{
  "id": 2470018,
  "name": "Jessie Lee Stamps, a minor, by Mary L. Stamps, his mother and next friend, Plaintiff-Appellee, v. Arthur L. Caldwell, Defendant-(Coronet Insurance Company, Citation-Defendant-Appellant.)",
  "name_abbreviation": "Stamps v. Caldwell",
  "decision_date": "1971-07-06",
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    "judges": [],
    "parties": [
      "Jessie Lee Stamps, a minor, by Mary L. Stamps, his mother and next friend, Plaintiff-Appellee, v. Arthur L. Caldwell, Defendant\u2014(Coronet Insurance Company, Citation-Defendant-Appellant.)"
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE BURKE\ndelivered the opinion of the court:\nThis was a citation proceeding instituted on behalf of minor plaintiff, Jessie Lee Stamps (hereinafter \"plaintiff\u201d), against citation-defendant Coronet Insurance Company (hereinafter \"Coronet\u201d) to collect the .amount of a default judgment entered for plaintiff and against defendant, Arthur L. Caldwell, Coronet\u2019s insured (hereinafter \"Caldwell\u201d), 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 iCoronet failed to prove lack of cooperation on Caldwell\u2019s 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 Insur.ance Code for reasonable attorneys\u2019 fees, from which order plaintiff has filed a cross-appeal. Ill. Rev. Stat. 1969, ch. 73, par. 767.\nOn 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.\nOn July 14, 1964, Caldwell notified Coronet that his automobile had injured plaintiff, a pedestrian, on July 13, 1964, 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 attorneys lien from plaintiffs attorney, and five days later Coronet acknowledged receipt of the notice of lien. In December 1964, an attorney for Coronet requested of the plaintiffs attorney a list of the special damages incurred by plaintiff in the accident, and several telephone conversations followed between the attorneys.\nOn 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.\nOn 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, plaintiffs 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\u2019s 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.\nThis 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 faffing to notify Coronet of the service of the summons upon him in the personal injmy 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 tire personal injury action; that upon locating Caldwell and interviewing him on July 22, 1968, Coronet\u2019s investigator was told by CaldweH that he had not been served with a \u201csubpoena\u201d in the personal injury action; that an effort was made by Coronet\u2019s investigator to elicit more detailed information from CaldweH at a later date, and in the presence of a court reporter, which was rendered fruitless by CaldweU\u2019s 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\u2019s lack of cooperation.\nAt 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\u2019s questioning that he had not been served with a \u201csubpoena\u201d 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 CaldweH, the latter reacted in a heated manner and ordered the investigator and the accompanying court reporter off his premises.\nCaldwell testified at trial that he did in fact receive a summons in the personal injury action and that he hand-delivered the summons to Coronet\u2019s offices in Chicago, as he did with the written accident report immediately following the accident. The witness further testified that the investigator who interviewed him asked him if he had received a summons in the personal injury action, to which question the witness stated he replied in the affirmative and that he hand-delivered it to Coronet. CaldweH testified that he had been involved with the courts in the past and that he knew the difference between a \u201csummons\u201d and a \u201csubpoena.\u201d He further stated that he did not recall being asked by the investigator whether he had been served with a \u201csubpoena\u201d in the personal injury action.\nThe trial court found that Coronet failed to prove that it had not been served with a copy of the summons, that Caldwell responded to all questions asked of him by the investigator at the initial interview, and that consequently Coronet faffed to prove lack of cooperation on CaldweH\u2019s part. The court further held that on the evidence presented, there was nothing to show that Coronet\u2019s refusal to pay the judgment was vexatious and that therefore plaintiff was not entitled to attorneys\u2019 fees as requested.\nCoronet contends that Caldwell\u2019s lack of cooperation in the conduct of the personal injury suit was a breach of the terms of the policy of insurance, entitling Coronet to disclaim liability under the policy, and that the trial court erred in holding that the evidence did not show a lack of cooperation on Caldwell\u2019s part. From a review of the entire record we are of the opinion that there was no breach of the policy terms by Caldwell such as would entitle Coronet to disclaim liability under the policy, and further that Coronet\u2019s present position is the result of its mishandling of its file in this matter.