*1 gen legal the defendant received. representation is entitled to indigent eral rule is that an defendant not 534.) Ill. (1961), 22 counsel of her choice. v. Cox (People exist, is general this rule se not per Where conflict does upon grace, A applicable. may defendant as a matter of demand, any perceiv new counsel when timely given be But, remote, is in this case. new slight able conflict right. is not a matter of counsel under such circumstances And, prejudiced by unless the can show she was defendant received, the majority I with representation agree she agree is I required. that a trial not also new showing such a Lewis has made majority Bernice here, the court. join thus
(No. 53425.
(No. 53547. MURPHY, MARILYN URSO ANN Appellee, JOYCE al., et Appellants. 18, Opinion Rehearing denied December filed 1981. January 1982. *4 GOLDENHERSH, MORAN, J., C.J., dissenting. and MсKenzie, of D. Morrissey, & Chicago Baker (Francis Donahue, of coun- Richard and H. Barry, Jr., Norman J. Traveler’s Indemnity Company for appellant sel), et al. Illinois Bell, Ltd., Cusack, of Cusack & Johnson, R.
Raymond for H. appellant Fegan, of Chicago (Thomas counsel), Urso et al. Marilyn Karasik, Z. of Chicago (Sidney Jr., T. Murphy,
George for appellee. counsel), SIMON court: opinion delivered JUSTICE inci- These from the same consolidated cases arose injured Murphy dent —a was Joyce traffic accident which was riding and which when van which she was In cars. traveling speed parked at struck several excessive driver, Clancey, No. Murphy cause sued the James owners, Urso, operator of alleged Marilyn and the van’s School, Pre-school, Primary Inc. Edgewater Edgewater that he alleged negligent Shе Subsequently, acting the other defendants. agent of count by adding second complaint amended her wilful and wanton against alleging Urso her schools plaintiff Clancey. negligent entrustment of the van brought then Clancey, judgment against obtained a default the Trav- (cause 53425) against garnishment action No. *5 449 elers and the Travelers Indemnity of Illinois Company insurer. (Travelers), Insurance Urso’s business Company summary County granted circuit The court of Cook judgment against grounds the that Murphy on employment of his operating the van within the scope him. In and that Urso to had not entrusted the use the van action, the garnishment court found that Travelers was estopped coverage from insurance denying under Urso’s policy, because Travelers had refused against re Clancey. appellate defend suit The сourt versed Urso’s summary judgment and remanded the acci dent case for but judgment, trial affirmed the with one judge against (83 779.) Ill. dissenting, App. insurer. granted This appeal (73 court leave Ill. 2d under Rule R. 315).
I THE CASE: INSURANCE ARE THERE OF
CONFLICTS INTEREST? Chronologically, first in parties issue various these cases reached was whether Travelers had to defend against the suit by Murphy. filed him resolution of that issue is allegations tied to the of Murphy’s complaint potential and the it presented. liability To best examine the issue is necessary explore procedural background of the two cases.
