Brassil v. Maryland Cas. Co.

Decision Date24 February 1914
Citation104 N.E. 622,210 N.Y. 235
PartiesBRASSIL v. MARYLAND CASUALTY CO.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Action by Daniel S. Brassil against the Maryland Casualty Company. From a judgment on a verdict for plaintiff affirmed by the Appellate Division, First Department (147 App. Div. 815,133 N. Y. Supp. 187) by a divided court, defendant appeals. Affirmed.

In June 1899, the defendant, a casualty insurance company, issued to the plaintiff its policy of insurance whereby it agreed, in consideration of the stipulated premium, to indemnify the plaintiff ‘against loss from common-law or statutory liability for damages on account of bodily injuries' suffered by any of his employés. The limit of its liability for an accident to any one employé was fixed at $1,500. During the term of the policy, one of the plaintiff's employés, a young man named Loughlin, under the age of 21, was injured. He and his father commenced actions against the plaintiff to recover damages on account of the accident. While these actions were pending, the plaintiff received an offer from the attorneys for the Loughlins stating that they would settle the actions for $1,500. This the plaintiff communicated to the defendant, and requested and urged its permission to settle upon that basis. The defendant refused the request upon the ground that the sum named was excessive. It elected to defend the actions, as it had the right to do under the provisions of the policy, and the actions proceeded to trial; the defendant taking control of the defense thereof. They resulted in judgments against the plaintiff here aggregating over $6,000.

After all this had transpired, and the plaintiff had been thus mulcted in damages exceeding by $4,500 the amount for which he was insured, the defendant wrote to the plaintiff stating that it did not consider an appeal would be advantageous, that it would not prosecute an appeal, but ‘holds itself ready to comply with the terms of its contract with you in case you should satisfy the judgment rendered against you.’ It further signified its willingness to permit the plaintiff to substitute his own attorney to prosecute an appeal. To this letter the plaintiff replied, in substance, that inasmuch as the defendant had refused the offer to compromise the Loughlin suits for $1,500, and through its conduct had inflicted a much greater liability upon him, he would hold the defendant liable for the full amount.

Thereafter the plaintiff, through his own attorney, appealed from the main Loughlin judgment to the Appellate Division of the Supreme Court, where it was unanimously affirmed. He procured leave to appeal to this court, and here the judgment was reversed for errors committed upon the trial and a new trial was ordered. Loughlin v. Brassil, 187 N. Y. 128, 79 N. E. 854. No new trial was had, however, and the Loughlin actions were subsequently dismissed for want of prosecution.

This action was then commenced to recover from the defendant the expense to which the plaintiff had been subjected in prosecuting the appeal from the Loughlin judgment, including his attorney's fees amounting, as claimed by the plaintiff, to $2,611. He recovered a judgment of $2,211. On appeal by the defendant from that judgment to the Appellate Division there was an affirmance. The defendant has now appealed to this court.

The policy first insured the plaintiff ‘against loss from common-law or statutory liability for damages' to his employés. It then contained certain clauses called ‘special agreements,’ among which was a limitation of $1,500 for any accident to an employé. The other ‘special agreements' have no bearing upon this controversy. Attached to the policy and printed on the reverse side thereof were a number of so-called ‘conditions precedent.’ Among these conditions were the following:

(2) If * * * any suit is brought against the assured to enforce a claim for damages on account of an accident covered by this policy, immediate notice thereof shall be given to the company, and the company will defend against such proceeding, in the name and on behalf of the assured, or settle the same at its own cost, unless it shall elect to pay the assured the indemnity provided for.

(3) The assured shall not settle any claim, except at his own cost, nor incur any expense, nor interfere in any negotiation or settlement or in any legal proceeding without the consent of the company previously obtained in writing. * * *

(8) No action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue. No such action shall lie unless brought within the period within which a claimant might sue the assured for damages unless at the expiry of such period there is such an action pending against the assured, in which case an action may be brought against the company by the assured within thirty days after final judgment had been rendered and satisfied as above. In no case except that of minors shall any action lie against the company after the expiration of six years from the date of the given injuries or death. The company does not prejudice by this clause any defenses to such action which it may be entitled to make under this policy.’James J. Mahoney, of New York City, for appellant.

Thomas F. Magner, of Brooklyn, for respondent.

WERNER (after stating the facts as above).

The action is novel. The question is whether an ‘insured’ under a contract of indemnity...

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94 cases
  • Auto Mut. Indem. Co. v. Shaw
    • United States
    • United States State Supreme Court of Florida
    • November 9, 1938
    ...... Wisconsin Zinc Co. v. Fidelity & Deposit Co., 162. Wis. 39, 155 N.W. 1081, page 1086, Ann.Cas.1918C, page 399,. [184 So. 857] . text 403, 404, when the two rules were before that court, and. ... furnish. St. Louis Dressed Beef, etc., Co. v. Maryland. Casualty Co., 201 U.S. 173, 26 S.Ct. 400, 50 L.Ed. 712;. Butler Bros. v. American Fidelity ... 830] that the insurer must act in goof faith toward the. insured, Brassil v. Maryland Casualty Co., 210 N.Y. 235, 104 N.E. 622, L.R.A.1915A, 629; Hilker v. Western. ......
  • INTERN. SURPLUS LINES v. Univ. of Wyo. Res. Corp., 92-CV-0310-B.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • April 25, 1994
    ...(discussing the seminal decisions in Hilker v. Western Auto Ins. Co., 204 Wis. 1, 235 N.W. 413, 414 (1931) and Brassil v. Maryland Cas. Co., 210 N.Y. 235, 104 N.E. 622 (1914)). Although the parameters of this tort are far from certain or uniform among the various jurisdictions that have rec......
  • McCullough v. Golden Rule Ins. Co., 88-193
    • United States
    • United States State Supreme Court of Wyoming
    • April 5, 1990
    ...were no remedy for so obvious a wrong as was inflicted upon this plaintiff.' " Id. 231 N.W. at 261 (quoting Brassil v. Maryland Casualty Co., 210 N.Y. 235, 104 N.E. 622, 624). On rehearing, Hilker v. Western Automobile Insurance Co. of Ft. Scott, Kan., 204 Wis. 1, 235 N.W. 413, 415-16 (1931......
  • 82 Hawai'i 120, Best Place, Inc. v. Penn America Ins. Co., 16065
    • United States
    • Supreme Court of Hawai'i
    • June 5, 1996
    ...issue was whether a liability insurer wrongfully refused to settle a third-party claim. 4 The early case of Brassil v. Maryland Casualty Co., 210 N.Y. 235, 104 N.E. 622 (1914), recognized the principle that the obligation of good faith and fair dealing underlies all written agreements and t......
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1 books & journal articles
  • Establishing Bad Faith
    • United States
    • James Publishing Practical Law Books Insurance Settlements - Volume 2 Effective negotiation
    • May 19, 2012
    ...The doctrine of bad faith and fair dealing in the insurance context was apparently first discussed in Brassil v. Maryland Cas. Co. , 210 N.Y. 235 (1914), a case in which the defendant insurer refused to appeal an adverse judgment against the insured. The insured hired his own lawyer for the......

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