Booth v. Seaboard Fire & Marine Insurance Company

Decision Date10 June 1968
Docket NumberCiv. 02623.
Citation285 F. Supp. 920
PartiesLucile BOOTH, Administratrix De Bonis Non of the Estate of Ernest R. Booth, Deceased, Plaintiff, v. SEABOARD FIRE & MARINE INSURANCE COMPANY, a corporation, Defendant.
CourtU.S. District Court — District of Nebraska

James E. Schneider, Baskins, Baskins & Schneider, North Platte, Neb., for plaintiff.

Harold W. Kay and Clinton J. Gatz, Maupin, Dent, Kay, Satterfield & Gatz, North Platte, Neb., for defendant.

MEMORANDUM

VAN PELT, District Judge.

The plaintiff is a Nebraska citizen and was duly appointed administratrix in Nebraska of the estate of Ernest R. Booth. Ernest Booth will hereinafter be referred to as the decedent. The defendant insurance company, hereinafter referred to as Seaboard, is a New York corporation authorized to do business in Nebraska. There is a claim of jurisdictional amount. The matter is submitted on cross motions for summary judgment (Filings #12 and #14).

The complaint seeks relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. The complaint makes six different claims. Basically, however, the relief requested is the interpretation by the court of particular clauses in two insurance policies, both with Seaboard, and the entry of judgment in favor of the plaintiff for such amounts as she is entitled to, together with costs and attorneys' fees.

The facts should be stated for the purposes of these motions. The decedent was driving a tractor on U. S. Highway 30 on October 25, 1963, when he was struck from behind by a car owned by Larry Sheely and driven by George Cayson. The decedent died on October 28, 1963 from the injuries so received. The insurance on Sheely's vehicle had expired on October 14, 1963 and Cayson did not have insurance.

The tractor was owned by Gothenburg Feed Products, the decedent's employer. It was an ordinary tractor such as is normally found in agricultural pursuits and was not specially equipped. It was used by decedent's employer in connection with its alfalfa dehydrating operations. The tractor was principally used to pull machinery in the field. The decedent was employed as a mechanic and only infrequently worked in the field. In this particular instance the cutting season was over and decedent was driving the tractor solely for the purpose of transporting it from one place to another for storage for the winter.

It appears that formal written notice and a claim were not given to Seaboard until August 20, 1965, at which time notice was given to Continental Insurance Companies. Seaboard admits that all acts of and notices received by Continental are binding on Seaboard. In response to this notice of August 20, 1965 Continental sent back a letter to counsel for plaintiff which included an Automobile Accident or Loss Notice. The letter also contained the following statements: "I would like also some explanation as to why such a long delay in giving us notice. Upon receipt of this information, we will give the matter further consideration." (Filing #15, Ex. C; also in Pl. Ex. 8). The Automobile Accident or Loss Notice was returned on September 8, 1965 with a letter which gave some explanation of the delay in notifying the Continental. No further mention of improper notice was made until the answer in this case was filed. Continental proceeded to investigate the accident. On November 10, 1965 a letter was sent from Continental to plaintiff's counsel which raised the following policy defenses:

1) Denied liability under the accidental death benefits coverage because of a farm machinery exclusion;

2) Claimed a reduction of the uninsured motorist coverage by the amount of workmen's compensation payments; and

3) Made a reference to arbitration as follows: "I would like to point out and request that you read the arbitration section in connection with uninsured motorists coverage and if you have any further word in connection with this, please let me know." (Filing #15, Ex. F; part of pltf's Ex. 8). No reference was made to lack of due notice or failure to demand payment. It appears that up to this point, the subject of medical payments had not been raised by either party.

Plaintiff has received workmen's compensation payments in the amount of $13,400. The workmen's compensation carrier has renounced any claim it might have for reimbursement from proceeds of the uninsured motorists coverage.

On or about October 1, 1965 an action was commenced against Cayson and Sheely in this court. Continental was apprised of the filing of the suit and was adequately notified at each stage of the proceedings. A default judgment was duly entered against Cayson on July 7, 1966. On September 15, 1966 the court determined the damages in that action to be $23,000.00. This action was then commenced.

The six claims made in the complaint are as follows:

First: The plaintiff seeks recovery under the uninsured motorist coverage of policy #SA84731 (hereinafter called policy #1) because of her judgment against the uninsured driver, Cayson. Damages are prayed to the extent of $20,000.00 (the limit of the policy coverage).

Second: The plaintiff seeks recovery under the uninsured motorist coverage of policy #SA84734 (hereinafter called policy #2), because of her judgment against the uninsured driver Cayson. Damages are prayed to the extent of $20,000.00 (the limit of the policy coverage).

