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Zurich Insurance Co. v. Amcast Industrial Corp.12/19/2000
Appeal from the Circuit Court of Cook County.
Honorable John Laurie, Judge Presiding.
Plaintiff Zurich Insurance Company ("plaintiff" or "Zurich") appeals from the judgment of the circuit court of Cook County dismissing its lawsuit as subrogee of Jerome Patrick ("the insured" or "Patrick") against Amcast Industrial Corporation ("defendant" or "Amcast"). On appeal, Zurich argues that the trial court erred in finding that its suit to recover for property damage is barred as res judicata due to an earlier suit by Patrick against Amcast for personal injury arising out of the same accident. We reverse.
The initial facts of this case from Zurich's complaint follow. Zurich is an insurance carrier which insured a truck owned by Patrick. On or about February 22, 1995, Patrick was driving his truck from Amcast's place of business in Wisconsin to Cicero, Illinois , hauling cargo which consisted of "baskets of aluminum casting." The cargo in the truck allegedly shifted during the trip due to Amcast's negligence in not securing it properly. As a result, Patrick lost control of his truck which crashed and rolled over on its side. Zurich subsequently paid Patrick the sum of $21,653.75, for the damage to his truck, pursuant to its obligations under the insurance policy. Zurich then became subrogated to Patrick's right to recover against Amcast for the damage to Patrick's truck.
The procedural facts of this case are not in dispute. On January 6, 1999, Zurich filed a complaint against Amcast alleging that Amcast's negligence in failing to properly secure the cargo in Patrick's truck caused the weight of the cargo to shift during the trip and the truck to crash. Amcast filed a motion to dismiss pursuant to section 2-619(4) of the Code of Civil Procedure (735 ILCS 5/2-619(4)(West 1999)), on May 14, 1999, arguing that the lawsuit was barred by res judicata due to an earlier lawsuit filed against Amcast by Patrick. This earlier lawsuit (the "DuPage litigation") was filed in the circuit court of DuPage County on June 16, 1995, and was styled Jerome S. Patrick v. Amcast Industrial Corporation, 96 AR 1718. In its response to the motion to dismiss, Zurich offered an affidavit of the attorney who represented Patrick in the DuPage lawsuit against Amcast. The affidavit averred that even though property damage is mentioned in the DuPage complaint, damages were only recovered for Patrick's personal injuries and the damage to Patrick's eyeglasses. The affidavit disavowed any recovery for or litigation of the damage to Patrick's vehicle. The DuPage litigation was resolved through arbitration and Patrick was awarded $11,090.
In the instant case, the trial court granted Amcast's motion to dismiss on June 8, 1999. Zurich then made a motion to reconsider on July 7, 1999. In its response to this motion, Amcast included the complaint from the DuPage litigation and noted that the complaint in the DuPage lawsuit states that, "as a direct and proximate result of one or more of the forgoing negligent acts or omissions, plaintiff's semi- tractor was damaged so that it was costly to repair." Zurich's motion to reconsider was denied on September 2, 1999. This appeal followed.
"A section 2-619 motion to dismiss affords a defendant a means of obtaining a summary disposition when the plaintiff's claim can be defeated as a matter of law or on the basis of easily proved issues of fact." McGee v. State Farm Fire & Casualty Company, 315 Ill. App. 3d 673, 680, 734 N.E.2d 144, 150 (2000). "A section 2- 619 motion to dismiss admits all well-pleaded facts in the complaint" and " ll documents submitted in support of the motion must be considered in a light most favorable to the nonmoving part
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