{ "id": 680657, "name": "LORI J. BLOMQUIST, Plaintiff-Appellee, v. SAMANTHA KENT, Defendant-Appellee (Allied American Insurance Company, Garnishee Defendant-Appellant)", "name_abbreviation": "Blomquist v. Kent", "decision_date": "1994-05-09", "docket_number": "No. 1\u201492\u20141083", "first_page": "331", "last_page": "335", "citations": [ { "type": "official", "cite": "264 Ill. App. 3d 331" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "597 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "232 Ill. App. 3d 358", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498821 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0358-01" ] }, { "cite": "338 N.E.2d 90", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 507", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2874902 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0507-01" ] }, { "cite": "322 N.E.2d 843", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 301", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2702142 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0301-01" ] }, { "cite": "435 N.E.2d 1233", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 496", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3029686 ], "weight": 2, "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0496-01" ] }, { "cite": "344 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 690", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2632927 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0690-01" ] }, { "cite": "603 N.E.2d 760", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "236 Ill. App. 3d 456", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5783543 ], "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/0456-01" ] } ], "analysis": { "cardinality": 463, "char_count": 11258, "ocr_confidence": 0.822, "pagerank": { "raw": 7.455029256888648e-08, "percentile": 0.4447749656447152 }, "sha256": "82b6e0c474ccdbd6022318699361fcbc13e905794d23d59ca17c07473a46a18b", "simhash": "1:9b6a832ac10db94d", "word_count": 1770 }, "last_updated": "2023-07-14T18:49:29.319239+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LORI J. BLOMQUIST, Plaintiff-Appellee, v. SAMANTHA KENT, Defendant-Appellee (Allied American Insurance Company, Garnishee Defendant-Appellant)." ], "opinions": [ { "text": "PRESIDING JUSTICE CAMPBELL\ndelivered the opinion of the court:\nGarnishee defendant-appellant, Allied American Insurance Company (Allied), appeals from the October 3,1991, order of the trial court entering judgment in favor of Samantha Kent, the defendant in a personal injury damage action, for the use of plaintiff, Lori Blomquist, against Allied, for $10,000 plus costs. Allied further appeals from the February 5, 1992, order of the trial court: (1) denying Allied\u2019s motion to compel plaintiff to produce a document for inspection; and (2) denying Allied\u2019s post-trial motion to reconsider. On appeal, Allied contends that: (1) the trial court erred in entering judgment against it, where evidence at the garnishment hearing revealed that Allied never received notice of plaintiff\u2019s lawsuit; (2) the trial court erred in admitting certain hearsay evidence at the hearing; and (3) the trial court erred in denying Allied\u2019s post-trial motion to compel plaintiff to produce evidence admitted during the garnishment hearing.\nThe record contains the following relevant facts. On June 4, 1991, plaintiff filed an \"Affidavit of Garnishment (Non-Wage)\u201d alleging that on April 25, 1991, plaintiff obtained a judgment of $10,000 plus costs and interest against defendant. On July 8, 1991, Allied filed a \"No Funds\u201d answer, along with \"Affirmative Matters,\u201d alleging that defendant failed to comply with a condition of the applicable Allied insurance policy, by failing to forward to Allied every demand, notice, summons or other process, and by failing to provide Allied with actual notice of plaintiff\u2019s complaint.\nA garnishment hearing commenced on October 3, 1991. The record reveals that no court reporter was present at the hearing and that the proceedings were not transcribed. Instead, the parties submitted on appeal a \"Report of Proceedings\u201d which was certified by the trial court on June 26, 1992. In addition, the parties included in the record on appeal an \"Agreed Statement of Facts,\u201d which, subject to a few paragraphs that are not agreed upon, represents the parties\u2019 recollection of the proceedings.\nThe agreed facts are as follows. At the hearing, on October 3, 1991, Allied argued that plaintiff had the burden of proof to establish that Allied was obligated to pay the judgment entered against the defendant. The trial court ruled that the burden of proof was upon Allied. Neither the defendant nor the defendant\u2019s attorney appeared at the hearing.