Acc. & Indem. Co. v. Randall
| Decision Date | 30 November 1932 |
| Docket Number | 23463 |
| Parties | Hartford Accident & Indemnity Co. v. Randall Et Al. |
| Court | Ohio Supreme Court |
Insurance - Casualty indemnity - Waiver of policy provisions - General authority to agent to settle and pay losses - Includes authority to waive conditions to be performed after loss sustained - Waiver of notice to insurer of suit against insured Liability disclaimed by agent and intention to defend insured disclaimed - Waiver to injured party equivalent to waiver to insured - Insurer estopped by agent's statement to insured or injured party.
1. General authority given by a casualty indemnity insurance company, to an agent to settle and pay losses claimed under a policy of insurance, includes the authority to waive all terms and conditions of the policy to be performed by the insured after loss sustained.
2. Terms and conditions of a policy of casualty indemnity insurance, requiring the insured to give notice to the insurance company of suit brought against the insured, may be waived by a duly authorized agent.
3. Where a policy of indemnity casualty insurance obligates the insurance company to defend, in the name and on behalf of the assured, any suit against the assured within the terms of the policy, and as a condition thereto requires that immediate notice of such be given to the company, such notice is waived if, prior to such suit, the company by its authorized agent disclaims liability to indemnify and declares its intention not to defend the suit for that reason.
4. A person injured by the assured in such manner as to entitle the assured to indemnity under the policy, has such potential beneficial interest in the policy, by the provisions of Section 9510-4, General Code, as to warrant such injured person to comply with the terms and conditions of the policy agreed to be performed by the assured, even though such performance be without the knowledge or concurrence of the assured, and a waiver to such injured party is equivalent to a waiver to the assured.
5. An estoppel is created against an insurance company by the duly authorized agent of the company making a statement to the assured, or to a party injured by the assured, that it will not defend an action, if by that statement the assured or such injured party is induced to inaction, thereby altering his position to his prejudice.
The facts are stated in the opinion.
Messrs McKeehan, Merrick, Arter & Stewart and Mr. C. M. Horn, for plaintiff in error.
Mr J.E. Helman, for defendants in error.
Newell Randall recovered a judgment in the court of common pleas of Ashtabula county, Ohio, against Raymond Anderson for personal injuries due to Anderson's negligence while operating an automobile. Prior thereto, the Hartford Accident & Indemnity Company issued to one Stevenson, the owner of the automobile a policy of liability insurance which covered not only the owner, but also anyone driving the automobile with his permission. After recovering the judgment against Anderson this action was brought against the insurance company under favor of Section 9510-4, General Code, which provides that, upon recovery of a final judgment against any person or firm for damages on account of bodily injury or death, if the defendant in such action was insured against loss or damage at the time the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant applied to the satisfaction of the judgment, and that, if the judgment is not satisfied within 30 days after the date it was rendered, the judgment creditor may have an action against the insurance company to apply the insurance money to the satisfaction of the judgment.
It was alleged in the petition that Anderson was operating the automobile with the permission of Stevenson at the time Randall was injured. Issue was joined on that allegation, but that question was submitted to the jury under proper instructions, and, the evidence being in conflict and being determined in favor of Randall, it is not an issue in this court. Anderson must therefore be considered as the assured.
The answer of the insurance company pleaded that the contract of insurance provided that the insurance company should have the opportunity of conducting the defense in any lawsuit against the assured, that to that end immediate written notice should be given of any lawsuit resulting from such injuries, together with summons or other process served therein, and that the assured should co-operate fully with the insurance company in disclosing all the facts about the accident, the making of claim, and the filing of suit, and, further, should also render aid in securing evidence and the attendance of witnesses at the trial It further alleged that no notice was given of the commencement or pendency of the suit, and that the insurance company had no knowledge of the suit until after default judgment was rendered.
To this answer Randall replied that after the accident, and prior to suit being brought, one James S. Keane, the agent of the insurance company, with full authority to compromise, adjust and settle claims, conferred with the attorney representing Randall, and after investigation told the attorney that the company would not defend Anderson in any action brought by Randall, and disclaimed all liability for the accident caused by Anderson. Randall therefore claimed an estoppel to set up the conditions of its policy, because of the claimed waiver by the insurance company's duly authorized agent. The interview between Helman, the attorney for Randall, and Keane, the adjuster for the insurance company, was never reported to...
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