{ "id": 415308, "name": "GWENDOLYN BUCKNER, Plaintiff-Appellee, v. WAYNE CAUSEY, Defendant-Appellee (Warrior Insurance Group, a/k/a Gallant Insurance Company, Garnishee-Appellant)", "name_abbreviation": "Buckner v. Causey", "decision_date": "1999-12-30", "docket_number": "No. 1\u201499\u20140312", "first_page": "139", "last_page": "151", "citations": [ { "type": "official", "cite": "311 Ill. App. 3d 139" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "596 N.E.2d 1344", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 992", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5202023 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "999" }, { "page": "1000" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0992-01" ] }, { "cite": "336 N.E.2d 518", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 313", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2795971 ], "year": 1975, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0313-01" ] }, { "cite": "241 N.E.2d 227", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "100 Ill. App. 2d 366", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2820923 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "373" }, { "page": "373" }, { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/100/0366-01" ] }, { "cite": "19 N.E.2d 620", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "370 Ill. 572", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2561121 ], "year": 1939, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/ill/370/0572-01" ] }, { "cite": "645 N.E.2d 179", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "\"points not raised or argued in an opening appellate brief are waived\"" } ], "opinion_index": 0 }, { "cite": "163 Ill. 2d 346", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477785 ], "year": 1994, "pin_cites": [ { "page": "351", "parenthetical": "\"points not raised or argued in an opening appellate brief are waived\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0346-01" ] }, { "cite": "675 N.E.2d 897", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "174 Ill. 2d 513", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223621 ], "weight": 10, "year": 1996, "pin_cites": [ { "page": "520" }, { "page": "524" }, { "page": "521" }, { "page": "520" }, { "page": "525-27" }, { "page": "525-26" }, { "page": "526-27" }, { "page": "520" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0513-01" ] }, { "cite": "458 N.E.2d 962", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 475", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592819 ], "year": 1983, "pin_cites": [ { "page": "486-87" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0475-01" ] }, { "cite": "492 N.E.2d 532", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 1009", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3450263 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "1012" }, { "page": "1012" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/1009-01" ] }, { "cite": "685 N.E.2d 1335", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "177 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317106 ], "year": 1997, "pin_cites": [ { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0239-01" ] }, { "cite": "565 N.E.2d 931", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "141 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238549 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "26" }, { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0001-01" ] }, { "cite": "326 N.E.2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "27 Ill. App. 3d 150", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2869083 ], "year": 1975, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0150-01" ] }, { "cite": "554 N.E.2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "196 Ill. App. 3d 974", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491518 ], "year": 1990, "pin_cites": [ { "page": "979" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0974-01" ] }, { "cite": "647 N.E.2d 273", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "164 Ill. 2d 207", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477000 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "215" }, { "page": "214-15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0207-01" ] }, { "cite": "703 N.E.2d 978", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "301 Ill. App. 3d 533", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257223 ], "year": 1998, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0533-01" ] } ], "analysis": { "cardinality": 1048, "char_count": 29923, "ocr_confidence": 0.765, "pagerank": { "raw": 2.7333255425421537e-07, "percentile": 0.8312936391272232 }, "sha256": "daf41cdc90e8e64eef921d4ed7a84dabc47a8f142511ff78493f0c30d4b57da0", "simhash": "1:3be971b419cd74b5", "word_count": 4907 }, "last_updated": "2023-07-14T20:30:26.081874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GWENDOLYN BUCKNER, Plaintiff-Appellee, v. WAYNE CAUSEY, Defendant-Appellee (Warrior Insurance Group, a/k/a Gallant Insurance