New Jersey Fidelity & Plate Glass Ins. Co. v. Clark
| Decision Date | 17 June 1929 |
| Docket Number | No. 5754.,5754. |
| Citation | 33 F.2d 235 |
| Parties | NEW JERSEY FIDELITY & PLATE GLASS INS. CO. v. CLARK. |
| Court | U.S. Court of Appeals — Ninth Circuit |
E. L. McDougal, of Portland, Or., for appellant.
Keith A. Caldwell and Ronald L. Reilly, both of Portland, Or., for appellee.
Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.
This was an action on an automobile policy of liability insurance. The plaintiff in the action recovered judgment for personal injuries against the insured in a state court of Oregon for the sum of $50,570, together with $127.30 costs of suit. Execution on the judgment was returned unsatisfied, and the present action was thereupon instituted against the insurance company. The company admitted liability, so that the only question for consideration is the extent of that liability. The court below gave judgment in favor of the plaintiff for the sum of $10,000, the limit of liability fixed by the policy, together with interest on the entire amount of the judgment in the state court and all costs incurred in that court. The judgment for interest and costs was based on a provision of the policy wherein the company agreed: "To pay, irrespective of the limits of liability hereinafter mentioned, all costs taxed against the assured in any legal proceedings defended by the company pursuant to the foregoing agreement, and all interest accruing after entry of judgment in such proceedings." The company has appealed from the judgment and challenges the right of the appellee to recover either the costs incurred in the state court or any interest on the judgment of that court.
Inasmuch as a right of action is given to two different persons under somewhat different conditions, some of the provisions of the policy are not entirely free from ambiguity. The first or principal right of action is given to the insured, but no right of action accrues in his favor until he has satisfied in full the judgment recovered against him by the injured party. Upon such satisfaction he is entitled to recover from the company up to the limits fixed by the policy and all costs taxed against him in any legal proceedings defended by the company and all interest accruing after entry of judgment, irrespective of the limits of liability fixed by the policy. The right of the insured to recover the costs and interest as allowed by the court below under the terms of the policy would not seem to admit of question, because such was the express agreement of the company, and the policy in that regard is too plain to admit of construction. On the other hand, in the event of the bankruptcy or insolvency of the insured the...
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