THIRD DIVISION
DECEMBER 11, 1996
No. 1-95-0519
WILLIAM PIRMAN, )
) APPEAL FROM THE
Plaintiff-Appellant, ) CIRCUIT COURT OF
) COOK COUNTY.
v. )
) No. 92 L 13617
)
A & M CARTAGE, INC., DANIEL ) THE HONORABLE
CHIARITO and ROBERT LEE, ) PHILIP A. FLEISCHMAN,
) JUDGE PRESIDING.
Defendants-Appellees. )
JUSTICE GORDON delivered the opinion of the court:
Plaintiff William Pirman filed a complaint against
defendants A & M Cartage, Inc. (hereinafter A & M), Daniel
Chiarito and Robert Lee, seeking to recover for injuries he
suffered when he was struck at a construction site by a truck
allegedly driven by an employee of A & M, either Chiarito or Lee.
Defendants failed to appear, answer, or otherwise plead in
response to plaintiff's complaint and were therefore defaulted.
Judgment was entered against them jointly and severally in the
amount of $950,000. Defendants subsequently filed a petition to
vacate that judgment pursuant to section 2-1401 of the Illinois
Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)), which
the trial court granted, and plaintiff now appeals from that
order pursuant to Illinois Supreme Court Rule 304(b)(3) (155 Ill.
2d R. 304(b)(3)).
It is undisputed that this action was originally filed on
October 30, 1992. In his complaint, the plaintiff alleged that
on October 30, 1990, he was working at a construction site in
Tinley Park, Illinois. Plaintiff further alleged that on that
day, either defendant Chiarito or Lee was driving a truck for A &
M at that construction site and negligently ran into plaintiff.
Plaintiff sought to recover damages for his injuries from either
Chiarito or Lee under a theory of negligence, and from A & M for
its employee's negligence under a theory of respondeat superior.
On November 18, 1993, because defendants failed to appear, answer
or otherwise plead in response to plaintiff's lawsuit, the trial
court entered orders of default against each defendant and
scheduled the matter for the prove-up of damages in December
1993. On December 22, 1993, at the conclusion of the prove-up
hearing, the trial court entered a default judgment against all
three defendants, jointly and severally, in the amount of
$950,000, plus costs.
It is also undisputed that on October 13, 1994, nearly ten
months after the entry of the December 22, 1993 default judgment
against the defendants, plaintiff sought to enforce that judgment
by issuing citations to discover assets to the defendants. On
November 21, 1994, defendants filed their section 2-1401 petition
to vacate the default judgment.
In their section 2-1401 petition to vacate, defendants
argued that they had a meritorious defense to plaintiff's lawsuit
because neither Chiarito nor Lee were involved in plaintiff's
alleged accident; that they had exercised due diligence prior to
being defaulted by attempting to defend themselves through their
liability insurance carrier; that they had been diligent in
presenting their section 2-1401 petition to vacate at their first
opportunity to do so; and that the equities weighed in their
favor to vacate the $950,000 default judgment. In support,
defendants submitted the affidavits of August Badali, president
of A & M; Marge Badali, controller of A & M; Steve Badali, vice
president and general manager of A & M; defendants Lee and
Chiarito; Russ Cawthon, A & M's insurance broker; and Geary
McBurrows, an adjuster with A & M's liability insurance carrier.
August Badali, president of A & M, averred by affidavit that
neither defendant Chiarito nor Lee were involved in the accident
which was the subject of plaintiff's lawsuit. Badali stated that
Chiarito had denied any such involvement, and that according to
the A & M time sheet and dispatch record attached to his
affidavit, defendant Lee was more than five miles away from the
scene of the alleged accident when it occurred.
August Badali further averred that A & M was first notified
of the plaintiff's alleged accident in an October 1992 telephone
conversation between A & M's vice president and general manager,
Steve Badali, and an unidentified third party. August Badali
further stated that, as president of A & M, he was familiar with
the procedures which A & M followed when it has been served with
a summons and complaint. It was his responsibility to personally
forward all summonses, complaints and court papers to A & M's
insurance broker, Russ Cawthon. In early November 1992, Steve
Badali gave August Badali the summonses and copies of plaintiff's
complaint which had been served upon Chiarito and Lee, and within
one week thereafter, August mailed those documents to Cawthon.