Company, Garnishee-Appellant)." ], "opinions": [ { "text": "PRESIDING JUSTICE HOFFMAN\ndelivered the opinion of the court:\nUpon the trial of her personal injury action, the plaintiff, Gwendolyn Buckner, obtained a judgment in the sum of $15,660.95 against the defendant, Wayne Causey. The plaintiff then commenced a garnishment proceeding against Causey\u2019s insurer, Warrior Insurance Group, also known as Gallant Insurance Company, and formerly doing business as Allied American Insurance Company (hereinafter referred to as Gallant/Warrior). In response to the garnishment summons, Gallant/Warrior: (1) answered, claiming that it was not in possession of funds belonging to Causey; and (2) filed a supplemental response, admitting that Causey was its insured but alleging that his failure to cooperate in the defense of the plaintiffs action was a breach of its liability insurance policy that relieved Gallant/Warrior of any obligation to satisfy the judgment against Causey.\nThe issue of Gallant/Warrior\u2019s liability under its policy was tried, resulting in the entry of a judgment against Gallant/Warrior in the sum of $16,771.91 in favor of Causey for the use and benefit of the plaintiff. The judgment, which was entered on May 7, 1998, included the principal balance of the plaintiffs judgment against Causey, plus accrued interest and costs. Gallant/Warrior filed a timely postjudgment motion entitled \u201cPetition for Motion Notwithstanding the Verdict,\u201d requesting that the court vacate its judgment of May 7, 1998, and enter judgment in its favor.\nWhile Gallant/Warrior\u2019s postjudgment motion was pending, Causey filed a petition pursuant to section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 1996)), seeking sanctions and an award of attorney fees and costs against Gallant/Warrior for its vexatious and unreasonable refusal to pay the judgment entered against him. On December 8, 1998, the trial court denied Gallant/Warrior\u2019s postjudgment motion and, on Causey\u2019s petition, entered an order requiring Gallant/Warrior to pay $6,727.50 for attorney fees incurred by Causey in the garnishment proceeding and the additional sum of $3,500 as a sanction.\nGallant/Warrior now appeals from the trial court\u2019s orders of May 7, 1998, and December 8, 1998, contending that the trial court: (1) \u201cabused its discretion\u201d in requiring it to indemnify Causey for the plaintiff\u2019s underlying judgment; and (2) erred in awarding Causey relief under section 155 of the Illinois Insurance Code.\nBefore addressing Gallant/Warrior\u2019s arguments in support of its assignments of error, we will dispose of the plaintiffs request that we exercise our discretion and strike Gallant/Warrior\u2019s brief for failure to comply with the applicable supreme court rules. There is little question that the plaintiffs objections to Gallant/Warrior\u2019s brief, even as supplemented, are well taken. The statement of facts is argumentative, in violation of Rule 341(e)(6) (177 Ill. 2d R. 341(e)(6)), and is in some places incoherent. Further, the brief lacks a concise statement of the standard of review applicable to each issue raised as required by Rule 341(e)(3) (177 Ill. 2d R. 341(e)(3)). As originally filed, the brief was missing a page and had an incomplete appendix. Although we permitted Gallant/Warrior to supply the missing page of its brief and provide us with a complete appendix, it made no effort to correct its statement of facts or set forth standards of review. However, in the interests of judicial economy and in an effort to dispose of this appeal without further expense to the parties, we decline to strike the brief. The brief sets forth Gallant/Warrior\u2019s assignments of error, both the plaintiff and Causey have been able to respond to the issues raised, and the facts necessary to an understanding of the issues are readily ascertainable from the relatively short record. We caution, however, that our decision not to strike Gallant/Warrior\u2019s brief should not be interpreted as a signal that we are willing, as a matter of course, to overlook violations of the supreme court rules in briefs filed with this court. We are not. Simply put, we find no useful purpose would be served in this case by striking Gallant/Warrior\u2019s brief.\nWe will first address Gallant/Warrior\u2019s contention that the trial court erred in finding that it was required to indemnify Causey for the plaintiff\u2019s underlying judgment. In its brief, Gallant/Warrior claims that the trial court abused its discretion. However, discretion has nothing to do with the issue. When a garnishee\u2019s answer is contested, a trial of the issues presented is to be conducted as in all other civil cases (735 ILCS 5/12 \u2014 711 (West 1996)). That is exactly what occurred below. Consequently, the question before us is not whether the trial court abused its discretion but whether its judgment is against the manifest weight of the evidence. First Baptist Church v. Toll Highway Authority, 301 Ill. App. 3d 533, 542, 703 N.E.2d 978 (1998).