Clancey did not respond initial Murphy to the com- plaint, and after the appropriate passed of time had length $750,095 default judgment against was entered him. Ms. then Murphy garnishment filed her against suit Travelers seeking payment from the business policy insurance issued to Ms. Urso’s schools. Ms. Murphy garnish- claimed in the ment action that was covered policy permissive user of the preschool’s bus. tried to Travelers deny coverage of Clancey ground, Murphy on this but Ms. urged that Travelers was from estopped denying because insured, failed Clancey, to defend underlying suit. garnishment circuit court lay suit dormant until the
granted against Murphy the under- summary judgment At lying point accident case. both garnishment summary judgment Travelers moved for accident action. Travelers that the argued to use the Clancey’s authority case settled the question estopped bus. But the circuit court held Travelers was the full making any from defenses and awarded policy *6 interest, Ms. judgment, plus amount of the default $854,000. in Murphy total of This was excess of —a $100,000 policy limits. is whether appeal
The issue in this of the рresented part A coverage. policy Travelers denying was from estopped in helpful to the be guide levels of contention would Murphy of Ms. understanding arguments responses and First, pay should and Travelers. she claimed that Travelers because, of the as the driver judgment against Clancey vehicle, insurance. Travelers he fell under policy he had no not responded that was covered because the accident. permission use the bus at the time of Second, not raise Ms. that Travelers could Murphy retorted a it with provide that defense had failed to because estopped defense the accident case. It was therefore cover- denying and raising question permission from because estopped it was not age. Travelers answered thаt existing Clancey. Under a with had conflict of interest law, taking from Illinois a excused such conflict that Third, claimed Murphy Clancey’s defense itself. from Travelers prevent the conflict of did not interest policy and thus determining there was whether action, Trav- that and declaratory judgment simply than route rather elers should have taken that answered Travelers declining a defense. give this, like a case for inappropriate such an was action and occur that would of the shifts procedural because Fourth, Ms. estoppel. of collateral because of the effect procedural mind the did not that she Murphy countered operated not have would estoppel shifts that collateral levels are the four Such disagreed. in any event. Travelers al- appeal, segment in this argument involved every level. in addition on though skirmishes occur If the of. disposed quickly first is argument level of liable; the be would Travelers policy Clancey, extended to realistically be negligence is could Clancey’s reason for shoes Clancey’s who stood Murphy, contested. action, conceded purposes garnishment cars parked into Clancey slammed accident occurred when No other too fast. a corner too wide and rounding while Clan- except perhaps factor was involved the accident in a 2J2 hours spent and Ms. cey’s sobriety —he therefore, Here, only bar before the accident. just clashed over parties question policy coverage, its policy to raise permitted whether be Travelers would permission. without using defense that the van analysis our begin We thus move to the second level An estoppel. rule of general of the case the familiar potentially complaint taking position insurer that a provides policy is which alleging coverage not covered *7 claims any defend duty that the insurer has the and to right to defend simply refuse brought against the insured cannot of a reservation It suit under the insured. must defend the is no that there rights declaratory judgment or seek a this, from estopped it is coverage. If the insurer fails to do the is liable for coverage later and raising policy defenses to suit, because the against award the the costs of insured and (Sims v. duty pay. the to duty the to defend is broader than 184, App. Ill. 2d (1963), 43 Casualty Illinois National Co. But, rule. general the 199.) exceрtion this case turns an to on is a conflict An there insurer must decline to defend where Paul v. (Thornton insured. of interest between and the 132, 152; Peppers Co. v. Casualty 74 Ill. (1978), Maryland 2d (1976), 64 Ill. 2d of 187, 198-99.) participating Instead itself, defense independent the insurer must the costs of pay 187, 132, 162; (74 counsel for 64 Ill. 2d the insured. Ill. 2d And, defense, 199.) Travelers Clancey requested starting would obligated have been the costs. The pay to estoppel point under the rule of analysis general either exception complaint the allegations is the same —the and the turn. by issued insurer. To these we policy the policy,
Travelers issued a insurance comprehensive insurance including automobile general liability both sections, to insurer obligated the schools. the policy bodily pay damages on the due to behalf of insured all of, the van injury among things, the use other arising out of involved in extended the accident. The policy’s the insured. persons using permission the with named van suits any Travelers given right duty was defend against insureds. 10, complaint August filed her initial on Urso and agent
1972. of Ms. Characterizing Clancey as defendants, Clan- preschool, including charged she conduct, primarily cey, negligent wilful and wanton or against due to Clancey’s driving. The default State, Clancey, Secretary through who was served was he made appearance. entered when no filed which
Although an amended was later complaint alleging for the first entrust negligent time added count ment, first file when was the complaint against present failure to any resulted the default defense turn we Clancey. Thus it is that alone to which complaint Co. (La Rotunda Globe Insuranсe Royal our attention. Murphy’s (1980), alleged App. 452.) Ill. It bus injury driving preschool’s caused faulty the named agent an one with —therefore —of negligence, insured. presented the issues of complaint causation, Urso. between relationship and the these, Urso— relationship Clancey and between Of
453 raising the had to question permission whether of the issue. The com- use van—was the contested principal plaint presented potential coverage, a of and the case general rule of Travelers learned of estoppel triggered. suit against Clancey when Ms. Urso tendered the it, it to preschool’s duty provide defense to and then had a insured, to its defense and the schools.