Third: The plaintiff seeks recovery under the accidental death benefits coverage of policy #2 of the $1,000.00 amount of coverage.

Fourth: The plaintiff seeks recovery under the accidental death benefits coverage of policy #1 of the $1,000.00 amount of coverage.

Fifth: The plaintiff seeks the recovery of $482.83 of medical expense under the medical expense coverage of policy #1.

Sixth: The plaintiff seeks the recovery of $482.83 of medical expense under the medical expense coverage of policy #2.

The plaintiff also asks for costs and attorney's fees on the above claims.

The answer to the complaint admits the death of the decedent, that the policies were in force, the diversity of the parties, and at the pretrial, the capacity of the plaintiff as administratrix, the amount of the judgment against Cayson (but not the validity thereof) and that the decedent was driving a tractor at the time of the accident.

The defendant answers each of the six above mentioned claims as follows:

First: Jurisdictional amount is denied. Seaboard also denies that the plaintiff is entitled to recover under the policy and claims the following policy defenses: a) The workmen's compensation benefits received by the plaintiff constitute both a set-off against the amount of liability under the policy and a defense to any liability under the policy; (b) claims that due notice was not given to the company; and (c) claims that no formal demand for payment prior to suit was made. This defense is reiterated in the separate defenses to each of the six claims.

Second: Seaboard claims that under the terms of the policies, the coverage in policy #2 is excess above that in policy #1.

Third: Seaboard makes the claims: a) denies that conditions precedent have been satisfied; and b) claims that plaintiff is barred from recovery by the specific exemption relating to deaths arising from "the operation of farm machinery."

Fourth: Makes the claims of "Third" immediately preceding referring to policy #1.

Fifth: Seaboard, a) denies for lack of knowledge the amounts of the medical bills; b) denies that all conditions precedent have been performed; and c) affirmatively claims that plaintiff is not entitled to medical benefits because: 1. there is an exclusion for injuries arising from the operation of farm machinery; and 2. there is an "other insurance" exclusion which covers workman's compensation.

Sixth: Seaboard makes the claims of "Fifth" immediately preceding and also claims that policy #2 is excess insurance over policy #1.

The issues raised by the pleadings and argued in the briefs are as follows:

1) Whether the jurisdictional amount is satisfied here.

2) Whether the uninsured motorist coverage issues must be settled by arbitration.

3) Whether due notice was given to the company.

4) If the three issues just stated are decided in plaintiff's favor, the following questions are to be decided:

A) As to the uninsured motorist coverage (first and second claims):

I) Are the limits of liability of the two policies to be aggregated or is one primary and the other subject to the "excess-escape" clause:
II) In adjudging recovery, must the amount paid under the workmen's compensation law be subtracted and the insurance pay only the remainder;
III) If the workmen's compensation benefits are to be subtracted are they to be subtracted from the limits of liability of the company under one policy ($20,000.00) or the amount of the judgment obtained against the uninsured motorist ($23,000.00); and
IV) Is all liability of Seaboard relieved by the workmen's compensation payments?

B) As to accidental death benefits (third and fourth claims) does the policy exclusion for accidents "arising out of the operation of farm machinery" constitute a complete defense to liability?

C) As to medical coverage (fifth and sixth claims):

I) Does the policy exclusion for accidents "arising out of the operation of farm machinery" constitute a complete defense to liability;
II) Can plaintiff collect for medical bills in light of the workmen's compensation payment; and
III) Can plaintiff collect under both policies or only under one as primary and the other as "excess" insurance?

In reaching its decision this court will consider and decide the issues as they have been outlined above. This being a diversity case, Nebraska law is applicable.

1. JURISDICTIONAL AMOUNT:

Defendant claims that the jurisdictional amount does not exist in this case. Plaintiff asks judgment in excess of $10,000. The judgment of this court hereafter set forth will grant relief to the plaintiff in excess of $10,000.

It is clear that...

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9 cases
  • Booth v. Seaboard Fire & Marine Insurance Company
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 30 d5 Outubro d5 1970
    ...coverage under the medical payment clauses. Those findings are not contested upon appeal. The district court's opinion is reported at 285 F.Supp. 920 (1968). Upon review, we reverse as to the amount of the judgment against Seaboard being limited and hold that plaintiff was entitled under Ne......
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    ...insurance company to enforce hospital lien where statute extends lien only to "claims for damages"); Booth v. Seaboard Fire & Marine Insurance Company, 285 F.Supp. 920 (D.Neb.1968), rev'd on other grounds 431 F.2d 212 (8th Cir.1970) (no direct action against tort-feasor's insurer under subr......
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