\n\u201cA judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence.\u201d Bazydlo v. Volant, 164 Ill. 2d 207, 215, 647 N.E.2d 273 (1995). For the reasons that follow, we are unable to say that the judgment entered in this case on May 7, 1998, against Gallant/Warrior and in favor of Causey for the use and benefit of the plaintiff is against the manifest weight of the evidence.\nGallant/Warrior does not dispute that Causey was its insured at the time he was involved in the motor vehicle accident that gave rise to the underlying litigation and the judgment entered against him. Further, there is no dispute as to the provisions of Gallant/Warrior\u2019s policy relating to the insured\u2019s obligation to cooperate in the defense of any action subject to coverage. Causey was required to cooperate and, at Gallant/Warrior\u2019s request, attend hearings and trials. The parties also stipulated that Causey did not appear or testify at the trial of the plaintiffs claim.\nOn February 26, 1998, the trial court heard the testimony of Causey; Grant Blumenthal, the attorney who represented Causey at the trial of the plaintiffs action; Edward Lowery, Blumenthal\u2019s supervisor; and Jeff Christofinelli, a claims adjuster employed by Gallant/ Warrior. When the hearing concluded, the trial court took the matter under advisement. On May 7, 1998, the trial court issued its written order, finding that Gallant/Warrior failed to establish a defense of noncooperation. Our examination of the record reveals more than sufficient evidence to support such a finding.\nAlthough the trial date for the plaintiffs action, October 20, 1997, was set by an order dated August 7, 1997, Causey was first notified of the trial date when he received a phone call from Blumenthal on either October 17 or 18, 1997. Blumenthal was first assigned to the case on October 17, 1997. According to Blumenthal, he spoke to Causey by phone again on October 19, 1997, and advised him to be on standby for trial the following day, Monday, October 20. Blumenthal testified that he called Causey on October 20, 1997, and told him to be in court on October 21. Prior to October 17, 1997, Causey was not notified either in writing or by phone that the trial of the plaintiffs action had been set for October 20, 1997.\nCausey testified that he informed Blumenthal that he did not have sufficient funds to get to court. According to Causey, he told Blumenthal, when Blumenthal first called, that he only had $3, and when Blumenthal called for the second time, Causey told him that he had no funds. Blumenthal, however, denied that Causey told him that he had insufficient funds to come to court. Blumenthal testified that, each time he spoke to Causey, Causey said that he would appear.\nThe trial court found that Causey told Blumenthal that he had no money to come to court. As the trier of fact, the trial judge was in a superior position to judge the credibility of the witnesses and determine the weight to be given to their testimony. Bazydlo, 164 Ill. 2d at 214-15. When, as in this case, contradictory testimony that could support conflicting conclusions is given at a bench trial, we will not disturb the trial court\u2019s factual findings based on that testimony unless a contrary finding is clearly apparent. DeLong v. Cabinet Wholesalers, Inc., 196 Ill. App. 3d 974, 979, 554 N.E.2d 574 (1990).\nIn Anderson v. Lawlor, 27 Ill. App. 3d 150, 153, 326 N.E.2d 529 (1975), we held:\n\u201cIn asserting the affirmative defense of noncooperation, the burden is on the insurer to prove that it acted in good faith to secure the attendance of the insured and that the insured\u2019s failure to appear was due to his refusal to cooperate. [Citation.] An insurer is not liable for a judgment rendered against its insured if the insured willfully failed to cooperate by refusing to appear at trial after receiving adequate notice. [Citations.] However, the insurer is liable if it was not sufficiently diligent in attempting to secure the insured\u2019s appearance [citations] or if the insured\u2019s failure to attend was not due to a refusal to cooperate. [Citation.]\u201d\nThere is no disagreement among the parties as to the fact that Causey was not notified that the plaintiffs underlying action was set for trial until three days prior to its commencement. This can hardly be termed \u201cadequate\u201d notice or \u201cdiligence\u201d on the part of GallantWarrior. Additionally, the trial court found that Causey\u2019s failure to appear at trial was due to a lack of funds necessary to travel to the Daley Center. This finding is supported by Causey\u2019s testimony, and we will not disturb it as no contrary finding is clearly evident. Failure to attend a trial due to a lack of funds necessary to travel to court cannot be deemed a \u201crefusal to cooperate.\u201d\nBased on the record before us, we are unable to conclude that the trial court\u2019s finding that GallantWarrior failed to establish Causey\u2019s noncooperation in the defense of the plaintiffs action is against the manifest weight of the evidence. However, since GallantWarrior also claims that the trial court relied on information it received outside the record to support its finding, our analysis must continue.