Brotherhood Mut. Ins. Co. v. Roseth

• Decision Date: 09 December 1988
• Docket Number: 87-3507,Nos. 87-2164,s. 87-2164
• Citation: 177 Ill.App.3d 443,532 N.E.2d 354,126 Ill.Dec. 669
• Parties: , 126 Ill.Dec. 669 BROTHERHOOD MUTUAL INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellant, v. Louis M. ROSETH, Rosemarie E. Roseth, John P. Curtin, Catherine Curtin, and Smith & Wesson, a Division of Lear Siegler, Inc., a foreign corporation, Defendants-Appellees. BROTHERHOOD MUTUAL INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellant, Cross-Appellee, v. Louis M. ROSETH and Rosemarie E. Roseth, Defendants-Appellees, Cross-Appellants (John P. Curtin, Catherine Curtin, and Smith & Wesson, a Division of Lear Siegler, Inc., a foreign corporation, Defendants-Appellees).
• Court: United States Appellate Court of Illinois

Page 354

532 N.E.2d 354

177 Ill.App.3d 443, 126 Ill.Dec. 669

BROTHERHOOD MUTUAL INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellant, v. Louis M. ROSETH, Rosemarie E. Roseth, John P. Curtin, Catherine Curtin, and Smith & Wesson, a Division

of Lear Siegler, Inc., a foreign

corporation, Defendants-Appellees.

BROTHERHOOD MUTUAL INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellant, Cross-Appellee, v. Louis M. ROSETH and Rosemarie E. Roseth,

Defendants-Appellees, Cross-Appellants (John P. Curtin,

Catherine Curtin, and Smith & Wesson, a Division of Lear

Siegler, Inc., a foreign corporation, Defendants-Appellees).

Nos. 87-2164, 87-3507.

Appellate Court of Illinois First District, Fifth Division.

Dec. 9, 1988.

Christine E. Smith, John J. O'Connor, Chicago, for plaintiff-appellant.

Daniel S. Mathless, Jody B. Rosenbaum, Baum, Glick & Wertheimer, P.C., Chicago, for defendants-appellees, cross-appellants, Louis M. Roseth and Rosemarie E. Roseth.

Donald J. O'Brien, Sr., James J. Reidy, and Michael W. Rathsack, of counsel, Chicago, for defendant-appellee, John P. Curtin.

Justice MURRAY delivered the opinion of the court:

In these consolidated cases, plaintiff Brotherhood Mutual Insurance Company (BMI) appeals from an order of the circuit court of Cook County denying its motion for summary judgment and granting summary judgment to defendant John Curtin relative to insurance coverage under a homeowner's policy issued by it to its insureds, defendants Louis and Rosemarie Roseth (appeal No. 87-2164). The Roseths cross-appeal from an order denying their post-trial motion for attorney fees and costs against BMI (appeal No. 87-3507).

The pertinent facts are as follows. On April 23, 1983, the Roseths attended a birthday party for John Curtin at his mother's home; Rosemarie Roseth is John's godmother and his third cousin. Curtin and Louis Roseth were shot when a gun Louis was handling discharged; the bullet struck Louis in his finger and Curtin in his arm. Curtin was subsequently hospitalized for four months during which time Catherine Curtin, John's mother, was in frequent contact with Rosemarie Roseth, reporting John's progress. After Curtin was discharged from the hospital, he telephoned Rosemarie frequently keeping her apprised of his condition. Rosemarie related some of her conversations with John and his mother to Louis.

On April 3, 1985, Curtin telephoned Rosemarie, told her his medical coverage for the accident was running out, and requested to see her homeowner's policy to ascertain whether the policy provided coverage for the accident. Curtin also called Louis on April 5 concerning the same matter. On April 5, Curtin picked up a copy of the Roseths' policy. On April 17 and 18, an investigator from the office of an attorney hired by Curtin interviewed the Roseths. On April 23, Louis Roseth was served with a summons in a personal injury lawsuit filed by Curtin based on the shooting incident. Louis notified BMI of the lawsuit two days later.

On August 15, 1985, BMI filed a complaint for declaratory relief, alleging the Roseths were excluded from coverage under their policy for failure to comply with its notice and "cooperation" provisions. The complaint also alleged Louis intentionally shot Curtin, thereby barring coverage under the policy. BMI and Curtin both subsequently filed motions for summary judgment. On June 8, 1987, the trial court denied BMI's motion and granted Curtin's, finding that the Roseths' notice to BMI was made within a reasonable time.

On July 1, 1987, the Roseths filed a post-trial motion for attorney fees and costs. On July 6, BMI filed an appeal from the court's June 8 order granting Curtin summary judgment. On November 10, the trial court denied the Roseths' motion for attorney fees and costs and, on November 18, the Roseths' filed an appeal limited to the trial court's denial of their motion. Both appeals were consolidated by this court.