On March 10, 1993, August's wife, Marge Badali, the controller of
A & M, was served with summons and plaintiff's complaint on
behalf of A & M, and August forwarded those service documents,
too, to Cawthon within one week of that service. August also
forwarded all subsequent letters written to A & M by plaintiff's
attorney to Cawthon within a week of their receipt, including the
motion for default filed by plaintiff and the November 18, 1993
entry of the order of default thereon.
August Badali further averred that on several occasions, he
asked Cawthon whether he had forwarded the suit papers and other
legal documents which he received pertaining to plaintiff's
lawsuit to CNA, and Cawthon assured August that he had and that
CNA was taking care of the matter. Prior to October 1994, when
plaintiff served Marge Badali with the citation to discover
assets, August did not know that a $950,000 default judgment had
been entered against A & M or against any other defendant. Until
that time, August believed that his insurance carrier was
defending A & M and, in particular, was handling the November 18,
1993 default orders against the defendants. According to August
(and to Marge Badali in her affidavit), defendant Chiarito never
informed him of the $950,000 default judgment, although as noted
below, Chiarito averred inconsistently as to whether he notified
A & M of that judgment or only of the November 1993 default
orders preceding that judgment.
Steve Badali, vice president and general manager of A & M,
stated in his affidavit that in September or October of 1992, he
received a telephone call from an individual who identified
himself as "representing A & M." The caller described
plaintiff's 1990 accident to Steve and inquired as to whether
Steve knew about it. Steve told the caller that he was not aware
of that accident, but added that Chiarito and Lee may have on
occasion driven trucks at the construction site in question.
However, Steve specified in his affidavit that he did not tell
that caller or anyone else that Chiarito and Lee drove trucks at
that construction site on the date of plaintiff's injuries.
Defendant Lee averred in his affidavit that he was not
involved in or had any knowledge concerning the subject accident.
Lee further averred that the aforementioned time sheet and
dispatch report, also attached to his affidavit, reflected that
on the day and time in question, he was driving his truck more
than five miles away from the scene of plaintiff's alleged
accident. Lee averred that he received substitute service of
summons and plaintiff's complaint at his home on November 10,
1992. A few days later, Lee forwarded the summons and complaint
to the A & M dispatcher. According to Lee, the dispatcher
advised him that "[he] should not worry about the complaint
because [Lee's] truck was not involved in the accident and they
would forward the matter on to A & M's insurance carrier." Lee
never received any other documents of any nature from any party
pertaining to plaintiff's lawsuit.
Defendant Chiarito denied in his affidavit that he had any
knowledge of or involvement in plaintiff's accident. Chiarito
averred that he was served with the summons and complaint in this
lawsuit on November 5, 1992, and he delivered it immediately to
Steve Badali, who told him that A & M would handle the defense of
the lawsuit on behalf of all defendants through its insurance
carrier. Chiarito also stated that Steve Badali informed him
that he had spoken with someone from the office of plaintiff's
attorney and had informed that person that Chiarito and Lee were
driving trucks for A & M in the area where the accident occurred.
Chiarito further stated that he received two letters, one on May
14 and the other on June 22, 1993, from plaintiff's attorney,
which advised him that no appearance or answer had been filed in
the lawsuit and that a judgment would be entered against him if
he did not take immediate action. According to Chiarito, August,
Marge, and Steve Badali told Chiarito not to worry about those
letters because the matter had been turned over to A & M's
insurance broker, Cawthon. In October 1993, plaintiff's attorney
sent Chiarito a copy of plaintiff's November 18, 1993 motion for
default judgment, and in response, Chiarito called Marge Badali
and later Cawthon, and informed them of the imminent motion.
Chiarito thereafter spoke with either August or Marge Badali, who
informed him that the November 18, 1993 orders of default had
been forwarded to Cawthon and that the insurance company would be
handling the matter.
Chiarito also averred that on May 13, 1994, while
represented by independent counsel, he filed a section 2-1401
petition on his own behalf to vacate the November 18 order.
Chiarito filed an amended petition to vacate on August 17, 1994.
However, the trial court struck Chiarito's section 2-1401
petition because no one appeared on Chiarito's behalf at the
hearings on his petitions.
