a two-count indictment, alleging that Nebel committed the offense of reckless homicide in the deaths of Kristeen and Lee Kaufman. Ill. Rev. Stat. 1991, ch. 38, par. 9-3 (now 720 ILCS 5/9-3 (West 1994)). On May 6, 1992, the State amended its indictment to include a third count, alleging that Nebel committed the felony offense of leaving the scene of a personal injury accident. Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-401 (now 625 ILCS 5/11-401(b) (West 1994)).

On May 6, 1992, Nebel entered a plea of guilty in the offense of leaving the scene of a personal injury accident. The assistant State's Attorney provided the court with the factual basis for the guilty plea:

"If the State's witnesses were called, those witnesses would establish proof beyond a reasonable doubt that on or about December 17, 1988, this Defendant before you, Todd R. Nebel, committed the offense of leaving the scene of a personal injury accident, which is a Class IV felony, *** in that said Defendant intentionally failed to stop the vehicle he was driving after that vehicle was involved in an accident at 548 West Highland Avenue, in Aurora, Kane County, Illinois, in which Kristeen Kaufman and Lee Kaufman were killed as a result of that accident, and thereafter failed to report the accident to any police station or sheriff's office near the place where the accident occurred within three hours after the accident, and there was no physical incapacity of the Defendant which would obviate that duty."

Thereafter, the trial judge inquired, "Is this about what the State's evidence would show if we went to trial?" In response Nebel replied, "Yes."

On July 27, 1992, Bruhn commenced a three-count action against Nebel alleging that on December 17, 1988, while operating a motor vehicle, Nebel struck and killed Kristeen Kaufman. Count I alleged negligence, count II alleged wrongful death, and count III alleged intentional infliction of emotional distress. In August 1992, Nebel notified the plaintiff of the accident, but refused to provide a statement. The plaintiff undertook the defense of Nebel, but filed a reservation of rights.

On March 30, 1993, the plaintiff filed a complaint for declaratory judgment against Nebel and Bruhn. The plaintiff alleged that it issued an automobile insurance policy to Nebel which was in effect at the time of the accident. However, the complaint also alleged that it had no duty to defend or indemnify Nebel with respect to the death of Kristeen Kaufman because Nebel failed to comply with the notice and cooperation provisions of the insurance contract. The insurance policy at issue provides:

"PART E--DUTIES AFTER AN ACCIDENT OR LOSS

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 ...


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