dissenting:
I feel, as did the dissenting justice in the appellate court, that Mrs. Williams by her affidavit raised material and genuine disputed questions of fact. (See 108 Ill. App. 3d 936, 941 (Barry, J., dissenting).) The questions were whether counsel for Mr. Williams suffered from a conflict of interest he did not disclose to Mr. Williams; whether in this case Mr. Williams had the personal right to waive interspousal immunity; whether he was informed of that right by his counsel or the court; and whether the insurance carrier had the right to rely on interspousal immunity as a defense in the absence of a specific provision to that effect in the insurance policy in addition to the clause requiring the insured’s cooperation.
It is clear that the defendant was not hostile to his wife or her claim. It is also clear that the defendant was in a position adverse to his insurer. Under these circumstances it is not reasonable to assume that the attorney-chosen and provided for Mr. Williams by the insurer would raise the issues presented by Mrs. Williams. Nor is it reasonable to put Mr. Williams to the expense of employing additional counsel to raise issues his own attorney would not raise because of his divided loyalty to Mr. Williams and to the insurance company which employed him.
I believe that Mrs. Williams’ affidavit, timely filed in the circuit court after the entry of the order of dismissal, put the insurer fully on notice of the dissatisfaction she and her husband had with the insurance company’s representation in the case and the issues it raised. I find the majority’s basis for disposition, which would, in effect, have required Mr. Williams to retain separate counsel to present the same motion, entirely too technical. Besides, such a motion would not have informed the insurance carrier of anything of which it had not already been made aware by Mrs. Williams’ affidavit.
Moreover, I believe that Mrs. Williams, herself, as the spouse who was the object of the immunity claim and at the same time the plaintiff in this case, had standing to question at least whether her husband had waived his attorney’s apparent conflict of interest after full and frank disclosure, whether it had been his personal desire to assert a defense which was based on their marriage relationship, and whether the defense belonged to the insurance company or to her husband. Thus, her affidavit setting forth that issue raised a material and genuine disputed question of fact which should have been disposed of as directed by section 2 — 619(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch, 110, par. 2 — 619(c)).
I would therefore decide the appeal on the merits instead of relying on the technical grounds adopted by the majority to avoid decision on the merits. My view on the merits would be to reverse the appellate court for the reasons set forth in Justice Barry’s dissenting opinion. I reach this conclusion also because I believe that, notwithstanding the cooperation requirement, if it was the intention of the insurer and insured to reserve the right to assert the defense of inter-spousal immunity in actions under the policy this should have been expressly stated as part of the bargain in the insurance policy which the insurer drafted.