Russ Cawthon, A & M's insurance broker, averred in his
affidavit that he procured A & M's liability insurance policy for
the 1990 policy year. It was his regular business practice and
procedure to forward all summons, complaints and court papers
received by an insured to the appropriate insurance carrier
within two days after receipt. In November 1992, Cawthon
received the summonses and copies of plaintiff's complaint which
were served upon Chiarito and Lee from A & M, and in March 1993,
he received the summons and complaint served upon A & M's
controller, Marge Badali. In November 1993, he received a copy
of plaintiff's motion for default from A & M. In December 1993,
he received a copy of the November 23, 1993 letter from
plaintiff's attorney, which indicated that a default had been
entered against A & M and that a prove-up hearing would be
conducted on December 17, 1993. Cawthon forwarded all of the
above-referenced documents to CNA's office in Reading,
Pennsylvania within two business days after their receipt.
Geary McBurrows, an adjuster with the CNA branch claims
office in Downers Grove, Illinois, stated in his affidavit that
his Downers Grove office was responsible for adjusting law suits
which are filed in Cook County, Illinois against insureds of
Continental Casualty Insurance Company, Inc, a CNA company and
plaintiff's liability insurance carrier. He stated that the CNA
office in Reading, Pennsylvania (to which Cawthon had forwarded
all of A & M's legal documents pertaining to plaintiff's lawsuit)
had no responsibility whatsoever for the handling or adjusting of
A & M's claim with respect to plaintiff's lawsuit. McBurrows
further averred that his Downers Grove office first received
notification of plaintiff's suit, the default order, and the
default judgment on November 1, 1994, and that the matter was
assigned to him for handling. On November 17, 1994, after
investigating whether A & M would be covered with respect to
plaintiff's lawsuit, McBurrows assigned the matter to defendants'
current counsel, Querrey & Harrow, under a reservation of rights.
In his response to defendants' section 2-1401 petition,
plaintiff submitted the affidavits of Philip H. Corboy, Jr., his
trial counsel, Karen Cozen, legal assistant and secretary to
trial counsel, Dennis Fredrickson, a detective hired by his trial
counsel, and of defendant Chiarito.
Plaintiff's trial counsel averred in his affidavit that
Steve Badali told a representative of counsel's law firm that
defendants Chiarito and Lee were driving trucks at the
construction site where plaintiff was injured on the date of
plaintiff's accident. His affidavit also averred that two
eyewitnesses (unidentified) saw an A & M truck strike the
plaintiff on that date. This averment concerning these
eyewitnesses was subsequently stricken by the trial court without
any objection from the plaintiff. Trial counsel further averred
that on December 20, 1991, he sent a letter to A & M advising it
that he would be filing plaintiff's lawsuit and that on October
30, 1992, he filed plaintiff's complaint. Service was obtained
on Chiarito on November 5, 1992, on Lee on November 9, 1992 and
on A & M on March 10, 1993. On May 14 and again on June 22,
1993, Corboy sent letters to defendants advising them that they
had neither appeared nor answered and that he would be seeking a
default judgment for the full amount of damages claimed. On
October 29, 1993, Corboy sent defendants notice of plaintiff's
special motion for default by certified mail, and noticed up that
motion for November 12, attaching copies of the sheriff's return
of service to the motion indicating service upon each of the
defendants. The certified letter to defendant Lee was returned
unclaimed.
In his affidavit, Corboy further averred that on November
23, 1993, he wrote to each defendant enclosing copies of the
November 18, 1993 orders of default against them. In that
letter, he also advised defendants of the hearing date for the
prove-up of damages. Plaintiff proved up damages on December 22,
1993, resulting in the entry of a default judgment against
defendants in the sum of $950,000. The Corboy affidavit states
that copies of that judgment were sent to the defendants, but
does not purport to provide the date on which he sent such notice
of the judgment to defendants.
The averments in trial counsel's affidavits were supported
by the additional affidavit of his legal assistant, Karen Cozen,
except that Cozen's affidavit did not include any reference to
any notice given to defendants of the December 22, 1993 judgment.
Additionally, Cozen stated in her affidavit that the letters sent
to A & M were mis-addressed to the 8400 block rather than to the
8300 block of the street on which A & M is located, but that no
mail was returned to her office despite that error. Dennis
Fredrickson, the detective retained by plaintiff's trial counsel,
averred in his affidavit that in late October 1992 he telephoned
Steve Badali of A & M, who told him that Chiarito and Lee were
driving trucks for A & M at the construction site on the date of
plaintiff's accident.