\nThe evidence established that Blumenthal and Lowrey were not merely attorneys engaged by GallantWarrior to defend Causey, they were employees of GallantWarrior at the time that they undertook Causey\u2019s representation. It appears from the record that when the trial court became aware of this circumstance, it ordered that the matter be brought to the attention of the Attorney Registration and Disciplinary Commission (ARDC). It also appears that a copy of the transcript of the February 26, 1998, proceedings before the trial court, or a portion thereof, was sent to the ARDC at some point in time prior to the issuance of the trial court\u2019s written order on May 7, 1998. In its May 7 order, the trial court found that Blumenthal and Lowrey\u2019s representation of Causey while they were employees of Gallant/Warrior constituted a conflict of interest. Specifically, the court found that these attorneys violated various provisions of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.1 et seq.) by, inter alia: failing to advise Causey of his rights and duties; rejecting an arbitration award in favor of the plaintiff without advising Causey that they were doing so; failing to disclose to Causey that they were acting to protect the interests of Gallant/Warrior; and failing to advise the judge presiding over the plaintiffs trial of their conflict of interest.\nIn its postjudgment motion, Gallant/Warrior alleged that, subsequent to the close of proofs, the ARDC had \u201cexonerated\u201d and \u201ctaken no disciplinary action\u201d against Blumenthal or Lowrey. On the strength of this fact, Gallant/Warrior requested that the court vacate its judgment of May 7, 1998, and enter judgment in its favor. When Gallant/Warrior\u2019s postjudgment motion came on for hearing, the trial judge informed the parties that, prior to the issuance of his written order on May 7, 1998, he was contacted by a representative of the ARDC who informed him that the ARDC would not consider the matter until the court made its findings and that it was closing its file. On appeal, Gallant/Warrior contends that the trial court\u2019s determination that Blumenthal and Lowrey violated the Illinois Rules of Professional Conduct was somehow influenced by the information it received from the ARDC and, as a result, it argues that the judgment of May 7, 1998, should be reversed.\nIn a bench trial, a judge is presumed to have considered only competent evidence in making his finding. People v. Tye, 141 Ill. 2d 1, 26, 565 N.E.2d 931 (1990). This assumption will be overcome only if the record affirmatively demonstrates the contrary, such as the judge\u2019s consideration of matters outside the record. Tye, 141 Ill. 2d at 26. A court\u2019s consideration of matters outside the record is prejudicial error which can result in a reversal of its judgment. People v. Steidl, 177 Ill. 2d 239, 266, 685 N.E.2d 1335 (1997). However, we fail to find any evidence in the record before us which suggests that the trial court relied upon anything outside the record in arriving at its judgment.\nOur reading of the record reveals that the trial judge acknowledged that a representative of the ARDC called and informed him that the ARDC would not consider the matter at that time and that the ARDC\u2019s file was being closed. There is no suggestion that the trial judge and the ARDC representative discussed the specifics of Blumenthal or Lowrey\u2019s conduct or the merits of any charge that they violated the Illinois Rules of Professional Conduct. Nevertheless, Gallant/Warrior asserts that \u201cthe Trial Court acknowledged that it accepted a communication from the Attorney Registration and Disciplinary Commission of the Supreme Court and utilized the same in making its decision.\u201d (Emphasis added.) In the statement of facts contained in its brief, Gallant/Warrior states that \u201cthe Court acknowledged that he got this call at a time prior to rendering the decision and considered the same. (Volume 4, T.53).\u201d (Emphasis added.) Although there is no question that the trial judge received the call from the ARDC prior to the issuance of his judgment order, there is nothing contained on the record page referenced by Gallant/Warrior or any other page of the record that even remotely suggests that the trial judge \u201cutilized\u201d or \u201cconsidered\u201d any information that he received from the ARDC in rendering his judgment.\nGallant/Warrior also seems to argue that the trial court\u2019s findings of a conflict of interest and violations of the Illinois Rules of Professional Conduct on the part of Blumenthal and Lowrey are not supported by the evidence in the record. Assuming for the sake of argument that the contention is correct, we would still affirm the trial court\u2019s order of May 7, 1998, and the denial of Gallant/Warrior\u2019s post-judgment motion.