Riverside Insurance v. Kolonich

I respectfully dissent. The majority reverse and remand on the grounds that summary judgment was improvidently granted and that an evidentiary hearing is necessary to determine if waiver or estoppel apply.

The underlying negligence action was commenced against plaintiffs insured on October 23, 1980. The insurance company caused an answer to be filed on its insured’s behalf on November 6, 1980. This action for declaratory relief was filed some three months later on February 5, 1981. Only Kolonich, the plaintiff in the underlying action, appealed.

Under the subject contract of insurance, the…