• 1, 2 In asserting the affirmative defense of noncooperation, the burden is on the insurer to prove that it acted in good faith to secure the attendance of the insured and that the insured's failure to appear was due to his refusal to cooperate. ( Ray v. Johnson, 81 Ill. App.2d 456, 225 N.E.2d 158.) An insurer is not liable for a judgment rendered against its insured if the insured willfully failed to cooperate by refusing to appear at trial after receiving adequate notice. ( Schneider v. Autoist Mutual Insurance Co., 346 Ill. 137, 178 N.E. 466; Mertes v. Central Security Mutual Insurance Co., 103 Ill. App.2d 171, 242 N.E.2d 905.)

"In asserting the affirmative defense of noncooperation, the burden is on the insurer to prove that it acted in good faith to secure the attendance of the insured and that the insured's failure to appear was due to his refusal to cooperate. ( Ray v. Johnson, 81 Ill. App.2d 456, 225 N.E.2d 158.) An insurer is not liable for a judgment rendered against its insured if the insured willfully failed to cooperate by refusing to appear at trial after receiving adequate notice. ( Schneider v. Autoist Mutual Insurance Co., 346 Ill. 137, 178 N.E. 466; Mertes v. Central Security Mutual Insurance Co., 103 Ill. App.2d 171, 242 N.E.2d 905.)

To the contrary, it would appear from the cases that delivering a single communication is insufficient to show reasonable diligence. See Johnson, 365 N.E.2d at 14 (holding that the insurer's “form letter … informing assured of her trial date one month later was an insufficient effort on its part to secure her presence there”); Ray v. Johnson, 225 N.E.2d 158, 159-61 (Ill.App. 1967) (in holding that the insured did not refuse to cooperate, reasoning that a letter to the insured, to which the insured did not respond, was the only notice provided of the trial date). In sum, no party is entitled to summary judgment on AIFE's declaratory judgment claim because genuine factual disputes preclude the court from resolving whether Rypninskyi breached the cooperation clause under the standard imposed by Illinois law.

Nevertheless, the burden of proving a policy defense in Illinois is placed on the insurer-garnishee. Ray v. Johnson, 81 Ill. App.2d 456, 225 N.E.2d 158 (1967); Anderson v. Lawlor, 27 Ill. App.3d 150. The rationale behind this rule is that a policy defense is in the nature of an affirmative defense which must be pleaded and proven by a preponderance of the evidence by the party urging the same. 38 C.J.S., Garnishment § 228, p. 476.

" To the same effect see: Pennsylvania Threshermen and Farmers Mutual Casualty Insurance Co. v.Owens, 238 F.2d 549, 550-551 (4th Cir 1956); Iowa Home Mutual Casualty Co. v. Fulkerson, 255 F.2d 242 (10th Cir 1958); Carpenter v. Superior Court, 101 Ariz. 565, 422 P.2d 129, 132, 134 (1967); Ray v. Johnson, 81 Ill. App.2d 456, 225 N.E.2d 158 (1967); Allstate Insurance Co. v. Coe, 248 NYS2d 29, 21 A.D.2d 34 (1964); Oberhansly v. Travelers Insurance Co., 5 Utah 2d 15, 295 P.2d 1093 (1956); see also Tennessee Farmers Mutual Insurance Co. v. Wood, 277 F.2d 21, 34 (6th Cir 1960). This court, in State Farm Mutual Automobile Insurance Co. v. Farmers Insurance Exchange, 238 Or. 285, 387 P.2d 825, 393 P.2d 768 (1964), recognized this same rule, at least in effect, in holding, at p 293, that:

These cases, however, are distinguishable because they involve clearly ascertainable claims defendants had against the garnishees. (See Zimek v. Illinois National Casualty Co. (1939), 370 Ill. 572, 19 N.E.2d 620 (garnishment action properly included issue of whether insurer could deny coverage under policy exclusion for persons driving car without permission of insured); Shook v. Tinny (1984), 122 Ill. App.3d 741, 461 N.E.2d 642 (garnishment action properly included issue of whether insurer could deny coverage under policy exclusion for intentional acts); Ray v. Johnson (1967), 81 Ill. App.2d 456, 225 N.E.2d 158 (garnishment action properly included issue of whether insured could deny coverage when insured failed to cooperate with defense of action).) These cases involved denial of an insurance claim with an ascertainable amount requested.

The court noted that the assured's failure to respond to the letters should have put the garnishee on notice that the assured might not appear. The court concluded, therefore, that it was incumbent upon the garnishee to seek additional means in order to insure the availability of the assured, ( i.e., through the issuance of a subpoena.) Similarly, in Ray v. Johnson (1967), 81 Ill. App.2d 456, 225 N.E.2d 158, the court found no refusal to cooperate where a letter was the only notice of the trial date given to the assured. The court ruled that the garnishee had failed to establish diligence in securing the cooperation of the assured since the garnishee was aware that the assured was a poorly educated black man who might not be able to read the letter.

• 5 For an insurer to prove its non-liability upon breach of the cooperation clause, it must establish that it exercised a reasonable degree of diligence in seeking the insured's attendance at the trial and that his failure to appear was due to a refusal to cooperate. ( Ray v. Johnson (1967), 81 Ill. App.2d 456, 225 N.E.2d 158; Penn for use of Riley v. Progressive General Insurance Co. (1966), 74 Ill. App.2d 32, 219 N.E.2d 857.) To show its diligence the company introduced evidence of several communications it had with Santangelo prior to the trial.

• 1-3 The burden of proof is on the insurance company if it seeks to establish breach of a co-operation clause. ( Cuttone v. Peters, 67 Ill. App.2d 1, 4.) The question of co-operation involves not only the good faith of the insured but the good faith of the insurer as well. ( Ray v. Johnson, 81 Ill. App.2d 456, 459; Gregory v. Highway Ins. Co. 24 Ill. App.2d 285, 298.) It is a question of fact, and the determination of the trial court will not be reversed unless manifestly against the weight of the evidence. ( Gianinni v. Bluthart (App.Ct. 1971), 270 N.E.2d 480, 486.)

• 8 However, lack of cooperation is an affirmative defense and the insurer which would rely upon it has the burden of proof. Janssen v. Worthington, 99 Ill. App.2d 125, 129; Ray v. Johnson, 81 Ill. App.2d 456, 459; Penn for Use of Riley v. Progressive General Ins. Co., 74 Ill. App.2d 32, 36; Cuttone v. Peters, 67 Ill. App.2d 1, 4, 214 N.E.2d 499, 501. • 9, 10 To state the matter simply, the defense of noncooperation raised an issue of fact upon which Lake Shore had the burden of proof.