The court stated in Pogline v. Central Mut. Ins. Co., 280 Ill. App. 5, 8: "We do not believe it was the intention of the legislature or of appellant or the insured in this policy to restrict the owner of the judgment in the pursuit of any remedies that might be open to him, nor is there any reason suggested why the word `may' as used in the statute and in the policy should be construed to mean `shall.'" To same effect, see Bartkowski for Use of Block v. Commercial Cas. Ins. Co., 275 Ill. App. 497. After holding the Missouri direct action statute to be only cumulative, the court said, regarding the preexisting statutory remedies, in Lajoie v. Central West Cas. Co., 228 Mo.App. 701, 710, 71 S.W.2d 803, 809: "The right given by our statutes to enforce the payment of a judgment by reaching and applying to the satisfaction thereof, through execution and garnishment, any indebtedness found to be due the judgment defendant in the hands of third parties has existed for many years.
Even if true, it is irrelevant since ICG is suing as a party to the insurance contract and not as an insured under this policy. Authorities have recognized that the liability of the insurer on its contract of insurance is distinct from the liability which may arise by virtue of its breach of that contract. (18 Couch on Insurance sec. 74.98 (2d ed. 1983); see also Bartkowski v. Commercial Casualty Insurance Co. (1934), 275 Ill. App. 497.) Moreover, Continental's argument that the loss which ICG now claims is not a loss covered by the policy bolsters our conclusion that ICG's action is not an "action to recover on this policy."
In the case before us the first count of the complaint fell within the coverage of the policy. Had the plaintiff recovered a judgment or had the insured made a settlement with the plaintiff, the insurance company, because of its failure to defend the suit, would have been estopped from asserting any defense as to payment based on non-coverage. Canadian R. U. Corp. v. Indemnity Ins. Co., supra; Kinnan v. Charles B. Hurst Co., supra; Brodek v. Indemnity Ins. Co., 292 Ill. App. 363, 11 N.E.2d 228; Bartkowski, for Use of Block v. Commercial Cas. Ins. Co., 275 Ill. App. 497." (Emphasis ours.)
In the case before us the first count of the complaint fell within the coverage of the policy. Had the plaintiff recovered a judgment or had the insured made a settlement with the plaintiff, the insurance company, because of its failure to defend the suit, would have been estopped from asserting any defense as to payment based on non-coverage. Canadian R. U. Corp. v. Indemnity Ins. Co., supra; Kinnan v. Hurst Co., supra; Brodek v. Indemnity Ins. Co., 292 Ill. App. 363, 11 N.E.2d 228; Bartkowski v. Commercial Cas. Ins. Co., 275 Ill. App. 497. Once the insurance company has elected to disclaim coverage under the policy it cannot withdraw that election without the consent of the insured.
Nolan v. Illinois Automobile Ins. Exchange, 219 Ill. App. 531. In Bartkowski v. Commercial Casualty Ins. Co., 275 Ill. App. 497, it appeared that Stephanie Block had recovered a judgment against John Bartkowski for injuries received by her by reason of the negligent operation of an automobile owned by Bartkowski. The Commercial Casualty Ins. Co. had issued a policy of insurance to Bartkowski, which insured him from liability imposed by law on account of injuries suffered by any person by reason of the negligent operation of his automobile and a clause therein provided that an action may be maintained by the injured person against the company, under the terms of the policy, for the amount of the judgment, not exceeding the amount of the policy.