But which An analysis one? reveals possibilities the dilemma It which Travelers found itself. controllеd both defenses. To defend the would preschool, try best that Clancey show did not to use the bus at permission have this, time of To do it had to show either accident. he had discharged any been or event was not operating scope within his employment, or that he explicit had no approval or use the bus. This implicit would sever any preschool connection between and Clancey, place all liability Clancey, and exonerate the school. But to Clancey, try best serve Travelers had to show that he did the bus. This have to use would spread the was in liability Clancey’s to the schools. It interest, then, to fired and that show he had not been his use the bus within his scope employment, or that he had use approval received for the of the bus to help Murphy move.
The interеsts of Ms. Urso’s schools how the suit was to diametrically opposed, be defended were creating Travelers, an charged ethical conflict for which was with providing vigorous (See a full to each. defense 2d, Ill. Code of R. In Responsibility, 105.) Professional 5 — order to defend Clancey, either the schools Travelers had or to resolve the conflict pick defense. How strategy could do so for one other? harming without But problem— Travelers had an even more fundamental conflict If it Clancey’s. between own interests and prove could negligent, not been did accident, cause the strategies probably which would be *9 unsuccessful, inter conflict of sidestep Travelers could the schools proceed est and with a defense of both that, siding lay interest Clancey. failing Clanсey’s But Ms. Urso’s schools shifting liability to plaintiff with pay any judgment so that the insurance would lay interest Travelers’ against Clancey. was awarded bear so that he would separating Clancey from the schools could on what hung, again, the entire The balance liability. Clancey’s em scope of proved permission be about —the The the bus. his to use ployment approval and the extent of between a fundamental conflict permission presented issue inter whose (Clancey) the insurer and the insured putative 2d, Professional Ill Code of (See est controlled. control could Travelers Responsibility, 101.) R. How 5 — behalf, defense, when Travelers’ his Clancey’s acting on all the blame placing interest would be best served Clancey? a provided estoppel rule of exception gеneral to the above, As stated
way labyrinth. out of ethical Travelers’ that, problems ethical because of the serious provides involved, with of interest facing the insurer a conflict is not insured’s defense insured the conduct (Thorn in the defense. obligated permitted participate to Casualty Co. Maryland v. 132, 152; ton Paul (1978), 74 Ill. 2d to Peppers only had 187, 198.) Travelers (1976), 64 Ill. 2d chose defense underwrite the costs of whatever that here difference (74 152.) Ill. It makes no make. directly instead of insured putative the confict was with a Peppers. Thornton An insured, with named is, these for coverage policy from argument over exclusion inclu over argument an no from purposes, really different interest do of sion. The of the conflict particulars all. at matter, is a conflict the fact that there оnly his own counsel has be defended right insured to be defended insured choosing. A an ruling required be would litigation enemy his by what amounted to foolish.
But claims plaintiff, argument, at the level of third here, should still have been estopped insurer because she this is not the kind of case the contends that exception was created for. that while the conflict She asserts of interest may have a defense under reserva- foreclosed tion rights, still insurer could have resolved question prior choosing defense strategy by bringing a action. This would declaratory judgment have resolved to use the whether van, and the reasons for would the conflict have disappeared, undertake his allowing Travelers to then defense in the suit it did brought by Murphy. Because not seek a Clan- declaratory judgment and did not defеnd cey, asserts, the plaintiff estopped should now be Travelers *10 from denying that Clancey by policy. was covered the
But a accep action an declaratory judgment was not table underlying vehicle here. Where issues in an suit the and a declaratory judgment separable, deciding action are the question of in proceeding prejudi a collateral ces no party. changes The issues are situation when the same, substantially in principal the this case where the contested is Clancey’s issue to use the van. permission (Note, Judgment Use the A Declaratory to Determine of Interests, 41 Duty To Liability Insurer’s Defend — Conflict 87, 106 Ind. (1965).) estoppel The doctrine of collateral L.J. would be applicable, consequently the result of the declaratory in the under judgment controlling would be suit, lying on Urso and her especially the issuе whether alleged schools only could be held liable the theory on original County (Williams v. complaint agency. Madison — 404, Mutual (1968), Automobile Co. 40 Ill. 2d Insurance 407.) Declaratory judgment only would be a forerunner trial, the accident nothing and would resolve different.
