Capitol Indemnity Corp. v. St. Paul Fire & Marine Ins. Co.
Decision Date | 29 December 1972 |
Docket Number | No. 68-C-162.,68-C-162. |
Parties | CAPITOL INDEMNITY CORPORATION, a Wisconsin corporation, individually and as Assignee of Joseph M. Roblee, Plaintiff, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a Minnesota corporation, Defendant. |
Court | U.S. District Court — Western District of Wisconsin |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Bruce Gillman, of Arthur, Tomlinson & Gillman, Madison, Wis., for plaintiff.
Phillip E. Crump, of Borgelt, Powell, Peterson & Frauen, Milwaukee, Wis., for defendant.
This is a civil action to recover on an amended money judgment rendered by the Circuit Court of Waukesha, Wisconsin, against the defendant's named insured and to recover expenses for attorney's fees allegedly incurred as a result of defendant's refusal to defend said action. Plaintiff's motion to amend the complaint and for summary judgment with respect to all three counts of the complaint is presently before this court.
I find that there is no genuine issue with respect to the facts which appear hereinafter under the heading of "Facts."
Plaintiff, Capitol Indemnity Corporation (hereinafter referred to as "Capitol") is an insurance corporation organized under the laws of Wisconsin with its principal place of business in Wisconsin. Defendant, St. Paul Fire and Marine Insurance Company (hereinafter referred to as "S.P.I.") is an insurance corporation organized under the laws of Minnesota with its principal place of business in Minnesota.
Prior to August 27, 1963, Joseph M. Roblee was a certified public accountant practising as a sole proprietor under the name of Joseph M. Roblee and Company. Prior to August 27, 1963, Roblee prepared financial statements and audit reports which were subsequently found by the Circuit Court of Waukesha, Wisconsin, to be false and misleading.
On or about August 27, 1963, Roblee entered into a partnership with Earl D. Johnson for the practice of accounting, which partnership was known as Roblee-Johnson & Company. Said partnership had its principal office in Minnesota with two branch offices in Minnesota and two branch offices in Wisconsin. The written partnership agreement contained no express provision whether the partnership was assuming liabilities incurred by either Roblee or Johnson prior to its formation.
On or about December 15, 1963, defendant St. Paul Fire and Marine Insurance Company issued a three-year accountants' professional liability policy in the amount of $100,000 to the named insured, Roblee-Johnson and Company. This policy provided in part:
Said policy was issued by a Minnesota insurance agent and was countersigned in Minnesota.
As of February 1, 1964, Roblee allowed to lapse the professional liability policy issued by Fireman's Fund American Insurance Companies, which had insured him while doing business as Joseph M. Roblee and Company.
Prior to about September 19, 1964, neither Roblee nor any of his employees or associates had any knowledge of the Capitol claim nor of the circumstances which resulted in the claim. On or about September 18, 1964, Capitol notified Roblee by letter that it was asserting a claim based upon accounting services performed by Joseph M. Roblee and Company prior to August 27, 1963. This letter is addressed to Joseph M. Roblee & Company, attention of Roblee. It states in part: "This is to advise you that the undersigned . . . represent Capitol Indemnity Corporation in their claim against your company for damages resulting from its reliance on various financial statements which were prepared by your accountants." (Emphasis added.)
On or about November 20, 1964, Capitol notified Johnson by letter that it was asserting a claim based upon the accounting services performed by Joseph M. Roblee & Company prior to August 27, 1963. The letter refers to Johnson as a registered principal and partner of Roblee-Johnson and Company, to said partnership as the "successor" of Joseph M. Roblee & Company, and further states "We have been informed that your firm carries the liability insurance which covers the claim in question."
On December 9, 1964, Roblee sent a copy of the September 18, 1964, Capitol letter to S.P.I. In an accompanying letter Roblee's attorney noted that Capitol's letter had been addressed to Joseph M. Roblee & Company, and further stated:
Receipt of this letter by S.P.I. was acknowledged on December 23 and 29, 1964.
Johnson never forwarded to S.P.I. Capitol's letter of November 20, 1964, nor any other pleadings relating to Capitol's claim.
Between December 30, 1964, and October 29, 1965, Capitol's attorney met with S.P.I.'s attorney on several occasions to discuss Capitol's claim. At least twice Capitol's attorney made an authorized offer to settle said claim for substantially less than $100,000 but received either no...
To continue reading
Request your trial-
American Motorists Ins. Co. v. Trane Co.
...103 (1967). Doubts about coverage must be resolved by the insurer in favor of the insured. Capitol Indemnity Corp. v. St. Paul Fire & Marine Ins. Co., 357 F.Supp. 399, 412-13 (W.D.Wis.1972). Trane relies on Sola for the proposition that the duty to defend should be determined by an assessme......
-
Buntin v. Continental Ins. Co.
...obligations is exposed to greater liability than an insurer who breaches both duties. See Capitol Indemnification Corp. v. St. Paul Fire & Marine Ins., 357 F.Supp. 399 (W.D.Wis. 1972); Keeton, supra, at 1160. As the Supreme Court of California "Certainly an insurer who not only rejected a r......
-
Grube v. Daun
...control Achter's defense, as described in the policy, by inappropriately refusing to defend. See Capitol Indem. Corp. v. St. Paul Fire & Marine Ins. Co., 357 F.Supp. 399, 413 (W.D.Wis.1972). 7 The duty to defend and the insurer's right to control the defense are contractual obligations "in ......
-
Chrysler Corp. v. Lakeshore Commercial Finance Corp.
...Inc., Div. of Wis. Tanktainer, Inc., 332 F.Supp. 651, 652 (E.D.Wis., 1971), and see Capitol Indemnity Corp. v. St. Paul Fire and Marine Ins. Co., 357 F.Supp. 399, 410 (W.D.Wis., 1972) with regard to matters involving the propriety of collateral 4 Plaintiff acknowledged on appeal to the Wisc......