\nAllan Zussman, an adjuster for Allied, testified that Allied had not received any notice of plaintiff\u2019s lawsuit until served with the garnishment action.\nOn cross-examination, Zussman testified that Valerie Makowski, another Allied adjuster, worked on the file extensively, and that the file contained several pieces of correspondence between plaintiff\u2019s counsel and Makowski. Plaintiff\u2019s counsel recalls that Zussman testified that he saw Allied\u2019s file in this matter for the first time to prepare for his testimony on October 3, 1991. Allied\u2019s counsel denies that Zussman ever made such a statement.\nZussman identified an original letter and notice of attorney\u2019s lien from plaintiff\u2019s counsel to defendant dated March 16, 1989. He further testified that Allied received the letter from defendant. Plaintiff\u2019s counsel asked Zussman if the file contained a letter from plaintiff\u2019s counsel to Makowski dated September 11, 1990. Zussman stated that he could find no letter from plaintiff\u2019s counsel to Ma-kowski dated September 11, 1990, and stated that Allied never received the letter.\nPlaintiff\u2019s counsel stated that the September 11, 1990, letter was a letter he had written and mailed on that day to Makowski, along with a copy of the summons and complaint. Plaintiff offered into evidence exhibit 1, a copy of the September 11, 1990, letter. Plaintiff\u2019s counsel was not sworn in as a witness.\nAllied objected to exhibit 1 being received as evidence, arguing that: (1) it was hearsay; (2) no foundation had been laid to authenticate the document; and (3) no foundation had been laid to establish that exhibit 1 was actually sent to Allied. The court overruled these objections and admitted exhibit 1 into evidence.\nPlaintiff\u2019s counsel recalls that thereafter, Allied failed to cross-examine plaintiff\u2019s counsel regarding exhibit 1. Allied\u2019s counsel recalls that she was not given the opportunity to cross-examine plaintiff\u2019s counsel.\nIn subsequent post-trial proceedings, Allied argued that it was deprived of the opportunity to cross-examine plaintiff\u2019s counsel at the October 3, 1991, hearing. At that time, the trial court offered to Allied\u2019s counsel the opportunity to cross-examine plaintiff\u2019s counsel regarding exhibit 1. Allied argued that no evidence had been presented to contradict Zussman\u2019s testimony that defendant never provided any notice to Allied of plaintiff\u2019s lawsuit.\nFollowing arguments, the trial court found that there was sufficient credible evidence to establish that Allied had actual notice of the pending litigation. The trial court then entered judgment in favor of defendant, for the use of plaintiff, and against Allied for $10,000 plus costs and interest.\nOn October 18, 1991, Allied filed a motion to compel the plaintiff to produce the original copy of the alleged letter of September 11, 1990, and also requested leave to file a motion to reconsider the trial court\u2019s order of October 3, 1991.\nOn February 5, 1992, the trial court denied both Allied\u2019s motion to compel and motion to consider.\nAllied filed a timely notice of appeal on March 6, 1992.\nInitially, Allied contends that the trial court erred in entering judgment against it because the evidence at the garnishment hearing revealed that defendant never received notice of plaintiff\u2019s original lawsuit. Allied essentially suggests that the trial court\u2019s decision is contrary to the manifest weight of the evidence.\nA verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings are unreasonable, arbitrary, and not based upon the evidence. Upon review, this court may not reconsider the evidence or reassess the witnesses\u2019 credibility or demeanor. Horace Mann Insurance Co. v. Brown (1992), 236 Ill. App. 3d 456, 465, 603 N.E.2d 760.\nAllied relies on Sowinski v. Ramey (1976), 36 Ill. App. 3d 690, 344 N.E.2d 635, and Johnson v. R&D Enterprises (1982), 106 Ill. App. 3d 496, 435 N.E.2d 1233. In Sowinski, the evidence at trial showed that the insured failed to cooperate with the insurer to provide information necessary for the insurer\u2019s investigation and management of a claim. The court held for the garnishee, finding the garnishee had established by a preponderance of the evidence all affirmative defenses raised in its pleadings, including that of noncooperation. In Johnson, the court found that \"where an insured has breached policy conditions, a garnishment action generally will not lie.\u201d Johnson, 106 Ill. App. 3d at 500.