Brightwell v. Rabeck, 16941
| Citation | 430 S.W.2d 252 |
| Decision Date | 28 June 1968 |
| Docket Number | No. 16941,16941 |
| Parties | George BRIGHTWELL, Appellant, v. Jerry Allen RABECK et al., Appellees. . Fort Worth |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Brown, Day & Crowley, and Sam Day, Fort Worth, for appellant.
Touchstone, Bernays & Johnson, and Charles Beresford, Dallas, for appellee, Jerry Allen Rabeck.
Cantey, Hanger, Gooch, Cravens & Scarborough, and William B. Davis, Fort Worth, for appellee, Employers Cas. Co.
Plaintiff George Brightwell brought suit against Jerry Allen Rabeck for damages growing out of negligent collision. In the same suit he sued Employers Casualty Company, liability insurer of his own automobile as of the time of the collision. As an alternative to his cause of action against Rabeck, in the event it be determined that such cause of action was destroyed because and as the result of Employers' settlement of Rabeck's damages through the process of 'friendly suit' (Rabeck having been a minor at time of such settlement), Brightwell asserted his right to damages as against the said Company because of its allegedly willful, malicious, arbitrary and/or negligent destruction of his cause of action in settling claim by the manner adopted.
Both Employers Casualty Company and Rabeck filed separate motions for summary judgment. They were heard and considered at the same time, and by one judgment both motions were granted.
We affirm the judgment for Employers Casualty Company. We do not consider the judgment for Rabeck subject to any action by us.
The basic purpose underlying liability insurance is that the insurer (for a consideration) accepts the responsibility to discharge the insured's obligation, if any, arising through negligent tort committed by the latter. The duties and responsibilities existent between the parties, insurer and insured, are contractual--and in any exact delineation thereof reference to the contract is necessary.
Generally, however, the insurer has the right to agree upon and effect a settlement with any third person it believes the insured is or may be obligated to for the payment of damages arising from tort--under the insurance contract the insurer believes to be in force and effect and enforceable as against it by the insured.
Ordinarily any settlement the insurer might make with such a third party would be proper to be treated as made For and in behalf of the insured. Such would always be true if the insured could be treated as having expressly or tacitly approved such a settlement in advance of its occurrence, or as having expressly or impliedly approved the settlement action after it occurred. However such settlement would not be proper to be considered as having been made For and in behalf of the insured in all instances. Rather would it be correct to deem the settlement as one made For and in behalf of the insurer to discharge its own potential liability under the contract to which only it and the insured were privy--and in discharge of its own liability though, as an incident thereto, the insured's supposed liability to the third party would thereby become extinguished.
In a case where the insured has neither consented to the settlement before it occurred nor ratified such thereafter no principal of estoppel could necessarily have application to convert the insurer's settlement into one made For and in behalf of the insured. Nothing incident thereto would validate a contention by the third party that the settlement made of his claim for damages against the insured should be deemed as having been made or effected by the insured and therefore operative to inhibit the prosecution of a suit against him by such insured for damages the insured might claim resultant from the same casualty which occasioned the third party's damages. Neither would such a settlement constitute an admission against interest by the insured. See Jackson v. Clark, 351 S.W.2d 292 () and cases cited.
It follows--from what has been said--that an insurer desirous of effecting a settlement with a third party may accomplish such whether its insured approves or not. It might be that the presumption would properly arise that settlement with the third party was desired by the insured perforce his report of the casualty out of which the third party's claim for damages arose. That presumption would be inhibited or destroyed, however, if notice be served upon the insurer by the insured that the latter had or intended to make claim for damages against the third party, or otherwise placed the insurer on notice that the fact of the report should not mean that settlement with or payment to the third party was desired.
Such was the condition of affairs when Employers Casualty Company settled with Rabeck. Though Brightwell had notified that company, as his insurer, of the facts giving rise to the claim against him by Rabeck he furthermore notified them that it was his intention to make a claim for damages done to him against said claimant.
Therefore the settlement made would be properly treated as having been made For and in behalf of Employers Casualty Company and not For and in behalf of Brightwell. Under such circumstances, evident in the record, Rabeck could not successfully claim estoppel as applied to suit for damages by Brightwell. If the law were otherwise it would be against public policy for the doors would be flung open for the perpetration of fraud in instances where the same insurer (or co-operative insurers) had liability insurance in effect on both automobiles involved in a collision and might be disposed to agree to settle the lesser claim so as to eliminate a prosecution of the greater. It would be unwise to declare a state of law offering temptation to employees of insurance companies who might be susceptible thereto.
In view of the fact that Rabeck was a minor the Employers Casualty Company concluded that it would be wise to accomplish the settlement it desired to make by promoting the filing of a suit in behalf of Rabeck as against Brightwell; in such proceeding to introduce evidence before ...
To continue reading
Request your trial
-
In re Fedex Ground Package Sys., Inc.
...States Constitution, the Texas Rules of Civil Procedure open with the most fundamental rule. See Brightwell v. Rabeck , 430 S.W.2d 252, 257 (Tex. Civ. App.—Fort Worth 1968, writ ref'd n.r.e.) ("The controlling rule is T.R.C.P. 1.") (citing "the discussion under the rule in Vernon's Texas Ru......
-
Members Mut. Ins. Co. v. Hermann Hosp.
...in accord with Texas decisions defining and discussing the term "liability insurance." The court in Brightwell v. Rabeck, 430 S.W.2d 252 (Tex.Civ.App.--Fort Worth 1968, writ ref'd n.r.e.), held that "the policy underlying liability insurance is that the insurer ... accepts the responsibilit......
-
Highlands Ins. Co. v. City of Galveston By and Through Its Bd. of Trustees of Galveston Wharves
...negligence. See Members Mutual Insurance Co. v. Hermann Hospital, 664 S.W.2d 325 (Tex.1984); Brightwell v. Rabeck, 430 S.W.2d 252, 255 (Tex.Civ.App.--Fort Worth 1968, writ ref'd n.r.e.); 6 B J. Appleman, Insurance Law & Practice § 4261 Whether or not the policies before us are property poli......
-
Air Shields, Inc. v. Spears
...will be construed with the formal court judgment, and claims against those not released will not be barred. Brightwell v. Rabeck, (Ft. Worth, Tex.Civ.App.) 430 S.W.2d 252; Rexroat v. Prescott, (Amarillo, Tex.Civ.App.) NRE, 570 S.W.2d 457; Leong v. Wright, (14 Houston, Tex.Civ.App.) 478 S.W.......