Fourniotis v. Woodward

• Decision Date: 16 September 1965
• Docket Number: Gen. No. 49842
• Citation: 211 N.E.2d 571,63 Ill.App.2d 79
• Parties: Louia FOURNIOTIS, Plaintiff-Appellee, v. Andrew WOODWARD and Ardella Willett, Defendants-Appellants. Appeal of GIBRALTAR MUTUAL CASUALTY COMPANY, Garnishee, Defendant.
• Court: United States Appellate Court of Illinois

Page 571

211 N.E.2d 571

63 Ill.App.2d 79

Louia FOURNIOTIS, Plaintiff-Appellee, v. Andrew WOODWARD and Ardella Willett, Defendants-Appellants Appeal of GIBRALTAR MUTUAL CASUALTY COMPANY, Garnishee, Defendant.

Gen. No. 49842.

Appellate Court of Illinois, First District, Third Division.

Sept. 16, 1965.

Rehearing Denied Oct. 29, 1965.

Anthony R. Lazzara, Chicago, Barry H. Greenburg, Chicago, of counsel, for Garnishee defendant-appellant Gibraltar Mut. Cas. Co.

John G. Phillips, Chicago, Sidney Z. Karasik, Chicago, of counsel, for appellee.

SULLIVAN, Justice.

Plaintiff obtained a default judgment for $7500.00 and costs against defendants for personal injuries arising out of an automobile accident. Plaintiff thereupon instituted garnishment proceedings against defendants' insurance carrier in an effort to collect the judgment. After the accident and with notice of plaintiff's claim, the insurance company, garnishee defendant herein, filed a declaratory judgment action asking the court to declare the policy of insurance between it and defendants void. The plaintiff herein was neither notified of nor made a party to the declaratory judgment proceeding. The insured defendants, who were parties, did not appear or defend and the insurance carrier obtained a declaratory judgment against them by default. The declaratory judgment declared that the carrier was not obligated to defend its insured from lawsuits nor obliged to pay judgments rendered against the defendants. In the garnishment proceeding against the insurance carrier, the garnishee sought to interpose the declaratory judgment as a bar to plaintiff's efforts to collect on the insurance. At the hearing in the garnishment proceeding the court prodded the garnishee to offer evidence but counsel for the garnishee merely said, 'There is no evidence to present.' Judgment was thereupon entered against Gibraltar Mutual Casualty Company, garnishee.

The sole question raised on this appeal is whether in an action to have a public liability insurance policy declared void, after an injury has occurred, may the insurance carrier join only the insured, or must the insurance carrier join also the injured party in order to bind him by a judgment therein. The garnishee relies on the case of Western States Mutual Automobile Insurance Co. v. May, 18 Ill.App.2d 442, 152 N.E.2d 608 (1958). There it was held that the injured persons were not necessary parties in an action by the insurance company to set aside the defendant tortfeasor's policy of insurance. However, that case has been overruled by the case of Sobina v. Busby and Safeco Insurance Company of America, (1st Dist.), 210 N.E.2d 769 in an opinion filed by this court on March 18, 1965. That decision is dispositive of the instant case.

The court in Sobina, supra, said: 'Reverting to Western States v. May, supra, in essence the reasoning there was that fraud vitiates a contract ab initio, as the hornbooks all taught, and hence the personal injury plaintiffs could not acquire anything under it. In that case we distinguished between suits seeking to void a policy of insurance and suits to determine the extent of coverage. It is a distinction without merit insofar as the rights of p...