Broyles v. Commercial Union Insurance Co. of New York, Civ. A. No. 595.

• Decision Date: 26 August 1968
• Docket Number: Civ. A. No. 595.
• Citation: 287 F. Supp. 942
• Parties: J. Frank BROYLES and Henry D. Broyles by J. Frank Broyles, Guardian, Plaintiffs, v. COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK, Defendant and Third-Party Plaintiff, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, and Harry L. Bell and Margaret H. Bell, Co-Administrators of the Estate of Robert E. Bell, Deceased, Third-Party Defendants.
• Court: U.S. District Court — Western District of Arkansas

287 F. Supp. 942

J. Frank BROYLES and Henry D. Broyles by J. Frank Broyles, Guardian, Plaintiffs, v. COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK, Defendant and Third-Party Plaintiff, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, and Harry L. Bell and Margaret H. Bell, Co-Administrators of the Estate of Robert E. Bell, Deceased, Third-Party Defendants.

Civ. A. No. 595.

United States District Court W. D. Arkansas, Fayetteville Division.

August 26, 1968.

COPYRIGHT MATERIAL OMITTED

Ball & Gallman, Fayetteville, Ark., for plaintiffs.

Thomas Pearson, Fayetteville, Ark., for defendant and third-party plaintiff.

Shaw, Jones & Shaw, Ft. Smith, Ark., for third-party defendants.

OPINION

JOHN E. MILLER, Senior District Judge.

There is before the court a motion of plaintiffs filed August 13, 1968, for further relief pursuant to 28 U.S.C.A. § 2202.

In considering this motion, it is necessary for the court to review the pleadings and the various proceedings heretofore had in the case.

On June 3, 1966, Mr. and Mrs. Harry L. Bell, Co-Administrators of the Estate of Robert E. Bell, deceased, commenced an action against Frank H. Broyles and Henry D. Broyles, a minor, by J. Frank Broyles, Guardian, in the Circuit Court of Washington County, Arkansas, seeking to recover from the defendants $100,000 damages for the alleged wrongful death of plaintiffs' intestate.

On November 4, 1966, the plaintiffs filed their complaint in this court against the defendant, Commercial Union Insurance Company of New York, seeking a judgment declaring that under the provisions of policy No. 138AB34-92-47, renewal No. 298AB30-4123, that said defendant is required to defend the suit pending in the Washington Circuit Court and to pay any judgment that may be rendered in said action against the plaintiffs, or either of them, not exceeding the policy limits; and that plaintiffs recover their damages by reason of defendant's failure to defend, a reasonable fee for their attorney herein, and for all other proper relief.

That the policy issued to J. Frank Broyles by defendant was in full force and effect on April 16, 1964, the date the deceased was injured.

Under Coverage A the policy provides:

"To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

"A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called `bodily injury,' sustained by any person;

arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient."

Part I of the amendatory endorsement provides that the following are "insureds":

"(b) with respect to a non-owned automobile,

(1) the named insured,

(2) any relative, but only with respect to a private passenger automobile or trailer,

provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission, * * *"

On November 17, 1966, the defendant filed a motion to dismiss, which motion was denied on November 22, 1966.

The defendant, Commercial Union Insurance Company of New York, on November 26, 1966, filed its answer denying certain allegations of the complaint, and alleging "that if the plaintiff, Henry D. Broyles, was driving the automobile in question at the time and place in question, that he was doing so without the permission of his father, J. Frank Broyles, and without the knowledge of his father, J. Frank Broyles, and without the knowledge and permission of the owner of said automobile, to-wit: Mrs. C. D. Matthews."

That the automobile was not owned by either of the plaintiffs and was being operated without the permission of the owner, and was not being operated under such circumstances as to be considered reasonably with the permission of the owner; that under the terms of the policy the defendant is not obligated to defend the suit pending in the Circuit Court or to pay any judgment that might be recovered therein.

