Hardware Dealers Mut. Fire Ins. Co. v. Ross
| Decision Date | 25 September 1970 |
| Docket Number | Gen. No. 69--116 |
| Citation | 129 Ill.App.2d 217,262 N.E.2d 618 |
| Parties | HARDWARE DEALERS MUTUAL FIRE INSURANCE COMPANY, a corporation, Plaintiff-Appellant, v. William ROSS, Executor of the Will of Eunice Ross, deceased, Defendant- Appellee. |
| Court | United States Appellate Court of Illinois |
Dennis Fox, Moline, for plaintiff-appellant.
Edward Eagle, Rock Island, Andrew Kopp, Moline, for defendant-appellee.
This is a suit by plaintiff insurance company to recover from the defendant $4,000 which it had paid to the defendant by virtue of a judgment the defendant had secured against the plaintiff in another suit which had been instituted to recover under the terms of a medical expense provision of an automobile insurance policy.
On April 19, 1967, Eunice Ross was riding as a guest in a motor vehicle owned and operated by Frances Neely when it was involved in a collision with another automobile driven by Edna Bowman. Both drivers were killed in the collision. Eunice Ross was seriously injured and died from her injuries on May 9, 1967. Her medical and funeral expenses were $4,296.87.
Neely had an insurance policy with Hardware Dealers which covered any medical or funeral expenses incurred by anyone riding in her car up to $4,000.00 Also Eunice Ross the guest had an insurance policy with Ohio Casualty which covered her for medical and funeral expenses up to $1,000.00. Said policy provided that such coverage was excess over and above any other applicable insurance. Both of these companies refused to pay under the medical expense provisions of their policies.
On March 4, 1968, William Ross, Executor filed a suit against the Executor of the estate of Edna Bowman for the wrongful death of Eunice Ross.
On April 16, 1968, William Ross, Executor filed a suit against Hardware Dealers and Ohio Casualty to recover under the medical expense provisions of their respective policies.
On May 20, 1968, Hardware Dealers filed an answer and denied that Eunice Ross had incurred hospital, medical and funeral expenses in the amount of $4,296.87 and denied that at the time of the accident, Frances Neely, had an insurance policy with Hardware Dealers providing medical expense coverage up to $4,000.00.
On May 29, 1968, after a hearing before the court a judgment was entered in the amount of $19,296 in the wrongful death action brought by William Ross, Executor, against the estate of Edna Bowman, deceased.
On June 24, 1968, William Ross, Executor, in consideration of $8,250 executed an agreement not to proceed further in the wrongful death case by way of execution, garnishment or otherwise against either the administrator of Edna Bowman's estate or the insurer of Edna Bowman whose policy limits were $10,000.
Subsequent to the above settlement of the wrongful death judgment, counsel in the suit by William Ross as Executor against the two insurance companies entered into a stipulation that Eunice Ross had incurred hospital, nursing, medical and funeral expenses in the amount of $4,296.87 and that at the time of the collision she had a policy of insurance with Ohio Casualty which afforded medical expense coverage of $1,000 and that the driver of the vehicle in which she was riding, Frances Neely, had a policy of insurance with Hardware Dealers which afforded medical expense coverage for Eunice Ross of $4,000. On September 4, 1968, the court on the basis of this stipulation and the pleadings and the provisions of the insurance policies entered judgment in favor of William Ross Executor and against Hardware Dealers in the amount of $4,000 and against Ohio Casualty in the amount of $296.87. No appeal was taken from this judgment order.
On the same day, September 4, 1968, plaintiff herein notified the attorneys for the defendant herein that in the event of payment under the medical expense coverage provision of the policy the company 'hereby puts you on notice' of its subrogation rights to any right of recovery Eunice Ross may have against any third person and of the company's lien to the extent of any payments it may make under said coverage on any recoveries by way of settlement or judgment that may be recovered from any third person.
Again, on October 3, 1968, the insurance company, plaintiff herein, in a letter accompanying the draft in the amount of $4,000 representing payment of the judgment under the medical expense provision suit above referred to, put the defendant on notice of the subrogation provisions of the policy.
On December 13, 1968, the attorney for the defendant wrote the plaintiff and advised it that in his opinion he did not feel that the plaintiff was entitled to be subrogated under the provisions of its policy.
On January 6, 1969, the plaintiff herein filed this suit alleging that at the time of the accident Frances Neely had a policy of insurance with the plaintiff company which afforded medical pay coverage up to $4,000; that the plaintiff paid the defendant $4,000 pursuant to said coverage; that said policy had a subrogation provision in it with regard to payments under the medical pay coverage; that the defendant brought a wrongful death action against the estate of the driver of the other automobile involved and by way of settlement thereof received in execes of $4,000; that pursuant to said settlement the defendant gave a release to the defendant in the wrongful death action; that the giving of the release constituted a breach of the subrogation provisions of plaintiff's policy and prejudiced the subrogation rights of the plaintiff. The complaint then prayed for judgment against the defendant in the amount of $4,000.
The subrogation provisions of plaintiff's policy of insurance relating to payments under the medical expense coverage of the policy states:
No explanation was offered as to why the issue presented in this case was not raised as a defense when Ross sued Hardware Dealers to recover the medical expenses. Also the defense of res judicata has not been pleaded by Ross in this case. The two cases involve the same parties and it would appear that the issue raised in this case could have been litigated as a defense in the prior case. In such event the doctrine of res judicata would prevent the relitigating of the question at this time. Schoenbrod v. Rosenthal, 36 Ill.App.2d 112, 183 N.E.2d 188; Jones v. Reuss, 47 Ill.App.2d 212, 197 N.E.2d 709; 23 I.L.P. Judgments § 378; 50 C.J.S. Judgments § 682. However, since the defense of res judicata has not been raised in this case, we must consider it as having been waived. 50 C.J.S. Judgments § 822.
The complaint alleges that defendant settled the wrongful death suit and gave a release to the defendant in that case and that...
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