\nThe cases cited by Allied are unpersuasive. Allied has not shown that the evidence at the hearing revealed that the defendant failed to cooperate in the investigation or that she breached the policy conditions relevant in the present case.\nThe record in the present case shows that Allied failed to establish its affirmative defense that it did not receive notice of plaintiff\u2019s lawsuit. Allied submitted one witness, Zussman, on its behalf at the garnishment hearing. Zussman testified that he did not work on the file relevant to the plaintiff\u2019s accident claim, but rather reviewed the file only to prepare to testify on October 3, 1991. Zussman testified that another Allied adjuster, Makowski, worked on the file extensively, and that the file contained several pieces of correspondence between plaintiff\u2019s counsel and Makowski. Zussman identified from the file an original letter and notice of attorney\u2019s lien from plaintiff\u2019s counsel to defendant dated March 16, 1989, and stated that Allied received the letter from defendant. Zussman further testified that he could not find in the file a letter from plaintiff\u2019s counsel to Makowski dated September 11, 1990. Based on this testimony, the trial court determined that Allied had notice of plaintiff\u2019s original lawsuit against defendant. Allied has thus failed to show that the decision of the trial court was against the manifest weight of the evidence.\nNext, AEied contends that the trial court erred in admitting into evidence at trial plaintiff\u2019s exhibit 1, a copy of a letter dated September 11, 1990, written by plaintiff\u2019s counsel and sent to Makowski, allegedly attaching plaintiff\u2019s summons and complaint. AEied argues that exhibit 1 was improper hearsay, for which no foundation was laid. AEied further argues that plaintiff\u2019s counsel was not deemed a witness in the proceeding, and was not sworn under oath, and therefore his \"testimony\u201d regarding exhibit 1 was improper. We note that plaintiff\u2019s exhibit 1 is not included in the record on appeal.\nA letter introduced for the sole purpose of showing that the letter was sent to and received by a party is not hearsay. (Fandrich v. Allstate Insurance Co. (1974), 25 Ill. App. 3d 301, 322 N.E.2d 843.) In the present case, plaintiff introduced into evidence a copy of a letter dated September 11, 1990, to show that the original was sent to AEied. AEied has cited no authority in support of its contention that an attorney must be sworn under oath in order to describe an exhibit to the court.\nFrom the facts available, exhibit 1 was properly admitted to impeach the credibility of a witness on cross-examination. (See Frisch v. International Harvester Co. (1975), 33 Ill. App. 3d 507, 338 N.E.2d 90.) The record shows that Zussman testified on cross-examination that Makowski worked extensively on the file and that the file contained correspondence between plaintiff\u2019s counsel and Makowski. Zussman further identified an original letter and notice of attorney\u2019s lien from plaintiff\u2019s counsel to defendant dated March 16, 1989, and stated that AEied received the letter from defendant. Plaintiff then showed Zussman exhibit 1, a copy of the September 11, 1990, letter, and Zussman insisted that the original was not in the file. Under the circumstances, exhibit 1 was properly considered by the trial court.\nFinally, Allied contends that the trial court erred in denying its post-trial motion to compel plaintiff to produce the original copy of the September 11, 1990, letter, admitted into evidence as plaintiff\u2019s exhibit 1 during the garnishment hearing. Allied has failed to cite any authority in support of this contention and therefore has waived this issue for review by this court. In re Marriage of Olbrecht (1992), 232 Ill. App. 3d 358, 597 N.E.2d 635.\nFor the reasons stated, we therefore affirm the judgment of the trial court.\nAffirmed.\nO\u2019CONNOR and MANNING, JJ, concur.", "type": "majority", "author": "PRESIDING JUSTICE CAMPBELL" } ], "attorneys": [ "Moss & Hillison, of Chicago (Gregory R. Spelson, of counsel), for appellant.", "Abrams & Ament, P.C., of Wheeling (Edward R. Jordan, of counsel), for appellees." ], "corrections": "", "head_matter": "LORI J. BLOMQUIST, Plaintiff-Appellee, v. SAMANTHA KENT, Defendant-Appellee (Allied American Insurance Company, Garnishee Defendant-Appellant).\nFirst District (1st Division)\nNo. 1\u201492\u20141083\nOpinion filed May 9, 1994.\nRehearing denied July 14, 1994.\nMoss & Hillison, of Chicago (Gregory R. Spelson, of counsel), for appellant.\nAbrams & Ament, P.C., of Wheeling (Edward R. Jordan, of counsel), for appellees." }, "file_name": "0331-01", "first_page_order": 349, "last_page_order": 353 }