There is insurer require no reason in the such a case engage Declaratory in a unnecessary useless and exercise. (Allstate in this setting premature. would be 215,
Insurance Co. v. Gleason Ill. 2d (1964), App. 64 Ill. 2d Co. Maryland Casualty Peppers (1976), cited 187, 197.) by forcing It the prejudice would also insurer it, as an upon plaintiff, proof. Normally the burden of burden, the insurer is on this but has not forced to take a option as defend under reser electing well of instead to insurer vation of an to the here rights, option is closed because of conflict the of interest. Thornton
As put it: “In such proceeding, an issue crucial the insured’s *** liability personal be injury the action would in a with the purely ancillary proceeding determined plaintiff injury action personal and defendant aligned both same as defendants side Also, declaratory judgment action. the order bur proof den of and dictated would be oriented to primary declaratory judgment action and not litigation, 132, 159.) Ill. personal injury (74 suit.” losing oppor- plaintiff prejudiced by would also be suit, an tunity timing to control the venue and clogged. are important consideration where court calendars preclude estoppel Because would the doctrine of collateral could relitigation issue in the case which only contested, realistically be whether occurred, shоuld to use the van when Travelers the accident declaratory judgment required not have been to institute action. accepted plaintiff that she have says would *11 her contention
procedural disadvantages. To buttress question obligated Travelers either to resolve was or defend coverage through declaratory a action judgment final level Clancey, she to the advances fourth would argument, estoppel contending that collateral not be operated have here issues would because the same both proceedings. least at estoppel operates
She is mistaken. Collateral where v. (Smith there is an and issues. identity parties 434, Bishop (1962), 437.) requirements 26 Ill. 2d Those would parties declaratory have been satisfied here. The insurer, Ms. Murphy, action would have been the Clancey, Urso and the schools. In the accident case the parties are the except same for the insurer. But because the insurer has the duty putative to control the defenses of its insured, and named it too estopped by would have been declaratory judgment. (See G. Shedd Greenlee John Aquarium (1977), 381, 385; 66 Ill. (1962), 2d Smith v. Bishop 26 Ill. was, (Schaefer, J., dissenting).) There therefore, identity parties.
There was also A identity declaratory judg- of issues. ment action would have decided whether was covered by the policy. depended That on he had whether accident, to drive the bus at the time of the would hinge fired, scope whether he had been of his if employment fired, he had not been ap- and whatever proval he had obtained help to use the bus to move. The principal issue the accident case identical. Ms. Murphy would be same issue in litigating precisely the each case-permission in its various guises. summarize,
To through we work our back way argument. levels of Collateral estoppel applied would have if a declaratory judgment so such brought, action was an action would premature, have been not a viable alter- native for the insurer. have only The accident trial would been a trial, rerun of duplicating the insurance the issues under Travelers, a different set of which had a burdens. conflict of interest with there- Clancey, required, was not fore, to bring a declaratory judgment action to determine coverage. time, At the same under a could not defend reservation of rights caught because it the conflict of schools, interest between the Clancey, and itself. Travelers’ only option itself, was to decline to defend remain- ing liable for the costs of defense himself whatever *12 to to make. not allowed defend
chose Because was coverage Clancey, estopped denying was not from garnishment Clancey had suffered though action even Peppers Thornton exception default. The announced to this general estoppel controls case. rule of distinguish Thorn- plaintiff’s
The last contention seeks to ton Peppers on the was ground that here a defense Plaintiff decries Clancey anyone. never tendered for con- prejudice Clancey thus incurred —because flict him and when of interest the insurer did not defend made Clancey himself no appear, did defense Thus, his a substantial behalf. suffered him, to against having pay and Travelers has escaped to Trav- acknowledge costs of a We the windfall defense. elers, point solely but that it because happened out to failing request defaulted to or to Travelers appear regard for his him. If own defend had such low no to rights, is reason windfall that Travelers received to it exception general estoppel alter either the rule of or the conflict triggered by a of interest. stated, excep- within the