In addition, plaintiff submitted a subsequent affidavit of
defendant Chiarito, in which Chiarito averred that in late
December 1993 or early January 1994, he had informed Marge or
August Badali that a $950,000 default judgment had been entered
against all of the defendants to plaintiff's lawsuit. However,
in an explanatory affidavit submitted thereafter by defendants in
rebuttal, Chiarito retracted that statement. In that explanatory
affidavit, Chiarito asserted that plaintiff's counsel had
prepared the affidavit in which that statement appeared, and that
when Chiarito read the affidavit prior to signing it, he
misunderstood the word "judgment" to refer to the November 18,
1993 order of default against him. Chiarito reiterated that he
had only informed the Badali's of the November 18, 1993 default
orders, that he never informed the Badali's of the $950,000
default judgment entered in December 1993, and that he himself
was not aware of that judgment until December 1994.
On January 6, 1995, the trial court, pursuant to a hearing,
granted defendants' section 2-1401 petition. At that time, the
trial court stated as follows:
"One of the elements in the 1401 petition is due
diligence, and based upon all that the court has read,
all that the court has heard, [and] all the case law
there's absolutely no doubt in the Court's mind that
due diligence was never exercised in this case. ***
However, one of the guiding principles [in] *** the
administration of Section 2-1401 *** [is the] belief
*** that the petition invokes the equitable powers of
the Circuit Court which should prevent enforcement of a
default judgment that would be unfair, unjust, or
unconscionable. The power to set aside a default
permitted [sic] defendant to have his day in court is
based upon substantial principles of right and wrong
and is to be exercised for the prevention of injury and
for the furtherance of justice."
It is from that order that this appeal is taken.
DISCUSSION:
On appeal, plaintiff contends that the trial court abused
its discretion in vacating the $950,000 default judgment against
the defendants. In support, plaintiff argues that defendants
failed to allege a meritorious defense to the allegations of his
lawsuit; that defendants failed to exercise due diligence in
presenting their defense prior to and after the entry of the
default judgment; and that there was no equitable basis for
vacating the default judgment.
Section 2-1401 of the Illinois Code of Civil Procedure
provides a comprehensive statutory procedure which enables a
litigant to obtain relief from final orders and judgments after
the expiration of 30 days from the entry thereof. 735 ILCS 5/2-
1401 (West 1994). A petition under section 2-1401 generally must
set forth specific factual allegations which support the
existence of a meritorious defense, and the exercise of due
diligence by the petitioner in presenting a defense to the
lawsuit and in presenting his petition to vacate. Klein v. La
Salle National Bank, 155 Ill. 2d 201, 613 N.E.2d 737 (1993);
Kaput v. Hoey, 124 Ill. 2d 370, 530 N.E.2d 230 (1988); Smith v.
Airoom, Inc., 114 Ill. 2d 209, 499 N.E.2d 1381 (1986); Cohen v.
Wood Brothers Steel Stamping Co., 227 Ill. App. 3d 354, 592
N.E.2d 59 (1991). The petitioner under section 2-1401 has the
burden of establishing these elements by a preponderance of the
evidence. Klein, 155 Ill. 2d 201, 613 N.E.2d 737 (1993); Airoom,
114 Ill. 2d 209, 499 N.E.2d 1381; Cunningham v. Miller's General
Insurance Co., 188 Ill. App. 3d 689, 544 N.E.2d 441 (1989).
Whether a section 2-1401 petition should be granted depends on
the facts and equities presented, and lies within the sound
discretion of the trial court. Airoom, 114 Ill. 2d 209, 499
N.E.2d 1381; Cunningham, 188 Ill. App. 3d 689, 544 N.E.2d 441.
As such, a reviewing court will not disturb a ruling on a section
2-1401 petition absent the finding of an abuse of discretion.
Klein, 155 Ill. 2d 201, 613 N.E.2d 737; Kaput, 124 Ill. 2d 370,
530 N.E.2d 230; Airoom, 114 Ill. 2d 209, 499 N.E.2d 1381;
Cunningham, 188 Ill. App. 3d 689, 544 N.E.2d 441.
We first address plaintiff's contention that in their
section 2-1401 petition to vacate, defendants failed to allege a
meritorious defense to the allegations in plaintiff's complaint.
