Commonwealth Ins. Co. of NY v. O. Henry Tent & A. Co.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation266 F.2d 200
Docket NumberNo. 12528.,12528.
PartiesCOMMONWEALTH INSURANCE COMPANY OF NEW YORK, The Continental Insurance Company, Milwaukee Insurance Company of Milwaukee, Wisconsin, United Fire Insurance Company, Plaintiffs-Counter-Defendants-Appellants, v. O. HENRY TENT & AWNING COMPANY, Defendant-Counter-Plaintiff-Appellee.
Decision Date01 May 1959

Donald N. Clausen, Herbert W. Hirsh, Jerome H. Torshen, Clausen, Hirsh, Miller & Gorman, Chicago, Ill., Attorneys for appellants.

John P. Gorman, Chicago, Ill., for appellant.

Morris A. Haft, Chicago, Ill., Bernard Davis, Haft, Shapiro & Davis, Chicago, Ill., for appellee.

Before DUFFY, Chief Judge, and SCHNACKENBERG and PARKINSON, Circuit Judges.

DUFFY, Chief Judge.

On March 31, 1955, each of the four plaintiff insurance companies issued a fire insurance policy to defendant. Each policy contained a monthly reporting form endorsement. Under this value reporting clause, the insured agreed to make monthly reports of the total cash value of the insured property at each location, and this clause provided that if such reports were not made, the policies were to cover not more than the amount included in the last report of values.

A fire occurred on March 28, 1956 destroying property of defendant valued at $32,188.29. However, the last report submitted prior to the date of the fire stated the value of the goods at the location to be $14,360.76. Defendant demanded payment of $32,188.29 and the insurance companies claimed their total liability was $14,360.76. The insurance companies promptly filed a complaint for a declaratory judgment. Defendant filed a counter-claim for $32,188.29 and alleged that the insurance companies had waived the value reporting clause.

Defendant moved for summary judgment upon a portion of its claim, to-wit: $14,360.76. After considering this motion on briefs, the trial court, on July 24, 1957, denied the motion stating that the granting of the motion would constitute a splitting of the lawsuit. Thereafter, on October 27, 1958, the District Court, on its own motion, vacated its prior order of July 24, 1957, and thereafter entered a partial summary judgment against plaintiffs for $14,360.76. Execution was issued pursuant to the Court's order and was served upon each of the plaintiffs. Thereafter the notice of appeal herein was filed.

The issue on this appeal is whether the district court has the power to issue a partial summary judgment. We hold the court did not have such power under the facts in this case. We think our decision in Biggins v. Oltmer Iron Works, 7 Cir., 154 F.2d 214, is controlling.

In Biggins, plaintiff sought compensation for services rendered by him as a sales representative. The total amount claimed was broken down into five designated items. The district court ordered summary judgment on two of the items about which there was no substantial controversy. Indeed, defendant in that case had tendered to plaintiff checks covering those two items. There was a motion To dismiss the appeal on the ground that the partial summary judgment was interlocutory in character. This court discussed the question of whether the summary judgment was interlocutory or a final judgment and also discussed the merits of the entry of an order for partial summary judgment.

Rule 54(b), Federal Rules of Civil Procedure, 28 U.S.C.A., provides for a final judgment upon one claim in a suit which is predicated upon more than a single claim. In Biggins, we held Rule 54(b) did not apply as the...

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    ...Partial summary judgment disposes of one or more counts of a complaint in their entirety. Commonwealth Ins. Co. of N.Y. v. O. Henry Tent & Awning Co., 266 F.2d 200, 201 (7th Cir.1959); Biggins v. Oltmer Iron Works, 154 F.2d 214, 216-17 (7th Cir.1946); Quintana v. Byrd, 669 F.Supp. 849, 850 ......
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    ...judgment is available to dispose of only one or more counts of the complaint in their entirety. Commonwealth Ins. Co. of N.Y. v. O. Henry Tent & Awning Co., 266 F.2d 200, 201 (7th Cir.1959); Biggins v. Oltmer Iron Works, 154 F.2d 214, 216-17 (7th Cir.1946); Quintana v. Byrd, 669 F.Supp. 849......
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    ...not invoked § 5937 here. Accordingly, the court does not discuss it. 5See Commonwealth Ins. Co. of N.Y. v. O. Henry Tent and Awning Co., 266 F.2d 200, 201 (7th Cir.1959), Coffman v. Federal Laboratories, 171 F.2d 94 (3rd Cir.1949), Audi Vision, Inc. v. RCA Mfg. Co., 136 F.2d 621 (2d Cir.194......
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    ...Partial summary judgment disposes of one or more counts of a complaint in their entirety. Commonwealth Ins. Co. of N.Y. v. O. Henry Tent & Awning Co., 266 F.2d 200, 201 (7th Cir.1959); Biggins v. Oltmer Iron Works, 154 F.2d 214, 216-17 (7th Cir.1946); Quintana v. Byrd, 669 F.Supp., 849, 850......
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