Shapiro v. DiGuilio, Gen. No. 51067

• Court: United States Appellate Court of Illinois
• Writing for the Court: CRAVEN; SMITH, P.J., and TRAPP
• Citation: 95 Ill.App.2d 184,237 N.E.2d 771
• Decision Date: 01 May 1968
• Docket Number: Gen. No. 51067
• Parties: George L. SHAPIRO and Angelo A. Clambrone, Plaintiffs-Appellees, v. Norman DiGUILIO, American Indemnity Company and Idlewild Country Club, an Illinois corporation, Defendants. Norman DiGUILIO, Cross-Plaintiff-Appellee, v. AMERICAN INDEMNITY COMPANY and Idlewild Country Club, an Illinois corporation, Cross-Defendants. Appeal of AMERICAN INDEMNITY COMPANY, Defendant-Appellant and Cross-Defendant-Appellant.

Page 771

237 N.E.2d 771 95 Ill.App.2d 184 George L. SHAPIRO and Angelo A. Clambrone, Plaintiffs-Appellees,
v.
Norman DiGUILIO, American Indemnity Company and Idlewild
Country Club, an Illinois corporation, Defendants.
Norman DiGUILIO, Cross-Plaintiff-Appellee,
v.
AMERICAN INDEMNITY COMPANY and Idlewild Country Club, an
Illinois corporation, Cross-Defendants.
Appeal of AMERICAN INDEMNITY COMPANY, Defendant-Appellant
and Cross-Defendant-Appellant. Gen. No. 51067. Appellate Court of Illinois, First District. May 1, 1968.

[95 Ill.App.2d 185]

Page 772

Berchem, Schwantes & Thuma, Michael J. Thuma, Chicago, James O. Latturner, Chicago, of counsel, for defendant-appellant and cross-defendant-appellant.

Angelo A. Ciambrone, Chicago, Heights, George L. Shapiro, Chicago, pro se.

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

CRAVEN, Justice.

This is an appeal by American Indemnity Company from a summary judgment entered against it in the circuit court of Cook County in favor of Norman DiGuilio for $72,500, costs and interest, ordering DiGuilio to pay to George L. Shapiro the sum of $500 as guardian ad litem and to Angelo A. Ciambrone the sum of $1500 as attorney for DiGuilio. The judgment also found that America Indemnity was obligated to defend Raymond Lambotte in the prior underlying personal injury suit brought against him by DiGuilio in which the judgment for $75,500, costs and itnerest was entered in favor of DiGuilio.

Appeal also is taken by American Indemnity from an order of the trial court striking portions of its answer asserting[95 Ill.App.2d 186] an affirmative defense of collusion in the personal injury action which relieved it of the obligation to defend, and from the liability of the judgment obtained.

This action arose from a prior underlying action brought in the city court of Chicago Heights against Raymond Lambotte and Idlewild Country Club by Norman DiGuilio, a caddy at the Idlewild Country Club golf course, for loss and removal of his eye, allegedly caused by an apple thrown by Raymond Lambotte, another caddy at the club.

Page 773

Both DiGuilio and Lambotte were minors, aged sixteen years. At the time of the occurrence, Idlewild was insured by a liability policy of American Indemnity Company. American Indemnity provided defense on behalf of Idlewild but refused to defend Lambotte, contending that its policy did not cover club employees in tort actions against the employees.

In the personal injury action, the court appointed Shapiro as guardian ad litem for the minor defendant, Lambotte, and the guardian ad litem retained Ciambrone as attorney.

Idlewild filed an answer and an affirmative defense that plaintiff DiGuilio was a coemployee of defendant, Lambotte, and the action was barred by the Workmen's Compensation Act. The guardian ad litem filed an answer but did not raise a similar defense. He tendered Lambotte's defense to American Indemnity who refused it.

Thereafter, the personal injury cause was transferred to the circuit court of Cook County. Motion for summary judgment was made on behalf of the Country Club. Motion by plaintiff was made for summary judgment on the issue of liability of Lambotte. The motion judge denied summary judgment for the Country Club on the ground that the relationship of plaintiff and defendant presented a disputed question of fact. No counter-affidavit or oral argument was presented in opposition to plaintiff's[95 Ill.App.2d 187] motion for summary judgment. The court then entered judgment against Lambotte on the issue of liability and reserved only the issue of damages.

On the trial call, Idlewild announced ready for trial but plaintiff's counsel stated that he was not ready to proceed as to Idlewild. The assignment judge, on trial call, then dismissed the case against Idlewild for want of prosecution.

Later the issue of damages as to Lambotte was assigned for trial. The court heard evidence and entered judgment for DiGuilio against Lambotte for $72,500. This judgment contained a finding that DiGuilio was an independent contractor with the Country Club and not an employee, but that Lambotte was an employee at the time of the occurrence. The judgment also directed that the guardian ad litem be paid $500 and his attorney $1500 for their services. No appeal was taken from this order and judgment entered January 14, 1965.

Thereafter, Shapiro, guardian ad litem for the minor defendant, Lambotte, and his attorney, Ciambrone, filed this action in chancery to impose a trust or lien upon the proceeds of the insurance policy of American Indemnity and for an order on the company to pay, on behalf of Lambotte, to Diguilio the judgment of $72,500, and out of it the guardian ad litem fee of $500 and his attorney's fee of $1500. This suit also sought an injunction restraining DiGuilio from collecting his judgment until plaintiff's rights were declared, and to impose a lien on the insurance policy and declare that American Indemnity Company was obligated to defend Lambotte in the personal injury suit and had breached its duties by failure to do so.

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