Atlantic National Insurance Co. v. ERIE INSURANCE EXCH.
| Decision Date | 13 December 1962 |
| Docket Number | No. 10623-M-Civ.,10623-M-Civ. |
| Citation | 211 F. Supp. 878 |
| Parties | ATLANTIC NATIONAL INSURANCE COMPANY, Plaintiff, v. ERIE INSURANCE EXCHANGE, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Knight, Smith, Underwood & Peters, Miami, Fla., for plaintiff.
Fowler, White, Gillen, Humkey & Trenam, Miami, Fla., for defendant.
THIS CAUSE for a declaratory judgment came on to be heard on stipulated facts and the briefs of parties. The Court having considered the "stipulated statement of facts" and the amendment thereto, as well as, the pre-trial stipulation, memoranda and pleadings in this cause, now makes the following Findings of Fact and Conclusions of Law.
1. Plaintiff, Atlantic National Insurance Company, is a Florida Corporation, authorized to do business in Florida and with its principal place of business in Miami, Florida.
2. Defendant is a Pennsylvania reciprocal organization, with its principal place of business in Pennsylvania.
3. The amount in controversy exceeds $10,000 exclusive of interest and costs.
4. Atlantic National Insurance Company issued to the Hertz Corporation a Hertz Special Automobile Policy, Driverless Car Liability Policy which was in existence at all times material hereto. Such a policy insured not only the Hertz Corporation but also any person to whom an automobile was rented by the Hertz Corporation. Such policy further provided that the insurance afforded thereunder would be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under another policy or otherwise.
5. The Defendant, Erie Insurance Exchange, issued a Family Automobile policy to Isaac P. Holzman which was likewise in existence at all times material hereto. This policy insured the named insured, Isaac P. Holzman while operating an owned automobile and further insured Isaac P. Holzman while operating a non-owned automobile. It further provided that the insurance afforded thereunder in reference to a non-owned automobile would be excess insurance over any other valid and collectible insurance.
6. Prior to April 22, 1958, the said Isaac P. Holzman rented a vehicle from the Hertz Corporation and on April 22, 1958, was involved in an automobile accident in which Melvin Kline was allegedly injured and damaged.
7. On August 25, 1958, the said Melvin Kline filed an action at law against the Hertz Corporation and Isaac P. Holzman. The Plaintiff, through its attorneys, appeared on behalf of both the Defendant, Hertz Corporation, and Defendant, Isaac P. Holzman, and thereafter made several written demands on the Defendant, Erie Insurance Exchange, for contribution towards any possible settlement. At all times Erie refused to acknowledge responsibility for prorata contribution. None of such correspondence indicated any actual settlement proposal satisfactory to the Plaintiff herein. No request for settlement advice was ever made by Erie in its correspondence rejecting the Plaintiff's position.
8. Immediately prior to the commencement of the trial of the aforementioned damage suit, counsel for Melvin Kline took a voluntary non-suit as to Isaac P. Holzman and the trial proceeded against the Hertz Corporation as the sole defendant. Following the presentation of all testimony and the conference on jury charges, the cause was amicably settled between the parties thereto. Such amicable settlement was in the sum of $50,000 and pursuant thereto the said damage suit of Melvin B. Kline vs. The Hertz Corporation was dismissed with prejudice on April 25, 1961.
9. The payment of $50,000 was thereafter made by draft drawn on the Atlantic National Insurance Company, dated April 14, 1961, and transmitted to Counsel for Melvin Kline in exchange for general releases running to the Hertz Corporation and Isaac P. Holzman.
1. The Court has jurisdiction of the parties and of the subject matter under 28 U.S.C. § 1332.
2. Plaintiff is entitled to recover from Defendant one-half of the settlement amount.
While there is no case in this State or Circuit with an identical factual situation, due to the non-suit and ensuing settlement, it is to be noted that plaintiff's policy contains, as to both the named insured and as to "renters" (of whom Holzman is one) an "other insurance" clause of the excess coverage type. Defendant's policy has an "other insurance clause" of the pro rata type, except as to coverage when driving a non-owned...
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