On November 29, 1966, the defendant filed an amendment to its answer, in which it is alleged that the automobile being used at the time was covered by liability insurance in standard form and with standard provisions issued for a valuable consideration to the owner of the car, Mrs. C. D. Matthews, by The Fidelity and Casualty Company of New York, which policy was in force and effect, and insured Mrs. Matthews and others driving said automobile against loss or damage to others because of the operation of the automobile. Said policy also contained the standard provision to defend any suit, however groundless or fraudulent, filed against anyone covered by the policy.

It was further alleged that the plaintiff Henry D. Broyles became an insured under the policy issued by The Fidelity and Casualty Company of New York, and is entitled to the coverage and protection afforded by said policy, and "that as between this defendant and The Fidelity and Casualty Company of New York the primary liability, if any, rests upon The Fidelity and Casualty Company of New York, and the primary obligation and duty, if any, to defend the suit filed by Harry L. Bell and Margaret H. Bell, Co-Administrators of the Estate of Robert E. Bell, deceased, pending in the Washington Circuit Court, rests upon The Fidelity and Casualty Company of New York."

That the plaintiff Henry D. Broyles at the time of the death of Robert E. Bell, deceased, was 15 years old, and did not have a driver's license, and "that the operation of same, being without the permission of the plaintiff, J. Frank Broyles, would not and did not impute the negligence, if any, of Henry D. Broyles to the said J. Frank Broyles."

The defendant prayed for a declaration of its rights as against the plaintiffs under the provisions of the policy of insurance issued by it to the plaintiff J. Frank Broyles; for a declaration of its rights as against The Fidelity and Casualty Company of New York under the policy of insurance issued by it to Mrs. C. D. Matthews, and for a declaration of its rights as against the Co-Administrators of the Estate of Robert E. Bell, deceased.

On December 3, 1966, with leave of the court, the defendant, Commercial Union, as a third party plaintiff, filed its complaint against The Fidelity and Casualty Company of New York and Harry L. Bell and Margaret H. Bell, Co-Administrators, as third party defendants, and substantially repeated the allegations of its answer to the complaint and prayed for the same relief.

On December 7, 1966, the third party defendants, Co-Administrators, filed their answer to the third party complaint.

On December 21, 1966, the third party defendant The Fidelity and Casualty Company of New York filed its answer to the third party complaint, in which it denied certain material allegations, but admitted that it issued a policy of automobile liability insurance to C. D. Matthews, d/b/a Matthews Sheet Metal Company, insuring said owner and other persons operating said automobile with the permission of the named insured; that the policy contains a provision which extends coverage to persons other than the named insured for liability for bodily injury provided the actual use of the automobile was with the permission of the named insured; and further alleges that if Henry D. Broyles was driving the automobile in question at the time and place of the collision, he was doing so without the permission of the named insured, and that it, the third party defendant, is not required to defend the suit pending in the Circuit Court of Washington County, and is not liable for the payment of any judgment that may be rendered against the plaintiffs, or either of them.

The definition of "insured" as contained in the policy issued by the third party defendant is as follows:

"The unqualified word `insured' includes the named insured and also includes any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, * * *"

The prayer of the answer is that the court declare that the third party defendant is not required to defend the Circuit Court suit or any other action which may be filed as a result of the automobile collision in question, and that it is not liable for any judgment that may be rendered in said action or any other action which may be filed.

With the issues thus formed by the pleadings, the parties proceeded to take the depositions of various witnesses apparently for the purpose of using such depositions at the trial. The accident happened at Fayetteville, Ark. All the witnesses are residents of Fayetteville, which is 60 miles from Fort Smith, with the exception of Mr. and Mrs. Matthews, who live at Little Rock, Ark.

All parties filed motions for summary judgment based on the issues presented in the pleadings.

On August 10, 1967, the court, after a consideration of the motions, wrote counsel for all parties as follows:

"All parties have submitted briefs in support of their respective contentions, and the court has considered the motions, along with the briefs and the authorities cited and relied upon by the parties.

"Rule 56(c), Fed.R.Civ.P., provides:

"`The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

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