376 F.2d 360 (6th Cir. 1967), 16712, Richland Knox Mut. Ins. Co. v. Kallen

Docket Nº:16712, 16713.
Citation:376 F.2d 360
Party Name:RICHLAND KNOX MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. David KALLEN, Sondra Litwin and American Policyholders Insurance Company, Defendants-Appellees. Sondra LITWIN, Cross Plaintiff-Appellant, v. David KALLEN, American Policyholders Insurance Company, Detroit Automobile Inter-Insurance Exchange and Richland Knox Mutual Insurance Company, C
Case Date:April 11, 1967
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 360

376 F.2d 360 (6th Cir. 1967)

RICHLAND KNOX MUTUAL INSURANCE COMPANY, Plaintiff-Appellant,

v.

David KALLEN, Sondra Litwin and American Policyholders Insurance Company, Defendants-Appellees.

Sondra LITWIN, Cross Plaintiff-Appellant,

v.

David KALLEN, American Policyholders Insurance Company, Detroit Automobile Inter-Insurance Exchange and Richland Knox Mutual Insurance Company, Cross Defendants-Appellees.

Nos. 16712, 16713.

United States Court of Appeals, Sixth Circuit.

April 11, 1967

Page 361

Konrad D. Kohl, Detroit, Mich., for Richland Knox Mutual Insurance, plaintiff-appellant, Davidson, Gotshall, Kelly, Halsey & Kohl, Detroit, Mich., on brief.

Thomas A. Neenan, Detroit, Mich., for Sondra Litwin, cross plaintiff appellant, Ward, Plunkett, Cooney, Rutt & Peacock, William P. Cooney, Detroit, Mich., on brief.

John A. Kruse, Detroit, Mich., for American Policyholders Insurance Co. and Detroit Automobile Inter-Insurance Exchange, cross defendant appellees, Alexander, Buchanan & Conklin, Detroit, Mich., on brief for American Policyholders Insurance Company, Rouse, Selby, Webber, Dickinson & Shaw, Forrest G. Shaw, Detroit, Mich., on brief for Detroit Automobile Inter-Insurance Exchange.

Before O'SULLIVAN, PHILLIPS and PECK, Circuit Judges.

JOHN W. PECK, Circuit Judge.

The only simple aspect of this case is found in the facts of the occurrence giving rise to the controversy in suit. Defendant and Cross Plaintiff-appellant Sondra Litwin was a passenger, as was Defendant David Kallen, in the back seat of a passenger automobile owned and operated by one Joseph Paris, hereinafter referred to as'Litwin,' 'Kallen' and 'Paris,' respectively. Kallen attempted to throw a lighted firecracker out of the

Page 362

car window, but because it was closed the firecracker struck the glass and exploded within the car. This caused other firecrackers in the back seat to ignite and explode, resulting in personal injuries to Litwin.

The balance of the factual pattern is not capable of such simple presentation. At the time in question, Kallen was insured under a policy issued by Richland Knox Mutual Insurance Company (hereinafter referred to as 'Richland Knox'). It brought the first of these two companion cases for Declaratory Judgment, contending that at the time of the accident Kallen was using an automobile and that because of a 'special exclusion' contained in the policy which had application there was no coverage inuring to Kallen's benefit. The provision relied upon by Richland Knox in its attempt to be held free from liability is contained in the following:

'COVERAGE E-- PERSONAL LIABILITY. ' (a) Liability: To pay on behalf of the insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim as it deems expedient. 'SECTION II OF THIS POLICY DOES NOT APPLY: '(b) under Coverages E and F, to the ownership, maintenance, operation, use, loading or unloading of (1) automobile or midget automobiles while away from the premises or the ways immediately adjoining, * * * '(c) under Coverage E and F, to bodily injury or property damage caused intentionally by or at the direction of the Insured' *...

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