National Bank of Bloomington v. Winstead Excavating of Bloomington
| Decision Date | 30 March 1981 |
| Docket Number | No. 16545,16545 |
| Citation | 419 N.E.2d 522,50 Ill.Dec. 414,94 Ill.App.3d 839 |
| Parties | , 50 Ill.Dec. 414 The NATIONAL BANK OF BLOOMINGTON, as special administrator of the estate of Leo Peterson, Plaintiff, v. WINSTEAD EXCAVATING OF BLOOMINGTON, a/k/a Bob Winstead Excavating, Defendant- Third Party-Plaintiff-Appellee, v. UNITED FIRE & CASUALTY COMPANY, Third Party-Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Thomas M. Barger, III, Livingston, Barger, Brandt, Slater & Schroeder, Bloomington, for United Fire and Cas.
Mike McElvain, Bloomington, for Winstead Excavating.
Third party-defendant, United Fire & Casualty Company (United) appeals from a declaratory judgment entered against it and in favor of defendant-third party-plaintiff, Winstead Excavating of Bloomington (Winstead Excavating), in the circuit court of McLean County on July 11, 1980. The judgment required United to defend Winstead Excavating in the original case brought against Winstead Excavating by plaintiff, National Bank of Bloomington as administrator of Leo Peterson (Peterson) and, subject to policy limits, to pay any judgment obtained against it. We have jurisdiction because of the trial court's finding pursuant to Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)). We reverse.
The case was tried upon an agreed statement of facts and the agreed consideration of the discovery depositions of three witnesses. Prior to June 19, 1975, United issued a policy of liability insurance to Winstead Excavating. The policy was in force on that date when the incident giving rise to the original suit allegedly took place. Winstead Excavating did not inform United of the incident until June 29, 1977, when a copy of a complaint served upon Winstead Excavating was taken to United's agent, Gerald Wilson. The complaint had been served on Winstead Excavating on June 20, 1977.
United refused Winstead Excavating's demand that it assume defense of the original case. United has continuously maintained that it was not required to tender the defense because, under the terms of the insurance policy, Winstead Excavating's failure to timely notify it of the incident relieved it of that obligation. The terms relied upon by United stated:
The issue in this case is whether the trial court's determination that Winstead Excavating gave notice to United of the incident giving rise to plaintiff's suit "as soon as practicable" was erroneous as a matter of law. We conclude it was.
One of the depositions considered by the trial court was that of Melvin Probus in which he stated the following to have occurred on June 19, 1975. He was hauling dirt for a road construction project on Route 66. He drove the truck along an access road to the highway and, after making a complete stop, pulled onto the highway in the right driving lane. His emergency flashers were lit. Probus watched the rear view mirror and saw a truck approaching him from behind in the same lane. The truck "whipped up" behind him and flipped over in the median as it passed him on the left. Probus and other drivers stopped to see if the occupant of the damaged vehicle was injured. Probus spoke with a state police officer and was told he could leave. Probus stated that on the day of the incident he reported what happened to Robert Winstead, owner and operator of Winstead Excavating.
The court also considered the deposition of Robert Winstead in which he admitted that Probus had told him about the incident on the day it occurred. Winstead indicated that Probus explained the incident to him in substantially the same manner as Probus related in his deposition. Winstead testified that he did not then report the incident to his insurer because he did not feel he or his vehicle were involved in the episode whereby plaintiff's vehicle was damaged. Winstead further stated that he forgot about the incident until four or five months later when he received a letter from somebody which indicated that he should contact his insurance carrier but he still did not do so because he did not believe he was involved.
Winstead also admitted receiving a second letter from Peterson's collision insurance carrier which was a notice of subrogation lien and advised Winstead to contact his insurance carrier. A copy of the form which would have been sent then by Peterson's carrier to Winstead was admitted by stipulation. The record does not indicate upon what date that notice was sent to Winstead but the parties agree that it occurred approximately 16 months after the accident. Winstead testified that upon receipt of the latest notice he believed that based upon what Probus had told him, he still did not think he was involved in the incident in which plaintiff's vehicle was damaged and, accordingly, still did not report the incident to United.
The deposition of Frederick Thomas, Jr., the driver of Peterson's vehicle, was also before the court. It contained testimony by Thomas that he was driving along the highway, glanced for not more than two or three seconds at the dials and gauges upon his dashboard, and then looked up and saw the Winstead truck 100 feet ahead of him. Thomas maintained that he then swerved...
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