It is well established that "[w]here the court has jurisdiction of the subject matter and of the person, a judgment obtained against a minor, where no guardian ad litem had been appointed or where a guardian ad litem who had been appointed had so culpably failed to represent the minor in the action that judgment was entered, is voidable and may be set aside by appropriate proceedings." Rom v. Gephart, 30 Ill. App.2d 199, 207-08 (1961). A petition for relief from the judgment is the appropriate method for requesting that such judgment be vacated. Rom, 30 Ill. App.2d at 208 (referring to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1961, ch. 110, par. 72 (now 735 ILCS 5/2-1401 (West 1998)))).
"[T]he appointment of a guardian ad litem is not a mere formality." Rom v. Gephart , 30 Ill. App.2d 199, 208 (1961), citing McCarthy v. Cain , 301 Ill. 534 (1922). As the representative of a minor, the guardian adlitem is a party to the action.
This is true even if it becomes apparent from matter outside the complaint against the insured that coverage is excluded by some other clause of the policy. George H. Wolff Sons, Inc. v. Aetna Casualty Surety Co., 286 F.2d 862 (7th Cir. 1961); Palmer v. Sunberg, 71 Ill. App.2d 22, 217 N.E.2d 463 (1966); Stein v. Lindquist, 69 Ill. App.2d 340, 217 N.E.2d 438 (1966); McFadyen v. North River Ins. Co., 62 Ill. App.2d 164, 209 N.E.2d 833 (1965); Sims v. Illinois National Casualty Co. of Springfield, 43 Ill. App.2d 184, 193 N.E.2d 123 (1963); Gould v. County Mutual Casualty Co., 37 Ill. App.2d 265, 185 N.E.2d 603 (1962); Rom v. Gephart, 30 Ill. App.2d 199, 173 N.E.2d 828 (1961). Perhaps the most concise statement of this rule is found in McFadyen v. North River Ins. Co., supra, 62 Ill.App.2d at 170-171, 209 N.E.2d at 836:
In contrast, cases in which a guardian ad litem "represent[ed]" a ward as an advocate date to earlier in Illinois's history. 755 ILCS 5/11-10.1 (West 2016) ; In re Estates of Azevedo , 115 Ill. App. 3d 260, 70 Ill.Dec. 950, 450 N.E.2d 423 ; In re Estate of Cohn , 95 Ill. App. 3d 204, 50 Ill.Dec. 683, 419 N.E.2d 951 ; Roth , 52 Ill. App. 3d 220, 10 Ill.Dec. 54, 367 N.E.2d 442 ; see also Rom v. Gephart , 30 Ill. App. 2d 199, 208, 173 N.E.2d 828 (1961). The more recent cases provide a more fitting context for viewing the court's order here than outdated cases like In re Estates of Azevedo or Gephart .
See also Chandos, Inc. v. Samson, 150 W. Va. 428, 434, 146 S.E.2d 837, 841 (1966) (No valid judgment can be entered against an incompetent, unless he is "properly represented" in a suit or action.); Rom v. Gephart, 30 Ill. App.2d 199, 208, 173 N.E.2d 828, 832 (1961), (The appointment of guardian ad litem is not a mere formality.); Laxy v. Laxy, 3 Ill. App.2d 156, 164, 120 N.E.2d 881, 885 (1954), (The duties of a guardian ad litem are not perfunctory.); Lugar Silverstein, West Virginia Rules of Civil Procedure, p. 163 (Michie 1960), ("A default judgment may not be entered under Rule 55(b)(2) against a person under disability unless he is properly represented, as provided in this Rule (17)."); 6 Moore's Federal Practice, 55.05[4] (2d ed. 1995), ("If the infant or incompetent defendant is not represented by a general fiduciary who has appeared in the action, the court should appoint a guardian ad litem who should plead such a denial as to put the plaintiff to the proof of the case.").
1974). This duty to defend extends to cases where the complaint alleges several causes of action or theories of recovery against an insured, one of which is within the coverage of a policy while the others may not be. ( Krutsinger v. Illinois Casualty Co., 10 Ill.2d 518; Sims v. Illinois National Casualty Co., 43 Ill. App.2d 184; Rom v. Gephart, 30 Ill. App.2d 199; Canadian Radium Uranium Corp. v. Indemnity Insurance Company of North America, 342 Ill. App. 456, rev'd on other grounds, 411 Ill. 325; Alm v. Hartford Fire Insurance Co. (Wyo. 1962), 369 P.2d 216; Butters v. City of Independence (Mo. 1974), 513 S.W.2d 418; Schurgast v. Schumann (1968), 156 Conn. 471, 242 A.2d 695; Babcock Wilcox Co. v. Parsons Corp. (8th Cir. 1970), 430 F.2d 531. See also Annots., 41 A.L.R.2d 434 (1955), 50 A.L.R.2d 458 (1956); 14 Couch on Insurance sec. 51:43 (1975-76 Supp.).
"Where a complaint in an action against one to whom a policy of liability insurance has been issued states different causes of action or theories of recovery against the insured, and one such cause is within the coverage of the policy but others may not be within such coverage, the insurer is bound to defend with respect to those which, if proved, are within the coverage." 14 Couch, Insurance (2d Ed.) 51:43; Sims v. Illinois National Casualty Co., 43 Ill. App.2d 184, 195, 193 N.E.2d 123; Rom v. Gephart, 30 Ill. App.2d 199, 207, 173 N.E.2d 828; Canadian Radium Uranium Corporation v. Indemnity Ins. Co., 342 Ill. App.? 456, 461, 97 N.E.2d 132; Christian v. Royal Ins. Co., 185 Minn. 180, 182, 240 N.W. 365; see note, 50 A.L.R.2d 458, 506 24. The duty of Aetna to defend the action was clear, and its failure to do so was a breach of its duty to Schumann.
"The duty of a guardian ad litem is ‘to call the rights of the minor to the attention of the court, to present their interests and claim for them such protections as under the law they are entitled.’ " In re Griesmeyer , 302 Ill. App. 3d at 914, 236 Ill.Dec. 227, 707 N.E.2d 72 (quoting Rom v. Gephart , 30 Ill. App. 2d 199, 208, 173 N.E.2d 828 (1961) ). A GAL's guiding principal is to act in the best interests of the minor.
Vlastelica v. Brend, 2011 IL App (1st) 102587, ¶ 22. "The duty of the guardian ad litem is 'to call the rights of the minor to the attention of the court, to present their interests and claim for them such protection as under the law they are entitled.' " In re Griesmeyer, 302 Ill. App. 3d 905, 914 (1998) (quoting Rom v.Gephart, 30 Ill. App. 2d 199, 208 (1961)). "A GAL is the 'eyes and ears' of the court.
As further noted above, once appointed, the guardian ad litem is charged with defending the interests of the minor. ( McCarthy v. Cain (1922), 301 Ill. 534, 134 N.E. 62; Roth v. Roth (1977), 52 Ill. App.3d 220, 367 N.E.2d 442; Rom v. Gephart (1961), 30 Ill. App.2d 199, 173 N.E.2d 828.) We believe the appointment of a guardian ad litem vests that individual with exclusive authority to proceed on behalf of the minor in the pending lawsuit and operates to derogate and relieve any other person's authority to do so. Such a conclusion is implied from the language of section 11-13 of the Probate Act ("[t]he representative of the estate of a ward shall appear for and represent * * * unless another person is appointed for that purpose") ( 755 ILCS 5/11-13(d) (West 1992)).