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Buckner v. Causey

December 30, 1999

GWENDOLYN BUCKNER,
PLAINTIFF-APPELLEE,
v.
WAYNE CAUSEY, DEFENDANT-APPELLEE, (WARRIOR INSURANCE GROUP, A/K/A GALLANT INSURANCE COMPANY,
GARNISHEE-APPELLANT).



The opinion of the court was delivered by: Presiding Justice Hoffman

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

HONORABLE GLYNN J. ELLIOTT, Jr. JUDGE PRESIDING.

Upon the trial of her personal injury action, the plaintiff, Gwendolyn Buckner, obtained a judgment in the sum of $15,660.95 against the defendant, Wayne Causey. The plaintiff then commenced a garnishment proceeding against Causey's insurer, Warrior Insurance Group, also known as Gallant Insurance Company, and formerly doing business as Allied American Insurance Company (hereinafter referred to as Gallant/Warrior). In response to the garnishment summons, Gallant/Warrior: 1) answered, claiming that it was not in possession of funds belonging to Causey; and 2) filed a supplemental response, admitting that Causey was its insured but alleging that his failure to cooperate in the defense of the plaintiff's action was a breach of its liability insurance policy which relieved Gallant/Warrior of any obligation to satisfy the judgment against Causey.

The issue of Gallant/Warrior's liability under its policy was tried, resulting in the entry of a judgment against Gallant/Warrior in the sum of $16,771.91 in favor of Causey for the use and benefit of the plaintiff. The judgment, which was entered on May 7, 1998, included the principal balance of the plaintiff's judgment against Causey, plus accrued interest and costs. Gallant/Warrior filed a timely post- judgment motion entitled "Petition for Motion Notwithstanding the Verdict," requesting that the court vacate its judgment of May 7, 1998, and enter judgment in its favor.

While Gallant/Warrior's post-judgment motion was pending, Causey filed a petition pursuant to section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 1996)), seeking sanctions and an award of attorney fees and costs against Gallant/Warrior for its vexatious and unreasonable refusal to pay the judgment entered against him. On December 8, 1998, the trial court denied Gallant/Warrior's post-judgment motion and, on Causey's petition, entered an order requiring Gallant/Warrior to pay $6,727.50 for attorney fees incurred by Causey in the garnishment proceeding and the additional sum of $3,500.00 as a sanction.

Gallant/Warrior now appeals from the trial court's orders of May 7, 1998, and December 8, 1998, contending that the trial court: 1) "abused its discretion" in requiring it to indemnify Causey for the plaintiff's underlying judgment; and 2) erred in awarding Causey relief under section 155 of the Illinois Insurance Code.

Before addressing Gallant/Warrior's arguments in support of its assignments of error, we will dispose of the plaintiff's request that we exercise our discretion and strike Gallant/Warrior's brief for failure to comply with the applicable Supreme Court Rules. There is little question that the plaintiff's objections to Gallant/Warrior's brief, even as supplemented, are well taken. The Statement of Facts is argumentative in violation of Rule 341(e)(6) (177 Ill. 2d R. 341(e)(6)), and is in some places incoherent. Further, the brief lacks a concise statement of the standard of review applicable to each issue raised as required by Rule 341(e)(3) (177 Ill. 2d R. 341(e)(3)). As originally filed, the brief was missing a page and had an incomplete appendix.

Although we permitted Gallant/Warrior to supply the missing page of its brief and provide us with a complete appendix, it made no effort to correct its Statement of Facts or set forth standards of review. However, in the interests of judicial economy and in an effort to dispose of this appeal without further expense to the parties, we decline to strike the brief. The brief sets forth Gallant/Warrior's assignments of error, both the plaintiff and Causey have been able to respond to the issues raised, and the facts necessary to an understanding of the issues are readily ascertainable from the relatively short record. We caution, however, that our decision not to strike Gallant/Warrior's brief should not be interpreted as a signal that we are willing, as a matter of course, to overlook violations of the Supreme Court Rules in briefs filed with this court. We are not. Simply put, we find no useful purpose would be served in this case by striking Gallant/Warrior's brief.

We will first address Gallant/Warrior's contention that the trial court erred in finding that it was required to indemnify Causey for the plaintiff's underlying judgment. In its brief, Gallant/Warrior claims that the trial court abused its discretion. However, discretion has nothing to do with the issue. When a garnishee's answer is contested, a trial of the issues presented is to be conducted as in all other civil cases (735 ILCS 5/ 12-711 (West 1996)). That is exactly what occurred below. Consequently, the question before us is not whether the trial court abused its discretion but whether its judgment is against the manifest weight of the evidence. First Baptist Church of Lombard v. Toll Highway Authority, 301 Ill. App. 3d 533, 542, 703 N.E.2d 978 (1998).

"A judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence." Bazydlo v. Volant, 164 Ill. 2d 207, 215, 647 N.E.2d 273 (1995). For the reasons which follow, we are unable to say that the judgment entered in this case on May 7, 1998, against Gallant/Warrior and in favor of Causey for the use and benefit of the plaintiff is against the manifest weight of the evidence.

Gallant/Warrior does not dispute that Causey was its insured at the time he was involved in the motor vehicle accident which gave rise to the underlying litigation and the judgment entered against him. Further, there is no dispute as to the provisions of Gallant/Warrior's policy relating to the insured's obligation to cooperate in the defense of any action subject to coverage. Causey was required to cooperate and, at Gallant/Warrior's request, attend hearings and trials. The parties also stipulated that Causey did not appear or testify at the trial of the plaintiff's claim.

On February 26, 1998, the trial court heard the testimony of Causey; Grant Blumenthal, the attorney who represented Causey at the trial of the plaintiff's action; Edward Lowery, Blumenthal's supervisor; and Jeff Christofinelli, a claims adjuster employed by Gallant/Warrior. When the hearing concluded, the trial court took the matter under advisement. On May 7, 1998, the trial court issued its written order, finding that Gallant/Warrior failed to establish a defense of non- cooperation. Our examination of the record reveals more than sufficient evidence to support such a finding.

Although the trial date for the plaintiff's action, October 20, 1997, was set by an order dated August 7, 1997, Causey was first notified of the trial date when he received a phone call from Blumenthal on either October 17 or 18, 1997. Blumenthal was first assigned to the case on October 17, 1997. According to Blumenthal, he spoke to Causey by phone again on October 19, 1997, and advised him to be on standby for trial the following day, Monday, October 20. Blumenthal testified that he called Causey on October 20, 1997, and told him to be in court on October 21. Prior to October 17, 1997, Causey was not notified either in writing or by phone that the trial of the plaintiff's action had been set for October 20, 1997.

Causey testified that he informed Blumenthal that he did not have sufficient funds to get to court. According to Causey, he told Blumenthal, when Blumenthal first called, that he only had $3.00, and when Blumenthal call for the second time, Causey told him that he had no funds. Blumenthal, however, denied that Causey told him that he had insufficient funds to come to ...


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