Plaintiff urges that the affidavits presented by defendants to
establish their defense were inadequate and lacking in
credibility, and that in any event, plaintiff's counter-
affidavits refuted the existence of a meritorious defense. We
disagree. A petitioner under a section 2-1401 petition to vacate
need only assert sufficient facts which, if believed by the trier
of fact, would defeat the plaintiff's claim. Cunningham, 188
Ill. App. 3d 689, 544 N.E.2d 441. "Whether the defense of [the
petitioner] would ultimately prevail at trial is not at issue in
the section 2-1401 proceedings." Bonanza International, Inc. v.
Mar-Fil, Inc., 128 Ill. App. 3d 714, 719, 471 N.E.2d 221, 225
(1984); Yorke v. Stineway Drug Co., 110 Ill. App. 3d 1009, 1014,
443 N.E.2d 644, 648 (1982) ("We believe that [petitioner's]
allegations are sufficient to satisfy the requirements for the
filing of a section 72 petition; whether [petitioner] ultimately
recovers from [his opponent] is not here at issue").
In the instant case, we cannot find that the trial court
abused its discretion in holding that defendants established the
existence of a meritorious defense to the allegations of
negligence and vicarious liability in plaintiff's complaint. As
noted, defendants submitted the affidavits of defendants
Chiarito, Lee, and of A & M president August Badali. Chiarito
and Lee both denied any involvement in or knowledge of the
plaintiff's accident. Lee additionally attested that the A & M
time sheet and dispatch record attached to his affidavit
reflected that he was more than five miles away from the scene of
the alleged accident when it occurred. August Badali's affidavit
corroborated Lee's statements concerning his time and dispatch
records. In addition, August Badali's affidavit corroborated
Chiarito's statements regarding his involvement insofar as Badali
stated that Chiarito had informed him that he was not involved in
and had no knowledge of the facts of that accident.
These affidavits, if believed, would suffice to defeat the
plaintiff's allegations of negligence against Chiarito and Lee.
Correspondingly, these affidavits, if believed, would also defeat
plaintiff's allegation of negligence against A & M, whose alleged
liability was derivative of that of Chiarito and Lee insofar as
it was premised upon a theory of respondeat superior.
Plaintiff would contend, however, that defendants'
affidavits are insufficient because they fail to deny that any A
& M truck other than one driven by Chiarito or Lee was
responsible for plaintiff's injuries. We disagree. In his
complaint, plaintiff alleged solely that either Chiarito or Lee
drove the truck that hit him, but did not allege in the
alternative that some other A & M truck driver may have been
responsible for his accident. Therefore, if Chiarito, Lee and
August Badali are to be believed, then plaintiff's derivative
claim through Chiarito and Lee against A & M must also fail.
The plaintiff also urges that the averments in the affidavit
of his trial counsel, Philip Corboy, of his detective, Dennis
Fredrickson, and of defendant Chiarito were sufficient to refute
the existence of a meritorious defense. However, as previously
noted, whether a meritorious defense has been established does
not depend upon whether a defense would ultimately prevail at
trial (see Yorke, 110 Ill. App. 3d 1009, 443 N.E.2d 644; Bonanza
, 128 Ill. App. 3d 714, 471 N.E.2d 221), but, rather, is
determined by an examination of the section 2-1401 petition to
ascertain whether, if believed by the trier of fact, the defense
would defeat the plaintiff's claim. Cunningham, 188 Ill. App. 3d
689, 544 N.E.2d 441. Since it appears that the trial court in
fact considered all of the circumstances set forth in defendants'
affidavits, as set forth above, we cannot say that the trial
court's vacatur was an abuse of its discretion. See Yorke, 110
Ill. App. 3d 1009, 443 N.E.2d 644.
Moreover, even if we were constrained to consider the
plaintiff's counter-affidavits along with the defendants'
affidavits in determining whether a meritorious defense was
presented, our conclusion would not change. Although we do not
here intend to comment on what the trier of fact might ultimately
determine at trial, we note that, contrary to plaintiff's
apparent contentions, the counter-affidavits which he presented
are not preemptive. In that regard, although plaintiff's trial
counsel averred that two eyewitnesses identified an A & M truck
as being responsible for plaintiff's injuries, we also note that
that averment was stricken without objection by the plaintiff,
and furthermore, plaintiff did not attempt to produce the further
affidavit of any eyewitness, not even his own, to substantiate
the events alleged in his complaint or to question the denials of
Chiarito, Lee or of August Badali.
