Sims v. Sneed

• Decision Date: 26 December 1969
• Docket Number: Gen. No. 69--29
• Citation: Sims v. Sneed, 254 N.E.2d 316, 118 Ill.App.2d 294 (Ill. App. 1969)
• Parties: Velma SIMS, Plaintiff-Appellant, v. Robert D. SNEED, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 316

254 N.E.2d 316

118 Ill.App.2d 294

Velma SIMS, Plaintiff-Appellant, v. Robert D. SNEED, Defendant-Appellee.

Gen. No. 69--29.

Appellate Court of Illinois, Fifth District.

Dec. 26, 1969.

Leonard J. Dunn, West Frankfort, Frank Bonan, McLeansboro, for plaintiff-appellant.

Conger & Elliott, Carmi, for defendant-appellee; Ivan A. Elliott, Jr., Carmi, of counsel.

PER CURIAM.

Plaintiff filed a complaint against the defendant for personal injuries sustained in an automobile collision. Defendant was insured by Country Mutual Insurance Company. Plaintiff filed a motion for leave to add the insurance company as an additional party defendant alleging that the insurer had 'so completely taken over the defense of the above action and has so extensively injected itself into this action, that a complete and fair determination of the controversy cannot be had without making said corporation a party defendant herein.' In support of the motion plaintiff presented uncontradicted testimony to the effect that a claims adjuster for Sneed's insurance company had talked to two witnesses in the case and had told them if the plaintiff got what she was claiming, the defendant would be paying for the rest of his life. He also suggested to them that in view of the time that had passed, they could forget hearing the defendant say that it was all his fault. The court denied the motion and entered an order with an express finding that there is no just reason for delaying enforcement or appeal of this order. The plaintiff appeals.

The only issus is whether plaintiff can join defendant's insurer as a co-defendant before there is a determination of defendant's liability.

Plaintiff admits that under existing Illinois law a liability insurance carrier cannot be joined in a suit against the assured. However, she argues persuasively that under present day circumstances this rule should be changed, citing as her principal authority the case of Bussey v. Shingleton, 211 So.2d 593, where the Florida Court of Appeals said at page 596:

'The insurance company, by the terms of its policy has placed itself in the position that it has the Right to control litigation against its insured, if there is a Possibility, mo matter how slight, of said insurance company incurring any liability as a result of said litigation, and by the same contract of insurance has Obligated itself to defend that litigation, no matter how frivolous. Therefore, if the insurance company by the very nature of its contract of insurance has injected itself into the litigation as a real party in interest, then it should not be heard to deny the right of the plaintiff to point this out in a complaint for damages against an insured where it is known that such insurance policy does in fact exist.

We feel that today there is a difference in the insurance required, calling for a different view from that heretofore, held by our courts. We feel it is time that our courts adopt a construction of the Rule to conform to that which is necessary to see the carrying out of justice. We must remember, there is no statutory law prohibiting the making of the insurer a defendant. It is case law and we may by case law change the rule to mete out justice. Such liability policies, as the one in this case is admitted to be, in view of the mandatory statutorial requirements for liability insurance in minimum specified amounts, and the demand therefor by public policy, and the injection of the insurance company as an interested party, by the policy itself, we think should be construed as quasi-third party beneficiary contracts, thereby giving the...