Aetna Insurance Company v. Newton, No. 17037.
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
| Writing for the Court | KALODNER, GANEY and VAN DUSEN, Circuit |
| Citation | 398 F.2d 729 |
| Parties | AETNA INSURANCE COMPANY, a corporation incorporated under the laws of the State of Connecticut v. Lester C. NEWTON, Lester C. Newton Trucking Company, a corporation incorporated under the laws of the State of Delaware, C. F. Schwartz, Inc., a corporation incorporated under the laws of the State of Delaware, and Continental Insurance Company, a corporation incorporated under the laws of the State of New York, C. F. Schwartz, Incorporated, Appellant. |
| Docket Number | No. 17037. |
| Decision Date | 25 July 1968 |
398 F.2d 729 (1968)
AETNA INSURANCE COMPANY, a corporation incorporated under the laws of the State of Connecticut
v.
Lester C. NEWTON, Lester C. Newton Trucking Company, a corporation incorporated under the laws of the State of Delaware, C. F. Schwartz, Inc., a corporation incorporated under the laws of the State of Delaware, and Continental Insurance Company, a corporation incorporated under the laws of the State of New York, C. F. Schwartz, Incorporated, Appellant.
No. 17037.
United States Court of Appeals Third Circuit.
Argued April 5, 1968.
Decided July 25, 1968.
Roger Sanders, Prickett, Ward, Burt & Sanders, Wilmington, Del., for appellee.
Before KALODNER, GANEY and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
KALODNER, Circuit Judge.
This is an appeal by the defendant C. F. Schwartz, Incorporated ("Schwartz") from the District Court's Order denying its motion for summary judgment against the plaintiff Aetna Insurance Company ("Aetna"), and entering summary judgment in favor of Aetna and against Schwartz.1
We do not reach the merits of this appeal because we lack jurisdiction to entertain it inasmuch as the challenged Order is not, under the prevailing circumstances, a "final decision" in this case, and that being so, it is not appealable.2
The critical facts adduced by the record may be stated as follows:
For some time prior to April 18, 1963, Schwartz and its co-defendant, Lester C. Newton Trucking Company ("Newton"),3 common motor freight carriers, engaged in an interchange of trucks and drivers in hauling commodities between Salisbury, Maryland, and Pennsylvania, under an oral agreement, which provided that liability for damage to carried cargo was to be borne by the carrier who was in control of the shipment at the time. Schwartz held an ICC certificate to transport commodities from Salisbury to Wyoming, Delaware, and Newton held an ICC certificate to haul commodities from Wyoming to Pennsylvania. Under this agreement, shipments were transported from Salisbury to Pennsylvania in a truck furnished by Schwartz at Salisbury, and control of the truck and driver was taken over by Newton at Wyoming to completion of the haul to Pennsylvania. In transporting cargo from Pennsylvania to Salisbury, Newton furnished the truck, control of the truck and driver being taken over by Schwartz at Wyoming to completion of the haul to Salisbury.
On April 18, 1963, Schwartz and Newton executed, in Delaware, a written agreement designated as the "Master Interchange Agreement" which continued on a year to year basis their prior interchange operations. This written agreement, which provided that "it shall constitute the entire agreement between
It provided, in pertinent part in Paragraph 4(C) (2):
"The initial carrier shall:
"(2) indemnify and save harmless the receiving carrier against any claim by whomsoever filed arising from the operation of the motor vehicles and against any claim for loss or damage to any shipment or shipments being transported in said vehicle. * * *"
On July 7, 1963, Schwartz, at Salisbury, picked up a load of commodities owned by its customer, Campbell Soup Company, for delivery to a point in Pennsylvania. After it yielded control of its truck and cargo to Newton, at Wyoming, a failure in the truck's refrigeration equipment damaged the shipment. Newton then paid Campbell Soup Company $11,116.95 for its loss. It asked Schwartz; the latter's insurer, Continental Insurance Company ("Continental"); and Aetna, its own insurer, to make it whole but they all refused to do so.
On May 11, 1965, Aetna commenced the instant declaratory judgment proceeding against Newton, Schwartz and Continental in which it sought an adjudication that: (1) Schwartz was obligated to make Newton whole; (2) Continental was obligated to pay Schwartz' obligation to Newton; and (3) Aetna was not obligated under the policy it had issued to Newton to pay anything to Newton, Schwartz or Continental.