For the reasons this case falls enunciated in Thornton. Conflicts tion of interest with But his defense. putative insured relieve the insurer from rule exception general this is swallow the not meant to defense its insured with a requiring provide the insurer conflicts is actual coverage potential. Only when where Such a conflict of interest is the rule appear general relaxed. exists here. The in favor of summary judgment policy The is reversed. garnishment action therefore use —the nonpermissive defense on the basis of by the litigated argument yet first to be very point of —is re- be must therefore parties. garnishment action proceedings manded to the circuit court for further respect may policy which Travelers assert defenses at the vehicle to use whether Ms. Murphy injured. time
II CASE: ACCIDENT THE FACT? OF ISSUES ARE THERE 53547) was submitted No. (cause action underlying and the defend- plaintiff’s to the circuit court on both the the affidavits and on summary judgment ant’s motions for *13 issues Because of witnesses. depositions and of various in more detail. raised is to discuss the evidence necessary any file affi- did not was not and Clancey deposed comе has never story davits. As a result his side of the plain- light. presented by was Clancey’s driving record another tiff. It and speeding showed three convictions for had license yield right-of-way. Clancey’s for failure to revoked suspended been at and was point for months one after the accident.
Ms. in the van when Murphy passenger was the copy a crashed. As affidavits and also plaintiff, she offered deposition. deposition of her She said furniture. evening moving accident occurred after long a before, would Two weeks her that he Clancey had told her help have the use of buses to preschool’s two of the Ms. in the buses Clancey move. Murphy had ridden his of assistance. passenger before as a and offer accepted She, roommates, friends, began Clancey hеr several and 1,1971; retired to a moving they at 5:15 p.m. September Ms. most of nearby pub p.m. about 11 to relax after from the Two vans Murphy’s furniture had been moved. moving, in and Edgewater used Pre-school had been in one home everyone Murphy Clancey but Ms. and drove Clancey about Ms. 12:45a.m. Around 1:30a.m. home, blocks got into the the few remaining van drive into slammed but turned too and too fast and wide up on parked cars. Ms. out and woke Murphy blacked including injuries, someone’s lawn. She suffered various broken pelvis and a concussion. Urso, defendant, Edgewater
Marilyn president was Pre-school, Inc., principal Edgewater and a shareholder School, van, Primary Inc. The bus involved was a one of three preschool. Clancey owned worked for the preschool as a bus driver. The three buses еach made three noon, runs each at and a day: morning, one another third At run the drivers were evening. the end of each park to take the buses to a station them there. service keys kept were the station office. per- Ms. never Urso stated that the bus drivers were personal mitted to use the for reasons and vehicles night did not receive to use the bus the the accident She of no occasion when occurred. knew personal his own Clancey had ever before used the bus for reasons. Urso,
According day fired the before the accident. The enrollment was down preschool’s thought promising Urso the least Clancey was prospect among discharge actual the drivers. The Chandler, preschool. handled the director Joanne fired, In an been аffidavit Ms. Urso said that *14 consent, knowledge, took the bus without her furniture, totally it using purpose and was to move a students. designated transport unrelated to its use to Ms. Urso. by deposition Chandler’s was offered Joanne it, to supposed In Ms. was Clancey Chandler said that at parked to to be report supposed her. The buses were word received station when not out a run. Twice she had night, at that the bus had been seen out Clancey drove Ms. Urso reported had Ms. Urso. She the incidents to using He admitted Clancey reports. confronted with the report. bus the second personal once for reasons but denied station from the the bus Clancey was told not to remove firing favored Ms. Chandler again working after hours. Ms. Urso called Ms. Urso. Clancey by but was overruled parked be buses were to the serviсe station said that the to remove no one was evening there after the runs and that morning. until the next them Chandler, before was fired
