concurring in part and dissenting in part:
I disagree with the majority’s conclusion that the plaintiff cannot recover directly against the insurer under the collision provisions of the policy covering nonowned vehicles for damage to the plaintiff's vehicle when it was in the possession or custody of Country Mutual’s insured, Rogers. Otherwise I concur in the majority opinion.
Marchlik v. Coronet Insurance Co. (1968), 40 Ill.2d 327, 239 N.E.2d 799; is tire leading Illinois case dealing with the right of an injured party to maintain a direct action against an insurance carrier to recover for the tort of the insured. That decision has been adhered to steadfastly by Illinois courts, biit all. cases relying on it involve, as Marchlik did, claims under the liability provisions of an insured’s policy. The majority points out that Country Mutual contends “that the public policy of Illinois prohibits direct action by a claimant against the insurer of an alleged tortfeasor” (emphasis added). I do not dispute this statement of the law,, nor do I disagree with Marchlik.
The plaintiff in this case sought to recover under the collision provisions of a policy in a direct action against the insurer. If a nonowned vehicle, as defined in the collision coverage section of the policy, is damaged in a collision, the insurer is obligated to compensate the vehicle owner for the loss regardless of whether the insured’s conduct wastortious. Under these circumstances; there can be rio intermingling of the liability of the insurer with the liability of the insured, one of the. grounds on which the public policy prohibiting direct actions against an . insurer is rationalized.' (Gianinni v. Bluthart (1971), 132 Ill.App.2d 454, 461, 270 N.E.2d 480.) In the case of collision damage to a non-owned vehicle) the insurer’s obligation arises upon the occurrence of the damage and does not depend on liability or indemnification of the in-, sured. This is true whether the damage was caused by the deliberate or negligent act Cf the insured or. a third party or . by an act of God. For these reasons, this is not the type of direct action against an insurer which section 388 of the Illinois Insurance Code (Ill. Rev. Stat. 1973, oh. 73, § 1000) or any announced public policy of this State prohibit.
■ The majority states that statutory language prohibiting direct actions against the insurer is included in every automobile policy. In the case of the policy issued by Country Mutual to Rogers, this statutory language is found in the liability coverage section of the policy, but is not included in the section of the policy providing collision coverage for nonowned vehicles.
The majority relies on Fidelity General Insurance Co. v. Nelsen Steel & Wire Co. (1971), 132 Ill.App.2d 635, 640, 270 N.E.2d 616, to establish the principle that the insurer agrees to indemnify the policyholder. This is true in the case of a liability policy, the type of policy with which the court was concerned in Fidelity General, but it is not true in the case of collision coverage relating to a nonowned vehicle. Here, the plaintiff as owner of the damaged vehicle is entitled, in my opinion, to sue as a third-party beneficiary under the collision provisions of the policy between Rogers and Country Mutual.
My disagreement with the majority rises from the combination of two factors present in this case: first, that plaintiff need not prove a tort to recover, and second, that Country Mutual failed to undertake the defense of the insured as it was obligated to do. Under the circumstances presented, the law should not place Rogers, the insured, and the plaintiff, the owner of the damaged vehicle, in a position with respect to each other where the plaintiff must refrain from settling with Rogers in order to recover the full amount of its loss, while Rogers, on the other hand, must be plagued by the expense and uncertainties of the litigation because the plaintiff cannot settle with him without forfeiting its claim against his insurance carrier. This is an inequitable result which penalizes the damaged party and the insured by interferring with their desire to settle with each other and which the insurer should not be permitted to bring about by its own intransigence. My views would permit direct actions against insurance companies only in the limited area of claims by vehicle owners for recovery under the collision damage provisions of policies where the vehicle meets the definition of a “non-owned vehicle” and where the insurer refuses to defend.
I disagree with the majority’s suggestion that the plaintiff’s adjustment of the damage for $4000 with Sims and Rogers while the jury assessed the damage at $6500 demonstrates that the jury was liberal with Country Mutual’s purse strings. The resolution of plaintiff’s controversy with Sims and Rogers was the product of a settlement rather than a contested trial, and the plaintiff agreed to it on the assumption it could attempt to recover an additional amount from Country Mutual. The plaintiff introduced three assessments of damage to the body, rear axle and transmission which exceeded $6500.
The plaintiff received $3000 in settlement from Rogers. I do not believe this amount should be subtracted from the jury award because to do so would permit Country Mutual to benefit from its wrongful refusal to defend its insured, a result inconsistent with sound public policy. Sims paid plaintiff $1000 in settlement of a claimed breach of contract for failure to provide insurance for the plaintiff’s vehicle during the time it was in his possession. There is no way of allocating this settlement sum precisely between the actual damages to the car and other costs to the plaintiff stemming from the contract breach, so this amount should not be subtracted from plaintiff’s award. Though this results in the plaintiff receiving an amount in excess of that which the jury found to be its damages, the amounts received in settlement from other defendants should not be credited against the award to give Country Mutual a windfall, allowing it to avoid partial liability, where its refusal to defend caused the dilemma. The jury decided the damages to plaintiff’s automobile were in the amount of $6500. The plaintiff will recover $3000 from Country Mutual in excess of the amount of Rogers’ attorneys’ fees on the judgment against Country Mutual which Rogers assigned to the plaintiff. To avoid requiring Country Mutual to pay plaintiff more than the jury found to be the amount of damage to the automobile, I would reduce the judgment plaintiff was awarded against Country Mutual from $6500 to $3500.
I concur in the court’s decision except for that portion which reverses the summary judgment in favor of plaintiff and against Country Mutual on Count IV of plaintiff’s complaint and the judgment in favor of plaintiff and against Country Mutual on the jury verdict in the amount of $6500. For the reasons stated, I would reduce that verdict to $3500.