A veritable flood of Answers, Counterclaims, Cross-Claims, a Motion to Dismiss and Motions for Summary Judgment then ensued.
Those which concerned the Aetna-Newton dispute were ultimately disposed of by a Stipulation granting Newton's Motion for Summary Judgment against Aetna.
The District Court also granted Continental's Motion to Dismiss Aetna's Complaint as to it for the assigned reason that "no justiciable controversy" existed between Aetna and Continental, and that "if such a controversy does exist the action should be...
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Handy v. Uniroyal, Inc., Civ. A. No. 3667.
...Ins. Co. v. Lawson, 134 F.Supp. 63, 66 (D.Del.1955); Aetna Insurance Co. v. Newton, 274 F. Supp. 566, 570 (D.Del.1967), appeal dismissed 398 F.2d 729 (C.A.3, 1968). In a diversity case where the state courts have not passed on an issue specifically it is the duty of this Court to determine ......
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Aluminum Co. of America v. Beazer East, Inc., No. 96-3420
...pleaded as a counterclaim, see TMA Fund, Inc. v. Biever, 520 F.2d 639, 641 (3d Cir.1975), or a cross-claim, see Aetna Ins. Co. v. Newton, 398 F.2d 729, 733 (3d However, to determine the effect of a district court's decision--and therefore to determine whether there is a final order--it is s......
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Wood v. Holiday Inns, Inc., No. 74-1753
...475 F.2d 925 (1973); United States v. Crow, Pope and Land Enterprises, Inc., 474 F.2d 200 (5th Cir. 1973); Aetna Insurance Co. v. Newton, 398 F.2d 729 (3rd Cir. 1968). The district court having certified that 'there is no just reason for delay,' we proceed to the merits. See Kull v. Mid-Ame......
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Olmstead v. Cattle, Inc., No. 4568
...Cir. 1969); Beaverly Hills Federal Savings and Loan Association v. Webb, 406 F.2d 1275 (9th Cir. 1969); Aetna Insurance Company v. Newton, 398 F.2d 729 (3rd Cir. 1968); Peralta v. Quad Tool and Dye Supply Co., 370 F.2d 103 (3rd Cir. 1966); Schnur & Cohan, Inc., v. McDonald, 328 F.2d 103 (4t......
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Handy v. Uniroyal, Inc., Civ. A. No. 3667.
...Ins. Co. v. Lawson, 134 F.Supp. 63, 66 (D.Del.1955); Aetna Insurance Co. v. Newton, 274 F. Supp. 566, 570 (D.Del.1967), appeal dismissed 398 F.2d 729 (C.A.3, 1968). In a diversity case where the state courts have not passed on an issue specifically it is the duty of this Court to determine ......
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Aluminum Co. of America v. Beazer East, Inc., No. 96-3420
...pleaded as a counterclaim, see TMA Fund, Inc. v. Biever, 520 F.2d 639, 641 (3d Cir.1975), or a cross-claim, see Aetna Ins. Co. v. Newton, 398 F.2d 729, 733 (3d However, to determine the effect of a district court's decision--and therefore to determine whether there is a final order--it is s......
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Wood v. Holiday Inns, Inc., No. 74-1753
...475 F.2d 925 (1973); United States v. Crow, Pope and Land Enterprises, Inc., 474 F.2d 200 (5th Cir. 1973); Aetna Insurance Co. v. Newton, 398 F.2d 729 (3rd Cir. 1968). The district court having certified that 'there is no just reason for delay,' we proceed to the merits. See Kull v. Mid-Ame......
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Olmstead v. Cattle, Inc., No. 4568
...Cir. 1969); Beaverly Hills Federal Savings and Loan Association v. Webb, 406 F.2d 1275 (9th Cir. 1969); Aetna Insurance Company v. Newton, 398 F.2d 729 (3rd Cir. 1968); Peralta v. Quad Tool and Dye Supply Co., 370 F.2d 103 (3rd Cir. 1966); Schnur & Cohan, Inc., v. McDonald, 328 F.2d 103 (4t......