Richland Knox Mutual Insurance Company v. Kallen

• Decision Date: 11 April 1967
• Docket Number: 16713.,No. 16712,16712
• Citation: 376 F.2d 360
• Parties: 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.
• Court: U.S. Court of Appeals — Sixth Circuit

376 F.2d 360 (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.

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 Policy-holders 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 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 Coverages E and F, to bodily injury or property damage caused intentionally by or at the direction of the Insured" * * * sic

Particular emphasis is placed on the fact that the Richland Knox policy from which this language was taken is a homeowner's insurance policy providing coverage for negligence liability. Paris, who is not a party hereto, carried automobile insurance with the defendant American Policy-holders Insurance Company, and Kallen's automobile insurer, Detroit Automobile Inter-Insurance Exchange, was added as a party defendant by Litwin; she presently has an action pending against Kallen in a state court to recover damages for the injuries sustained by her.

After the case was at issue, Litwin filed a cross claim against Kallen and the three insurance companies involved. The cross complaint sought a declaration that the policies issued by the respective insurance companies were not mutually exclusive and that all afforded coverage to Kallen; it also demanded a jury trial to determine the damage suffered by Litwin as a result of Kallen's alleged negligence. The matter was submitted to the District Court on three separate motions and, in accordance with an opinion delivered from the bench, the cross claim was dismissed for lack of jurisdiction, American Policyholders Insurance Company was dismissed as a party defendant, sua sponte, on the grounds that it was not a party to any actual controversy and that the jurisdictional amount was not present since the policy limits of the policy issued by it to Paris were $5,000, and the insurance policy issued by Richland Knox to Kallen was found to provide coverage to Kallen for the accident in question, requiring Richland Knox to defend the action brought by Litwin against Kallen in the state action and requiring Richland Knox to pay on behalf of Kallen, up to the limits of its coverage, any judgment as may be returned against Kallen. Richland Knox appeals from that portion of the decision holding the special exclusion upon which it relied inapplicable on the ground that the injuries suffered by Litwin did not arise out of Kallen's use of an automobile; Litwin has cross appealed from the decision dismissing American Policyholders Insurance Company and Detroit Auto- mobile Inter-Insurance Exchange from the action.

The record dictates that Litwin's purported cross appeal be dismissed for lack of jurisdiction.

Prior to the 1966 amendment, Rule 73 (a)^*, Federal Rules of Civil Procedure, provided in pertinent part:

"The time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from * * * except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed."

Also, section 2107 of Title 28, U.S.C. provided:

"No appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree.

* * * * * *

"The district court may extend the time for appeal not exceeding thirty days from the expiration of the original time herein prescribed, upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment, order or decree."

It is clear that the filing of the notice of appeal within the prescribed time limits is mandatory and jurisdictional, and that the right to appeal is lost if the notice of appeal is not timely filed with the district court. Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275 (3rd Cir. 1962); Schlink v. Chesapeake & Ohio Railroad Co., 276 F.2d 116 (6th Cir. 1960); Kahler-Ellis Co. v. Ohio Turnpike Comm., 225 F.2d 922 (6th Cir. 1955); Deena Products Co. v. United Brick & Clay Workers, 195 F.2d 612 (6th Cir.), cert. denied, 344 U.S....