The pertinent provisions of the insurance policy at issue here are as follows:

"WHAT YOU MUST DO IN CASE OF LOSS

1. Notice

a. In case of loss or if an insured becomes aware of anything that indicates there might be a claim under this policy, he or she s1st: 1) promptly give us or our agent notice * * *."

BMI's complaint for declaratory relief, incorporated and made a part of its motion for summary judgment, also alleged that the Roseths were excluded from coverage pursuant to its "Exclusions" provision, i.e.:

"EXCLUSIONS

1. Exclusions That Apply To Both Personal Liability and Medical Payment To Others--This policy does not apply to liability:

* * *

* * *

h. resulting from bodily injury or property damage caused intentionally by or at the direction of any insured * * *." (Emphasis added.)

In appeal No. 87-2164, the Roseths initially argue that this court lacks jurisdiction to entertain BMI's appeal, contending that the order appealed from was not a final order because it did not contain a Supreme Court Rule 304(a) finding (107 Ill.2d R. 304(a)) and their post-trial motion for attorney fees, which preceded BMI's notice of appeal, is a separate claim which the trial court had not yet adjudicated at that time.

Supreme Court Rule 304(a) (107 Ill.2d R. 304(a)) requires that where multiple parties or multiple claims for relief are involved in an action, no appeal may be taken from a final judgment as to one or more but fewer than all the parties or claims unless the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. "In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." (107 Ill.2d R. 304(a)); see also Ferguson v. Riverside Medical Center (1986), 111 Ill.2d 436, 96 Ill.Dec. 47, 490 N.E.2d 1252.) The purpose of Rule 304(a) is "to discourage piecemeal appeals in the absence of just reason, and to remove the uncertainty which exists when a final judgment is entered on less than all the matters in the controversy." (Emphasis added.) Mares v. Metzler (1980), 87 Ill.App.3d 881, 884, 42 Ill.Dec. 832, 409 N.E.2d 447; Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill.App.3d 625, 630, 15 Ill.Dec. 70, 373 N.E.2d 416.

In the instant case, prior to submission of Roseths motion for attorney fees, the trial court ruled that its order was "final and appealable." We have held this language is not the equivalent of a Rule 304(a) finding. (See Hamer v. Lentz (1987), 155 Ill.App.3d 692, 108 Ill.Dec. 163, 508 N.E.2d 324.) However, we find that a Rule 304(a) finding was not required under the circumstances here. Notwithstanding the fact that the Roseths filed their motion for fees prior to BMI's notice of appeal, this court has recognized a distinction between a claim for fees which is brought as part of a principal action and a claim made after the principal action has been decided. (Hise v. Hull (1983), 116 Ill.App.3d 681, 72 Ill.Dec. 247, 452 N.E.2d 372.) In the latter situation, like the situation here, a Rule 304(a) finding is not required. The filing of a motion for attorney fees after a judgment in the principal action is an incidental or collateral matter; it is not a motion attacking the judgment and therefore does not affect the judgment appealed from nor nullify an earlier notice of appeal. (Town of Libertyville v. Bank of Waukegan (1987), 152 Ill.App.3d 1066, 105 Ill.Dec. 787, 504 N.E.2d 1305.) In the present case the Roseths' request for attorney fees was not made a part of the principal action, it was not a matter in controversy, and it cannot be deemed to have been "pending" or at issue at the time BMI filed its notice of appeal; the motion for fees was filed after judgment in the principal action. Accordingly, a Rule 304(a) finding was not required and this appeal is properly before us.

We next address BMI's argument that the trial court erred in finding that the Roseths' notice to BMI was reasonably timely and in granting Curtin summary judgment. Specifically, BMI contends that "the only reasonable inference from the facts and circumstances is that there were things which should have indicated to ROSETH that there might be a claim under the policy and that his failure to give notice until more than two years following the occurrence is 'late notice' as a matter of law."

Whether an insured gave notice to the insurer within a reasonable time is generally a question of fact (Higgins v. Midland Casualty Co. (1917), 281 Ill. 431, 118 N.E. 11), but, where the facts are undisputed, the question of the sufficiency of notice becomes a question of law (INA Insurance Co. v. City of Chicago (1978), 62 Ill.App.3d 80, 19 Ill.Dec. 519, 379 N.E.2d 34), and summary judgment is proper where no fair-minded person could draw different inferences from those facts (Ding v. Kraemer (1978), 59 Ill.App.3d 1042, 17 Ill.Dec. 267, 376 N.E.2d 266).

Here, BMI contends that the Roseths should have notified it of a claim immediately after the shooting incident. The gist of BMI's argument is that based on the Roseths' continuous contact with Curtin and knowledge of the seriousness of his injury and the fact that he was unemployed at the time, as well as their alleged sophisticated background (Louis is a graduate of Northwestern University Business School and a marketing consultant and Rosemarie is a college graduate and has done social work and accounting), they should have been put on notice of the possibility of a claim by Curtin against them. The Roseths assert that they had no reason to believe a claim would be filed against them in fact because of their close relationship to Curtin and their belief that their homeowner's policy would not cover injuries to others outside their home. They further contend that they...