According to Ms. Clancey had com- day his noon run the of the accident. at Clancey arrived run. morning missed his When pletely school, he was thought him that she Ms. Chandler told he far was concerned that as as she totally unreliable and his given was was terminated then and there. check, keys the van threw the to wages accrued and he by by Ms. Urso on Ms. Chandler’s Ms. Chandler told desk. left, time phone Clancey. that she fired At the took Ms. parked the van was at the service station. Chandler following to learn the keys night, only home with her that been know how it had day accident. She did not driven, since she keys. had the aIn Clancey’s
Pamela Sabo fellow drivers. was one Clan- deposition plaintiff, offered she characterized did cey as wild man liked to take chances but who who good very not have luck. she reported
Ms. Sabo Ms. Ms. Sabo said to Chandler. bus drove had been told Ms. that the she Chandler time belonged The rest of the station on weekends. she parked possible, Ms. Sabo it so as close her home get morning. could at next followed easily the Ms. for practice. During day, similar the bus there errands, once run personal Sabo’s use. She at times used to Ms. an including thought errand for Ms. Urso. Ms. Sabo felt going Urso and Chandler knew what was on—she personal that the use of the vehicles authorization for At not to it. one implied, she was told do because never if her she point told either Urso or Ms. Chandler she would going personal were bus for reasons use the the word gas havе to in it. after the accident was put Only when passed that the station kept buses were be on a run. not out helped accident she
Ms. Sabo day said that on *15 3:30 She halted about Joyce Murphy her furniture. move 4 p.m. and returned the bus to preschool evening for the run. bus; Clancey had also been his moving furniture with Ms. Sabo could if Clancey not remember followed her back to the preschool for evening nothing run. But out of the ordinary occurred taking day, the children home that so Ms. Sabo that Clancey evening assumed made his run. She met him back apartment at the furniture was where the being removed. had his bus with him again.
Ms. Sabo permis- said that told her he received sion from Ms. Urso to Ms. help use the buses to move furniture, Murphy’s surprised and that he was that he received Ms. approval. Urso’s He told Ms. Sabo that he was surprised that give “she didn’t him any grief.” Tario,
The plaintiff al- offered the affidavit of Sue though Tario’s exact with the was not relationship parties explained. Ms. following Tario said that the accident Coleman, Thomas Clancey’s replacement, used his bus on one occasion to drive her to the theatre. Thomas Coleman’s affidavit was also plaintiff. offered plan he learned that
Before the accident 15, 1971. driving preschool September for the on ning quit Coleman and Ms. take arranged Urso for Coleman to Clancey’s place days A few before beginning day. the accident starting day Coleman reconfirmed his with Ms. On day Chandler. of the accident Coleman saw driving the it. day bus with furniture in The next Ms. Urso called Coleman him early and asked to start because of accident. Coleman 2. Septembеr started as a driver on
Additional also evidence before the circuit court should have been considered. The circuit court struck several Sabo, sentences plaintiff, affidavits of the Tario, (73 and Coleman Rule 191 comply for failure to Ill. R. 191). swept But It the court’s action was too broad. up strike good with the bad. was correct to The court portions those mere conclu affidavits which were (Wanous sions instead of facts admissible evidence. *16 463 the tainted 545, only 547.) But 412 Ill. (1952), Balaco phrase aWhere be struck. had to of the affidavits portions excised, but it to be or clause was conclusional be, should and could the affidavits remaining portions of been, have saved. affidavit her Ms. Tario swore example,
For when day on p.m. at 3:30 driving the bus Clancey she saw Urso, only job the accident his as a bus driver on for as a struck to be statement had of the portion italicized affiant was But the opinion. or an unfounded conclusion saw. she personally things to those competent testify have should not observation personal Her statements of Urso Likewise, Clancey or statements been stricken. hearsay and were inadmissible repeated that an affiant decla- stricken, observations correctly personal but and should could be apart spoken rants from the words been considered. have thus also should the affidavits following portions summary judg- for
have been considered on the motions ment. 1 September the bus on Clancey driving