\nAn erroneous conclusion of law is not a ground for reversal of a judgment where the judgment itself is legally correct. Ehredt v. Forest Hospital, Inc., 142 Ill. App. 3d 1009, 1012, 492 N.E.2d 532 (1986). \u201cIn addition, an erroneous finding of a material fact is not ground for reversal where there are other findings not inconsistent therewith which are unaffected by the error and are sufficient to sustain the judgment.\u201d Ehredt, 142 Ill. App. 3d at 1012; see also Evanik v. Janus, 120 Ill. App. 3d 475, 486-87, 458 N.E.2d 962 (1983). In the instant case, the failure on the part of Gallant/Warrior to give Causey more than three days\u2019 notice of a trial date that had been set 21/a months prior, along with the trial court\u2019s finding that Causey told Blumenthal that he lacked the funds to travel to court, is sufficient, standing alone, to support a finding that Gallant/Warrior failed to establish its defense of noncooperation, without regard to the correctness of the trial court\u2019s findings that Blumenthal and Lowrey were in a conflict of interest and violated the Illinois Rules of Professional Conduct. Our decision in this regard makes it unnecessary for us to consider Gallant/ Warrior\u2019s claim that the trial court erred in quashing its subpoena for Lowrey to testify in support of its postjudgment motion as the purpose of that testimony was only to inform the court that the ARDC had taken no action against him.\nFor these reasons, we affirm the May 7, 1998, judgment against Gallant/Warrior in the sum of $16,771.91 in favor of Causey for the use and benefit of the plaintiff, and the denial of Gallant/Warrior\u2019s postjudgment motion.\nNext, we address the propriety of the trial court\u2019s order of December 8, 1998, awarding Causey attorney fees and assessing a sanction against Gallant/Warrior pursuant to section 155 of the Illinois Insurance Code. In urging reversal of this order, Gallant/Warrior argues that relief under section 155 can only be sought by a policyholder in a first-party action against his insurer, and not in the context of a garnishment proceeding brought by a third party.\nSection 155 of the Illinois Insurance Code provides in pertinent part as follows:\n\u201c(1) In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts:\n(a) 25% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;\n(b) $25,000;\n(c) the excess of the amount which the court or jury finds such party is entitled to recover, exclusive of costs, over the amount, if any, which the company offered to pay in settlement of the claim prior to the action.\u201d 215 ILCS 5/155 (West 1996).\nAccording to our supreme court, this \u201cstatute provides an extracontractual remedy to policyholders whose insurer\u2019s refusal to recognize liability and pay a claim under a policy is vexatious and unreasonable.\u201d Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513, 520, 675 N.E.2d 897 (1996).\nFrom the outset, we are compelled to observe that Gallant/ Warrior\u2019s brief does not address itself to the question of whether the raising of a noncooperation defense in this case was \u201cvexatious and unreasonable,\u201d nor does it claim that the trial court erred in the calculation of the attorney fees it awarded or abused its discretion in assessing a $3,500 sanction. Rather, Gallant/Warrior\u2019s brief states: \u201cAlthough in no way does Gallant agree with the lower court\u2019s finding that Gallant or Warrior had exhibited \u2018vexatious and unreasonable\u2019 misconduct at anytime, Gallant presently takes issue with the lower court\u2019s final conclusion in this case that Section 155 should have been looked to for relief in the context of the facts below.\u201d Consequently, Gallant/Warrior has waived all issues as to the propriety of the fees and sanction awarded to Causey under section 155, other than the legal question of whether relief under that statute can be awarded to a policyholder in the context of a garnishment proceeding commenced against his insurer by a third-party judgment creditor. 177 Ill. 2d R 341(e)(7); see also People v. Wendt, 163 Ill. 2d 346, 351, 645 N.E.2d 179 (1994) (\u201cpoints not raised or argued in an opening appellate brief are waived\u201d).\nIn support of the proposition that a remedy under section 155 may only be awarded in an action commenced by a policyholder against his insurer, Gallant/Warrior relies heavily upon our supreme court\u2019s decision in Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513, 675 N.E.2d 897 (1996). In Cramer, the circuit court certified two questions for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). The first question was whether section 155 of the Illinois Insurance Code preempts a common law fraud action against an insurance company for its alleged unreasonable conduct in denying an insurance claim. In the context of formulating its response to this question, the supreme court undertook to examine the development of section 155 and to consider the interaction of the statute with tort law. According to the Cramer court, relief under section 155 is extra-contractual in nature and presupposes an action on the policy. Cramer, 174 Ill. 2d at 524. As the court observed, before the enactment of the predecessor to section 155, a breach of contract action to receive the proceeds of an insurance policy was a policyholder\u2019s only recourse against a carrier that refused to recognize liability under its policy and pay a claim. Cramer, 174 Ill. 2d at 521. Section 155 now allows a policyholder to recover reasonable attorney fees, costs, and a penalty, as well as traditional contract damages in an action against an insurer on the policy. Cramer, 174 Ill. 2d at 520.