Stamps v. Caldwell

• Decision Date: 06 July 1971
• Docket Number: Gen. No. 54724
• Citation: Stamps v. Caldwell, 133 Ill.App.2d 524, 273 N.E.2d 489 (Ill. App. 1971)
• Parties: Jessie Lee STAMPS, a minor, by Mary L. Stamps, his mother and next friend, Plaintiff-Appellee, v. Arthur L. CALDWELL, Defendant, and Coronet Insurance Company, Citation-Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 489

273 N.E.2d 489

133 Ill.App.2d 524

Jessie Lee STAMPS, a minor, by Mary L. Stamps, his mother and next friend, Plaintiff-Appellee, v. Arthur L. CALDWELL, Defendant and Coronet Insurance Company, Citation-Defendant-Appellant.

Gen. No. 54724.

Appellate Court of Illinois, First District, First Division.

July 6, 1971.

Haft, Shapiro & Haft, Chicago, for citation-defendant-appellant; Morris A. Haft, and Joshua Landau, Chicago, of counsel.

Lawrence L. Kotin and Arnstein & Levin, Chicago, for plaintiff-appellee; Lawrence L. Kotin, Chicago, of counsel.

BURKE, Presiding Justice.

This was a citation proceeding instituted on behalf of minor plaintiff, Jessie Lee Stamps (hereinafter 'plaintiff'), against citation-defendant Coronet Insurance Company (hereinafter 'Coronet') to collect the amount of a default judgment entered for plaintiff and against defendant, Arthur L. Caldwell, Coronet's insured (hereinafter 'Caldwell'), for personal injuries sustained by plaintiff in an automobile accident. Coronet interposed the defense of lack of cooperation on the part of Caldwell in violation of the terms of the policy of insurance. The trial court found that Coronet failed to prove lack of cooperation on Caldwell's part and entered judgment for plaintiff and against Coronet, for the use and benefit of Caldwell, in the amount of $3,000 plus costs of the action, from which judgment Coronet appeals. The trial court also entered an order denying a motion filed by plaintiff pursuant to Section 155 of the Illinois Insurance Code for reasonable attorneys' fees, from which order plaintiff has filed a cross-appeal. (Ill.Rev.Stat.1969, Chap. 73, Para. 767.)

On April 1, 1964 Coronet issued an automobile insurance policy covering Caldwell which contained provisions, Inter alia, that the insured shall cooperate with the insurer in all matters relating to accidents and legal actions instituted incident thereto, and that the insurer shall not be liable under the policy where there has not been full compliance by the insured with the terms of the policy.

On July 14, 1964 Caldwell notified Coronet that his automobile had injured plaintiff, a pedestrian, on July 13, 1965, and Coronet opened a file in the matter in the usual course of its business. The matter was assigned by Coronet to an adjuster and within several days a police accident report was obtained from the Chicago Police Department. On October 13, 1964 Coronet received a notice of attorney's lien from plaintiff's attorney, and five days later Coronet acknowledged receipt of the notice of lien. In December 1964 an attorney for Coronet requested of the plaintiff's attorney a list of the special damages incurred by plaintiff in the accident, and several telephone conversations followed between the attorneys.

On September 9, 1965 a personal injury action was filed by plaintiff against Caldwell, and the record reveals that personal service was obtained on Caldwell on January 26, 1966. It appears that in June 1966 a memorandum was dictated in the offices of Coronet which diarized the file to the end of December 1966. It further appears that on December 30, 1966 Coronet closed its file in this matter.

On May 15, 1968 the personal injury action was called for trial. No answer having been filed to the complaint and no party appearing on behalf of Caldwell on that date, the case was set for a prove-up on May 29, 1968. On the day the matter had been set for prove-up, plaintiff's attorney sent a letter by registered mail return receipt requested, to Coronet advising the latter of the pending action and of its anticipated disposition on May 29th, together with information concerning the time and the courtroom number of the prove-up. Receipt of the letter was acknowledged by Coronet, but apparently the letter was placed into the closed file or otherwise misplaced, and Coronet took no action on May 29th. The matter was proved up on that date and judgment was entered in the amount of $3,000 for plaintiff and against Caldwell. On July 1, 1968 plaintiff's attorney communicated by letter to Coronet that a judgment had been entered and requested payment from Coronet of the amount of the judgment, which Coronet failed to do.

This proceeding was instituted against Coronet on September 17, 1968. Coronet subsequently filed its answer, alleging that Caldwell had breached the terms of the policy of insurance by failing to notify Coronet of the service of the summons upon him in the personal injury action at the time of service; that subsequent to the time that Coronet learned of the default judgment against Caldwell, Coronet attempted to elicit information from Caldwell in an effort to determine whether he was in fact served with summons in the personal injury action; that upon locating Caldwell and interviewing him on July 22, 1968 Coronet's investigator was told by Caldwell that he had not been served with a 'subpoena' in the personal injury action; that an effort was made by Coronet's investigator to elicit more detailed information from Caldwell at a later date, and in the presence of a court reporter, which was rendered fruitless by Caldwell's hostile reaction and his lack of cooperation and which was also a violation of the terms of the policy of insurance; and that Coronet was not obliged to honor the obligations under the policy because of Caldwell's lack of cooperation.

At the trial of the matter it was brought out that Coronet, upon learning of the default judgment against Caldwell, retained an investigator to locate and interview Caldwell. Evidence was adduced that at the first interview on July 22, 1968, Caldwell stated in response to the investigator's questioning that he had not been served with a 'subpoena' in the personal injury action; there was also evidence that when the investigator at a later date attempted to secure additional information concerning the service of papers upon Caldwell, the...