However, plaintiff points to the averments of Fredrickson,
his investigator, as being preemptive, wherein Fredrickson
alleged that Steve Badali, A & M vice president, admitted to him
that Chiarito and Lee were driving their trucks at the
construction site at the time of plaintiff's injury. The
plaintiff would contend that this alleged admission is sufficient
to negate the existence of a meritorious defense. We disagree,
since Steve Badali averred in his affidavit that he did not tell
the investigator or anyone else that those men were at that
construction site at the time of the occurrence, but only that
they were there on occasion. Moreover, the presence of Chiarito
and Lee at the time of the occurrence was specifically negated by
their own affidavits, and, with respect to Lee, his absence was
further corroborated by his time sheet and dispatch record.
Plaintiff next contends that the trial court erred in
granting defendants' section 2-1401 petition in light of
defendants' failure to exercise due diligence in presenting a
defense before the entry of the default judgment and in
presenting their section 2-1401 petition 11 months after the
entry of that judgment. In support, plaintiff cites to several
Illinois decisions which have held that a defendant's reliance
upon his insurance carrier which fails to present a defense to a
lawsuit constitutes inexcusable negligence, and that vacatur on
that basis is not justified. See Chmielewski v. Marich, 2 Ill.
2d. 568, 119 N.E.2d 247 (1954); Hunt v. General Improvements,
Inc., 48 Ill. App. 3d 421, 362 N.E.2d 1143 (1977); Burkitt v.
Downey, 102 Ill. App. 2d 373, 242 N.E.2d 901 (1968); Bridson v.
Maywood Cab Co., 79 Ill. App. 2d 295, 224 N.E.2d 572 (1967)
(abstract of op.); Wagner v. Sulka, 336 Ill. App. 101, 82 N.E.2d
922 (1948); Till v. Kara, 22 Ill. App. 2d 502, 161 N.E.2d 363
(1959); Gustafson v. Lundquist, 334 Ill. App. 287, 79 N.E.2d 306
(1948); Bonn v. Arth, 331 Ill. App. 321, 73 N.E.2d 128 (1947).
However, the decisions in Chmielewski, Hunt, Bridson, Wagner,
Till, Gustafson, and Bonn are independently distinguishable. In
each of them, unlike here, either the defaulted insured never
forwarded the lawsuit papers to his insurer, or there was no
evidence of the insured's efforts to contact the insurer to seek
assurances that those papers were received or that a defense was
being presented.
Moreover, while Burkitt comes closest to the plaintiff's
position, even the facts there can be distinguished. There, the
record was clear that plaintiff's counsel notified the defendant
of the entry of default judgment the day after its entry. Here,
not until 11 months following the entry of the default judgment
did plaintiff begin to execute his judgment by issuing citations
to discover assets to defendants in late 1994. Although
plaintiff's counsel alleged that he notified defendants of the
$950,000 default judgment, there is no indication in his
affidavit as to when such notification occurred, nor is there any
corroboration of whether or when such notice was sent in the
affidavit of Karen Cozen, the legal assistant to plaintiff's
counsel. On the other hand, the affidavits of the officers of A
& M disclaim any knowledge or receipt of any notice of the entry
of the judgment prior to the commencement of citation
proceedings. See Elfman v. Evanston Bus Co., 27 Ill. 2d 609, 190
N.E.2d 348 (1963) (delay in executing default judgment more than
30 days after its entry may cast a cloud on the proceedings);
Sterling Myers Ford, 33 Ill. App. 3d 619, 338 N.E.2d 149.
However, more overridingly, plaintiff's cases are
inconsistent with the current trend in Illinois, which has been
to relax the due diligence standard where necessary to prevent
the unjust entry of default judgments and to effect substantial
justice. Our supreme court in Airoom recently rearticulated this
trend, which traces back to the earlier decision of Elfman v.
