Allstate Ins. Co. v. GUARANTY INS. EXCH. OF KANSAS CITY, MO., Civ. A. No. 4012.

• Decision Date: 15 September 1962
• Docket Number: Civ. A. No. 4012.
• Citation: 208 F. Supp. 542
• Court: U.S. District Court — District of South Carolina
• Parties: ALLSTATE INSURANCE COMPANY, a Corporation, Plaintiff, v. GUARANTY INSURANCE EXCHANGE OF KANSAS CITY, MISSOURI, a Corporation, Roy Dalton and Stewart F. Thacker, Defendants.

208 F. Supp. 542

ALLSTATE INSURANCE COMPANY, a Corporation, Plaintiff, v. GUARANTY INSURANCE EXCHANGE OF KANSAS CITY, MISSOURI, a Corporation, Roy Dalton and Stewart F. Thacker, Defendants.

Civ. A. No. 4012.

United States District Court W. D. South Carolina, Greenville Division.

September 15, 1962.

W. Francis Marion, Donald L. Ferguson, Greenville, S. C., for plaintiff.

J. Wiley Brown, Greenville, S. C., Jas. P. Brown, Knoxville, Tenn., for defendant Stewart F. Thacker.

Edens & Hammer, Columbia, S. C., for defendant Guaranty Insurance Exchange of Kansas City, Missouri.

James J. Raman, Spartanburg, S. C., for defendant Roy Dalton.

WYCHE, Chief Judge.

This is an action brought under the Declaratory Judgment Act (28 U.S.C.A. §§ 2201-2202), in which the plaintiff asks this Court to "determine its liability" under its automobile liability insurance policy issued to the defendant Stewart F. Thacker covering the operation of his 1959 Edsel automobile. The policy contains an uninsured motorist endorsement.

On March 31, 1961, while the said policy of insurance was in force and effect, the defendant Stewart F. Thacker was involved in an automobile accident with the defendant Roy Dalton in the State of South Carolina.

The defendant Roy Dalton was insured by the defendant Guaranty Insurance Exchange of Kansas City, Missouri, by an automobile liability insurance policy covering a 1949 Plymouth 4-door automobile, which the plaintiff contends was in full force and effect at the time of the accident on March 31, 1961, and that therefore defendant Stewart F. Thacker's automobile is not covered by the uninsured motorist endorsement of its policy.

The defendant Guaranty Insurance Exchange of Kansas City, Missouri, alleges that its policy issued to the defendant Roy Dalton was not in full force and effect, but had been legally cancelled before the date of the accident.

The defendant Roy Dalton alleges that the automobile liability insurance policy issued to him by the defendant Guaranty Insurance Exchange of Kansas City, Missouri, was in full force and effect at the time of the accident, and has filed a cross-claim for damages against the defendant Guaranty Insurance Exchange of Kansas City, Missouri.

As a result of said accident Elsie Thacker, who was in the vehicle driven by her husband Stewart F. Thacker, sustained injuries as a result of which she subsequently died; Mary Jane Warwick and James Warwick, who were also in the vehicle, along with the driver, Stewart F. Thacker, sustained personal injuries and Stewart F. Thacker's 1959 Edsel automobile was damaged; subsequent to said accident these parties have filed claims with the Guaranty Insurance Exchange of Kansas City, Missouri, which defendant has denied and disaffirmed that it had any coverage in effect on the defendant Roy Dalton or his 1949 Plymouth at the time of the accident on March 31, 1961; thereafter these parties filed claims against the plaintiff Allstate Insurance Company under the uninsured motorist provision of its policy issued to Stewart F. Thacker.

The defendant Stewart F. Thacker alleges that the Roy Dalton automobile was uninsured and that he is entitled to recover against the plaintiff by reason of the uninsured motorist endorsement in the automobile liability insurance policy issued to him by the plaintiff and that he and the other claimants are entitled to recover against the plaintiff.

The uninsured motorist endorsement of the policy is as follows: "Allstate will pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such automobile."

The defendant Stewart F. Thacker seeking affirmative relief under this uninsured motorist provision of the policy alleges: "Further answering, the said defendant, Stewart F. Thacker, would show that at the said time and place he was operating his automobile lawfully and cautiously in a westerly direction, on the right hand side of the highway and that the defendant Roy Dalton was driving his car in an easterly direction and...