\nThe record shows that Caldwell reported the injuries to plaintiff to Coronet immediately after the accident and that Coronet opened a file in the matter in its usual course of business. Contained in the Caldwell accident report was the fact that plaintiff was a minor, nine years of age. Correspondence between attorneys for Coronet and plaintiff continued over the latter part of 1964, and the personal injury action was filed in September 1965, with personal service being obtained upon Caldwell in January 1966. Caldwell testified that he was served with summons in the personal injury action and that he immediately hand-delivered the summons to Coronet\u2019s offices in Chicago after such service was before the trial court in this proceeding. Coronet, on the other hand, attempted to show that Caldwell failed to deliver the summons to it by the fact that the summons was not in their file, and by means of such negative evidence, Coronet sought to prove lack of cooperation on Caldwell\u2019s part. However, the trial court gave little credence to the integrity of Coronet\u2019s file in this matter, stating that the May 15th notice of the prove-up had been misplaced by Coronet and that other papers were not in the file. The trial court further stated that Caldwell appeared to be the type of individual who would hand-deliver a paper, as was evidenced by his hand-delivery to Coronet of the accident report. The evidence of Coronet failed to show lack of cooperation on Caldwell\u2019s part in informing Coronet of the pendency of the personal injury action such as to warrant a disclaimer of responsibility under the policy of insurance by Coronet. See Gregory v. Highway Insurance Co., 24 Ill.App.2d 285.\nCaldwell\u2019s alleged refusal to cooperate with Coronet\u2019s investigator after the default judgment had been entered was not only denied by Caldwell at trial, but he testified that he could not recall if he had been asked if he had been served with a \u201csubpoena\u201d in the personal injury action. The trial court noted that a person who was familiar with the courts, as Caldwell testified he was, knows the difference between a \u201csummons\u201d and a \u201csubpoena.\u201d The court also noted that the Coronet investigator \u201cguardedly or otherwise avoided the use of the word summons.\u2019 \u201d What was in fact said by Caldwell and by the investigator at the two interviews was a matter for the determination by the trier of fact. Thus, whether at the first interview Caldwell stated that he was not served with a \u201csubpoena\u201d in the personal injury action could have in no way aided Coronet in seeking to set aside the default judgment by way of a Section 72 petition, as it contends, and whether Caldwell refused to answer further questioning in that regard at the second interview could have in no way frustrated Coronet\u2019s efforts to open up the default judgment by that means.\nFrom the record it is apparent that Coronet\u2019s position is the result of mishandling of its own file in this regard. Initially, Coronet closed the file two years after the date of the accident, although it had actual notice from the accident report that plaintiff was only nine years of age. It was further remiss in handling the matter when it misplaced the May 15th notice of the prove-up which it concededly received from plaintiff\u2019s attorney and when it failed to appear at the prove-up to protect its interests in the matter. Coronet cannot be allowed to place the burden of its own mistakes, classified by it as \u201cmischance and inadvertence,\u201d upon its insured.\nThe cases cited by Coronet in support of its position are distinguishable on their facts from the case at bar. See Gallaway v. Shied, 73 Ill.App.2d 116; Schneider v. Autoist Mutual Insurance Co., 346 Ill. 137; Allstate Insurance Co. v. Keller, 17 Ill.App.2d 44.\nAs to the cross-appeal filed by plaintiff from the denial of the motion for attorneys\u2019 fees, it need only be said that Section 155 of the Illinois Insurance Code, pursuant to which the motion was filed, is designed to protect insured parties who are forced to expend attorneys\u2019 fees where the insurer refuses to pay under the terms of the policy or has sued to cancel the policy, and where such action on the part of the insurer was vexatious and without reasonable cause. The statute does not extend to third parties, such as plaintiff, and plaintiff cites no case law in support of his position. See Keepes v. Doctors Convalescent Center, Inc., 89 Ill.App. 2d 36; Ill Rev. Stat. 1969, ch. 73, par. 767.\nFor these reasons the judgment for plaintiff and against Coronet, and the order denying the plaintiff\u2019s motion for attorneys\u2019 fees are affirmed.\nJudgment and order affirmed.\nLYONS and GOLDBERG, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE BURKE"
      }
    ],
    "attorneys": [
      "Haft, Shapiro & Haft, of Chicago, (Morris A. Haft and Joshua Landau, of counsel,) for appellant.",
      "Arnstein & Levin, of Chicago, (Lawrence L. Kotin, of counsel,) for appellee."
    ],
    "corrections": "",
    "head_matter": "Jessie Lee Stamps, a minor, by Mary L. Stamps, his mother and next friend, Plaintiff-Appellee, v. Arthur L. Caldwell, Defendant\u2014(Coronet Insurance Company, Citation-Defendant-Appellant.)\n(No. 54724;\nFirst District \u2014\nJuly 6, 1971.\nHaft, Shapiro & Haft, of Chicago, (Morris A. Haft and Joshua Landau, of counsel,) for appellant.\nArnstein & Levin, of Chicago, (Lawrence L. Kotin, of counsel,) for appellee."
  },
  "file_name": "0524-01",
  "first_page_order": 546,
  "last_page_order": 550
}