Sue Tario saw and Thomas Clancey at about 3:30 Ms. Tario saw p.m. early on of the accident together Coleman at the scene his to Coleman. give keys 2. September Clancey tried bus to use the twice Thomas had seen Coleman saw Coleman to the theatre with friends. drive 1 about at September driving Clancey’s the bus on route saw p.m. 3:30 at 5:30 Coleman p.m. again and After the p.m. again in it at driving the bus with furniture Coleman Once Coleman. accident talked with he replacement, Clancey’s school as working started for the kept pleased, he parked driving the bus he was wherever reasons, personal in his used for keys posession, store. grocery including trips to the theatre only a justified circuit court The evidence before the the Civil 57 of section Under partial summary judgment. 110, (Ill. 1979, Practice Act par. 57), summary Rev. Stat. ch. judgment granted will be if the affidavits only pleadings, depositions genuine on file reveal that there is no issue of material fact and that the is entitled to movant (Schedlerv. Rowley Transporta Interstate as a matter of law. Christopher tion Co. (1977), 68 Ill. v. B.C. Carruthers 7, 13; 2d & Co. 376, (1974), 380.) 57 Ill. The affidavits and 2d depositions against moving party. are to be construed Because summary judgment is such a drastic method case, disposing of a unless the employed should not be is free from doubt. See Dakovitz right of moving party Arrow Road Construction Co. (1975), App. 26 Ill. *17 61. only I alleged agent,
Count of an and the negligence real issue of Urso and liability under that count so far as the acting the schools is was Clancey concerned was whether within the the time of the scope employment of his at through accident. Ms. The defendants evidence presented Urso’s Ms. Chandler’s deposition through affidavit and and ex- deposition employment that scope of the drivers’ schools. tended to and from the only driving the children part, Ms. Sabo’s that assertion deposition contradicted Urso. Sabo run errands for claiming that she had at times that the But there was Urso’s affidavits no contradiction friends move helping bus drivers’ duties extend to did not fired, Ms. Thus, furniture. if had not been Clancey even contends, not have furniture would moving her there were been within the his While scope employment. had re- drivers question conflicts on the of whether reasons permission personal ceived to use the buses for fired, on which conflicts precise Clancey time when summary judgment appellate deny court relied I, of Clan- scope count on the disagreement there was no the assistance not include cey’s employment and that did the evidence Accordingly he rendered to Ms. Murphy. driving the bus time the accident at the not acting agent as an of Urso or the schools so as to make them liable was uncontradicted. Because there was no genuine I, issue of material fact to be tried on count summary judgment was and the proper, appellate court erred remanding this count for trial.
Count II alleged wilful and or en- negligent wanton trustment; agree we appellate with the determi- court’s nation that summary this judgment on count was not proper. This cause of action at least that the required plaintiff show that the vehicle was entrusted with the approval. owner’s party Neither showed a case free from doubt because neither problem permission resolved the to use the bus for personal reasons. Ms. Urso claimed that vehicle, had stolen the that he had been fired before the accident. Ms. agreed Chandler had fired, been settle, but the two depositions could not their affidavit, on a common In firing. date reason for the addition, there was evidence September evening that the run went smoothly, disruption without the if likely occur one of the three drivers employed by the schools had been Thus, missing. there appears to be a conflict over whether Clancey had been fired. whether,
There was if also conflict over fired, not been Customary he had to use the bus. personal use of Ms. adamantly the buses was denied Sabo, Urso Ms. Chandler but asserted *18 Tario, they and Coleman. Ms. Ms. Sabo said Murphy and were approval told Ms. Urso’s to use Clancey that he had bus, the admissibility. but the of statements are dubious Nevertheless, moving, the participated Sabo also that Ms. using the school bus She testified which she drove. the Urso and Ms. use of personal Chandler knew about the they buses never drivers and sanctioned because record, that stopped say this use. On this it is to impossible the bus either was or was not entrusted to credibility. Urso’s approval without the witnesses’ resolving II. On that only Issues of triable remain on count fact for must to circuit court count cause be remanded however, I, summary On count proceedings. partial further judgment granted. should have been
CONCLUSION 53425, In No. of the circuit and judgments cause appellate courts are is remanded reversed and cause the circuit In No. court for further cause proceedings. 53547, the as to judgment the circuit court is affirmed count I judgment but reversed to count II. аppellate court is I but on count reversed on count affirmed II. The is for further cause remanded the circuit court count II. proceedings on — remanded.