Evanston Bus Co., 27 Ill. 2d 609, 190 N.E.2d 348 (1963), wherein
the court recognized that a petition to vacate invokes the
equitable powers of the court as justice and fairness require,
even absent due diligence, to prevent the enforcement of defaults
under unjust, unfair, or unconscionable circumstances. See
Airoom, 114 Ill. 2d 209, 499 N.E.2d 1381 (power to vacate default
and permit defendant day in court absent due diligence is based
on substantial principles of right and wrong, and must be
exercised to prevent injury and to further justice); Cohen, 227
Ill. App. 3d 354, 592 N.E.2d 59 (interests of justice and
fairness require relaxation of due diligence requirement in favor
of vacatur); Zee Jay, Inc. v. Illinois Insurance Guaranty Fund,
194 Ill. App. 3d 1098, 552 N.E.2d 1027 (1990) (even absent due
diligence, section 2-1401 relief will be granted if in interests
of justice and good conscience); Bonanza, 128 Ill. App. 3d 714,
471 N.E.2d 221 (despite absence of due diligence, vacatur of
default judgment appropriate where equity, justice and good
conscience require it). See also Mieszkowski v. Norville, 61
Ill. App. 2d 289, 209 N.E.2d 358 (1965) (stating that default
determinations of parties' rights are harsh and drastic, should
be made as a last resort only, and that whether to vacate is a
question of fundamental fairness, not one of procedural
exactitude).
Correspondingly, in keeping with this trend, there is a
parallel line of insurance cases in Illinois, which are more
lenient than those cited by the plaintiff, and which
affirmatively assert that an insured's good faith reliance on his
insurer will satisfy the requirement of due diligence in the
interests of justice. See Frostin v. Radick, 78 Ill. App. 3d
352, 397 N.E.2d 208 (1979); Sterling Myers Ford Sales, Inc. v.
Brown, 33 Ill. App. 3d 619, 338 N.E.2d 149 (1975); Stehman v.
Reichhold Chemicals, Inc., 57 Ill. App. 2d 40, 206 N.E.2d 299
(1965); Boyle v. Veterans Hauling Line, 29 Ill. App. 2d 235, 172
N.E.2d 512 (1961); Dalton v. Alexander, 10 Ill. App. 2d 273, 135
N.E.2d 101 (1956). This line of cases is more consistent with
the above-discussed current tendency in Illinois to relax the due
diligence standard where necessary to effect substantial justice
in ruling on a petition to vacate a default judgment. See
Airoom, 114 Ill. 2d 209, 499 N.E.2d 1381; Cohen, 227 Ill. App. 3d
354, 592 N.E.2d 59; Elfman, 27 Ill. 2d 609, 190 N.E.2d 348; Zee
Jay, 194 Ill. App. 3d 1098, 552 N.E.2d 1027; Bonanza, 128 Ill.
App. 3d 714, 471 N.E.2d 221.
In the instant case, there is no question that under this
analysis, the trial court was within its discretion in finding
that vacatur was necessary to effect substantial justice. In
that regard, here, defendants Lee and Chiarito promptly supplied
defendant A & M with the legal documents which they received, and
were assured that A & M's insurance carrier would take care of
their defense. A & M's president August Badali stated in his
affidavit that, as was his practice with all lawsuits against A &
M, he forwarded all documents pertaining to plaintiff's suit to
his insurance broker, Russ Cawthon, with the expectation that
Cawthon would then forward those documents to CNA and that CNA
would then provide a defense for the defendants. August Badali
also averred that he made repeated inquiries to Cawthon regarding
the handling of A & M's defense. He stated that Cawthon
reassured him that the case was being handled as planned by CNA,
and in particular, that the November 18, 1993 orders of default
were being taken care of.
However, without the knowledge of those involved, Cawthon
forwarded all pertinent documents to a CNA office in Reading,
Pennsylvania, rather than to the appropriate office in Downer's
Grove, Illinois. It was not until November 1994 that the proper
CNA office became aware of the plaintiff's lawsuit, eleven months
after the entry of the $950,000 default judgment against the
defendants, at which time they proceeded to file their petition
for vacatur. These circumstances as disclosed by defendants'
affidavits can well support a finding that defendants acted
reasonably under the due diligence requirements of section 2-
1401. See Frostin, 78 Ill. App. 3d 352, 354, 397 N.E.2d 208, 210
("where a defendant forwards his complaint and summons to his
insurer, then makes repeated inquiries into the progress of his
defense, he has been sufficiently diligent in looking after his
interest that he will be allowed to reopen a default judgment").
For the foregoing reasons, we find that the trial court did
not abuse its discretion in granting defendants' section 2-1401
petition, and the judgment of the Circuit Court of Cook County is
therefore affirmed.
McNULTY and HOURIHANE, JJ., concur.