\nThe Cramer court also devoted a significant portion of its opinion to a discussion of the differences between claims against insurance carriers for breach of the duty to act in good faith by refusing to settle a claim against an insured (\u201cduty to settle\u201d cases) and claims against insurance carriers for failure to pay the proceeds of their policies (\u201cfailure to pay\u201d cases). See Cramer, 174 Ill. 2d at 525-27. The Cramer court acknowledged that an independent tort action has been recognized in \u201cduty to settle\u201d cases, because, absent policy provisions defining the insurer\u2019s liability for failing to respond to settlement offers, the policyholder has no contractual remedy. When an insurer breaches its \u201cduty to settle,\u201d it may be liable for the full amount of a judgment against its policyholder, regardless of the limits of its policy. Cramer, 174 Ill. 2d at 525-26. When, on the other hand, an insurer refuses to pay pursuant to the terms of its policy, the action is one for breach of contract to which the additional remedies afforded under section 155 are applicable. According to the Cramer court, in providing for the extracontractual remedies under section 155, the legislature recognized that the contractual remedy may not be sufficient in a \u201cfailure to pay\u201d case. Cramer, 174 Ill. 2d at 526-27. However, we are at a loss to understand how the supreme court\u2019s discussion of the difference between \u201cduty to settle\u201d cases and \u201cfailure to pay\u201d cases along with its holding that section 155 remedies are applicable to the later but not the former supports Gallant/Warrior\u2019 s contention on appeal.\nAlthough section 155 remedies are reserved for policyholders (Cramer, 174 Ill. 2d at 520), the statute does not speak in terms of actions brought by policyholders. Its wording is a bit more expansive. By the plain language of section 155, the remedies provided may be awarded in an action, inter alia, \u201cagainst a company wherein there is in issue the liability of a company on a policy.\u201d 215 ILCS 5/155(1) (West 1996). For the reasons that follow, we find that the garnishment proceeding instituted by the plaintiff in this case was no less of an action against Gallant/Warrior wherein there was in issue its liability on an insurance policy than a separate breach of contract action brought by Causey against Gallant/Warrior for failure to pay under its policy would have been.\nIn discussing the remedies available in \u201cfailure to pay\u201d cases, the Cramer court observed: \u201cOrdinarily, a policyholder may bring a breach of contract action to recover the proceeds due under the policy.\u201d Cramer, 174 Ill. 2d at 520. The court\u2019s use of the word \u201cordinarily\u201d suggests that, although a breach of contract action brought by the policyholder against his insurer is the usual means of recovery, it is not necessarily the exclusive means.\nA garnishment proceeding is a remedial measure designed to reach assets belonging to the judgment debtor and make those assets available for application in payment of the judgment against him. Zimek v. Illinois National Casualty Co., 370 Ill. 572, 574, 19 N.E.2d 620 (1939). It is not a distinct and separate suit, but is an ancillary step in the original action. Baron v. Villareal, 100 Ill. App. 2d 366, 373, 241 N.E.2d 227 (1968). In such a proceeding, the judgment creditor stands in the shoes of the judgment debtor (Dewey ex rel. Smith v. United States Fidelity & Guaranty Insurance Co., 32 Ill. App. 3d 313, 316, 336 N.E.2d 518 (1975)) and, consequently, the claim asserted against the garnishee must be one that the judgment debtor could have maintained and enforced in his own name (Baron, 100 Ill. App. 2d at 373). The rights of the garnishee are protected as the trial of such a claim must be conducted as in other civil cases. 735 ILCS 5/12 \u2014 711(c) (West 1996). The Code of Civil Procedure specifically provides that any judgment entered against a garnishee shall be entered \u201cin favor of the judgment debtor to whom the garnishee is indebted *** for the use of the judgment creditor.\u201d 735 ILCS 5/12 \u2014 711(d) (West 1996). The reason for this requirement is obvious. In a garnishment proceeding, it is the legal interest of the judgment debtor that is being asserted against the garnishee, albeit by the judgment creditor. Baron, 100 Ill. App. 2d at 372.