53425 Reversed — court Appellate affirmed in part; reversed part circuit court affirmed part; and reversed part remanded. cause MORAN, dissenting: JUSTICE the insurer’s agree I with the majority’s conclusion Clancey, initially prevent- interests conflicted with that personal ing the insurer from defending believe, however, I the insurer should injury action. the conflict sought have resolve declaratory obligations policy. and to determine under Maryland Casualty Peppers Co. 64 Ill. (1976), In seeking this declara propriety court examined the and, consequently, coverage tory judgment to determine of insurance. two duty policies to defend undеr inten policies injuries for specifically excluded injury action tionally underlying personal inflicted. The Peppers against the defendant brought by plaintiff Mims Mims place took when shooting resulted from a which *19 467 restaurant into Pizza Hut to break apparently attempted court, declaratory Peppers. The trial owned action, intentionally Peppers judgment found that therefore, that, coverage no caused to Mims and injury This court reversed policies. available under the insurance in the declara finding injury the trial of intentional court’s action, it abuse of that was an tory judgment holding This court “premature.” discretion and such action was that im also that action declaratory judgment found the the ultimate facts proper because was one of issue “[t]his personаl in Mims upon predicated which is the recovery Co. Casualty v. injury against Peppers.” Maryland action 187, 197. (1976), 64 Ill. 2d Peppers 132, in 74 Ill. 2d the (1978), v. Paul
Similarly Thornton insured, as question of the insurer’s defend the obligation insurance, upon turned coverage well as the policy under or “battery” as a as classification of the insured’s action (See an intentional act. Insu Thornton Illinois Founders (1981), only Ill. covered 365.) policy rance Co. excluded specifically acts unintended the insured and coverage for out of assualt personal injury “arising battery,” insurer must seek a determining In whether this court fol declaratory judgment obligations, its be lowed such an action would Peppers and found that premature. declaratory a court in a were to determine
“[I]f insured’s conduct did action policy because come within the of the be bind battery, constituted a this would declaration be ing injury in action personal on the insured insured, injured and would party tween the liability issueof probability all be determinative (1978), 74 Ill. 2d that suit.” Paul Thornton v. 157. was not the insurer court
Consequently, held obliga- as to obligated declaratory judgment to seek a further, refusal and, insurer’s that the policy tions under the to defend the insured action did not personal injury noncoverage estop asserting from defenses garnishment proceedings. reasoning majority erroneously applies above
as the action appropriateness declaratory judgment to of a Thornton, Peppers present to the circumstances. Unlike question coverage policies the the determinative of under is in underlying here the fact the ultimate issue of personal injury majority brought by Murphy. suit in correctly sets issues an general out the rule: “Where the underlying declaratory suit a action are judgment a separable, the of in collateral deciding question coverage (88 455.) In the proceeding prejudices no Ill. 2d at party.” case, present action determine declaratory policies under the of insurance would have fo is, cused solely agency on the issue whether —that Clancey drove the van with owners. This issue is separable issue of from ultimate underlying personal suit, injury negligence of Clancey. in resolution the agency any way issue would not prejudice regard in issue of Moreover, Clancey’s negligence the van. once the driving agency determined, issue is previous alleged the insurer’s conflict of If longer interest no exists. cover age exist, under the is policy may found to the insurer then defend Clancey negligence. on the issue of his The interest of both the insurer and be the same —to find Clancey would Clancey not guilty negligence liability. so to avoid all
I believe that the insurer’s case to present failure seek a policy determination of its under its obligations declaratory judgment denying it from estop action should that policy garnishment covered of the Thornton rule proceeding. This expansion court’s allowing an insurer to under escape obligations to defend a policy of seri- dangerous precedent insurance creates a ously diluting insurer obligation the contractual of an so. to do promise express an under insured an defend dis- in this joins GOLDENHERSH CHIEF JUSTICE sent.
(No. 54168. CLEMMONS, TRAVELERS v. THE ANTHONY Appellee, COMPANY, INSURANCE Appellant. 18, 1981.
Opinion December filed