\nIn this case, the legal interest asserted against Gallant/Warrior in the garnishment proceeding instituted by the plaintiff was Causey\u2019s action on his policy of liability insurance. The issues presented were the same as those that would have been presented had Causey commenced an independent breach of contract action against Gallant/ Warrior, asserting a \u201cfailure to pay\u201d claim; namely, Gallant/Warrior\u2019s liability on the policy of liability insurance it issued to Causey. Simply put, the garnishment proceeding was the functional equivalent of an action for breach of contract by Causey against Gallant/Warrior.\nAs stated earlier, section 155 relief can, subject to other requirements, be awarded in an action against an insurance company where the question of its liability on a policy of insurance is in issue. Based upon the foregoing analysis, we hold that the garnishment proceeding instituted by the plaintiff against Gallant/Warrior in this case was such an action.\nAs our recitation of section 155 reflects, there is an additional requirement that must be met before a court should award relief under the provisions of the statute. Specifically, the actions of the insurance company in denying liability, refusing to pay a covered loss, or delaying the settlement of a claim must be vexatious and unreasonable. 215 ILCS 5/155(1) (West 1996). The question of whether any given behavior is vexatious and unreasonable is a question of fact (Boyd, v. United Farm Mutual Reinsurance Co., 231 Ill. App. 3d 992, 999, 596 N.E.2d 1344 (1992)), which, in a bench trial, is subject to a manifest weight standard of review. Additionally, it must be noted that section 155 states that a court \u201cmay\u201d award relief. 215 ILCS 5/155(1) (West 1996). The use of the word \u201cmay\u201d signals a legislative intent to vest the trial court with discretion in awarding relief. As in other matters committed to the discretion of the trial court, we will not reverse in the absence of an abuse of that discretion. See Boyd, 231 Ill. App. 3d at 1000. However, Gallant/Warrior made no argument in its brief that the trial court\u2019s implicit finding of vexatious and unreasonable behavior on its part is against the manifest weight of the evidence, nor did it address the question of whether the trial court abused its discretion in awarding relief under section 155. Consequently, as noted earlier, these issues have been waived for purposes of this appeal.\nBased upon our resolution of the issues raised by Gallant/Warrior in its brief, we affirm the order of the trial court awarding Causey relief under section 155.\nBoth the plaintiff and Causey have requested that we award them sanctions pursuant to Supreme Court Rule 375 (155 Ill. 2d R. 375). Causey has also requested that we remand this case to the circuit court for an award, under section 155, of the attorney fees he incurred defending this appeal. We deny both requests.\nFor his part on appeal, Causey addressed only the issue of whether relief under section 155 may be awarded to an insured in a garnishment proceeding instituted against his insurer. On the question of whether the trial court\u2019s finding that Gallant/Warrior failed to establish a policy defense was against the manifest weight of the evidence, Causey merely adopted the arguments contained in the plaintiffs brief. Since the issue of whether an insured may recover section 155 relief in a garnishment proceeding instituted against his insurer is one of first impression, we are unable to conclude that Gallant/Warrior\u2019s appeal was either frivolous or instituted for any improper purpose, and we, therefore, decline to award sanctions pursuant to Rule 375. For the same reason, we are unable to find that Gallant/Warrior\u2019s appeal as to that issue, the only issue addressed by Causey, was vexatious or unreasonable. Consequently, we also decline to remand this case to the circuit court for the award of any additional relief under section 155.\nAffirmed.\nSOUTH and HALL, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HOFFMAN" } ], "attorneys": [ "Bernard W Moltz & Associates, of Chicago (Bernard W Moltz, of counsel), for appellant.", "Joseph, Lichtenstein & Levinson, of Chicago (Burton Joseph, Kenneth Levinson, and Jack Joseph, of counsel), for appellee Gwendolyn Buckner.", "Birg & Associates, Ltd., of Lincolnwood (David B. Nemeroff, of counsel), for appellee Wayne Causey." ], "corrections": "", "head_matter": "GWENDOLYN BUCKNER, Plaintiff-Appellee, v. WAYNE CAUSEY, Defendant-Appellee (Warrior Insurance Group, a/k/a Gallant Insurance Company, Garnishee-Appellant).\nFirst District (4th Division)\nNo. 1\u201499\u20140312\nOpinion filed December 30, 1999.\nBernard W Moltz & Associates, of Chicago (Bernard W Moltz, of counsel), for appellant.\nJoseph, Lichtenstein & Levinson, of Chicago (Burton Joseph, Kenneth Levinson, and Jack Joseph, of counsel), for appellee Gwendolyn Buckner.\nBirg & Associates, Ltd., of Lincolnwood (David B. Nemeroff, of counsel), for appellee Wayne Causey." }, "file_name": "0139-01", "first_page_order": 157, "last_page_order": 169 }