Carlile v. Vari

• Decision Date: 28 February 1961
• Citation: 113 Ohio App. 233,177 N.E.2d 694
• Parties: , 17 O.O.2d 217 CARLILE, a Minor, Appellant, v. VARI; The Gulf Ins. Co., Appellee.
• Court: Ohio Court of Appeals

Page 233

113 Ohio App. 233

177 N.E.2d 694, 17 O.O.2d 217

CARLILE, a Minor, Appellant, v. VARI; The Gulf Ins. Co., Appellee.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Feb. 28, 1961.

Syllabus by the Court

A provision in an automobile liability policy, by which the insurer agrees to pay all costs and all interest accruing after entry of judgment until the company has paid, tendered, or deposited in court, such part of the judgment as does not exceed the limit of the company's liability thereon, limits the liability of the insurer, in respect of interest, to interest after judgment upon that part of the judgment for which it is liable, to the exclusion of interest on that part of the judgment which exceeds its liability under the policy.

Paul W. Brown, Youngstown, for appellant.

George M. Jones, Youngstown, for appellee.

DOYLE, Presiding Judge.

This is an appeal from a judgment of the Court of Common Pleas of Mahoning County, in which the court found for the defendant The Gulf Insurance Company, and against the plaintiff, Clifford C. Carlile, next friend of Gary Carlile, a minor, aged six.

The question raised and decided in the trial court is stated by the appellant, on behalf of the infant, as follows:

'Where judgment is obtained against the insured driver of a motor vehicle in an amount in excess of the policy limits of the policy applicable to the situation, does the insuring company stand responsible for all interest on the judgment, or only for interest on that part of the judgment which does not exceed the limits of the policy.'

A further statement of the nature of the controversy and the facts, so far as material, will follow in this opinion.

In the agreed statement of facts, upon which the case was tried, and the pleadings and other original papers which are now before us in the appeal, it appears that the infant, Gary Carlile, recovered a judgment in the amount of $16,000 against Dorothy K. Vari, growing out of personal injuries received by him as the proximate result of the negligence of Mrs. Vari in the operation of her automobile on a public highway in the city of Youngstown.

The judgment was entered in the trial court on April 10, 1958; a motion for a new trial was overruled on May 9, 1958; the judgment was affirmed in the Court of Appeals on November 20, 1958; and a motion to certify the record to the Supreme Court of Ohio was disallowed by that court on February 19, 1959.

Thereafter, in February, 1959, The Gulf Insurance Company, which had issued its liability policy to one Albert Vari as the named insured, but which also included Dorothy K. Vari as a person additionally insured, deposited with the clerk of courts of Mahoning County the sum of five thousand two hundred sixty-two dollera and fifty cents ($5,262.50), which it claimed was the limit of its liability, calculated on the basis of five thousand dollars coverage, plus interest on five thousand dollars from the date of the judgment until the time of the deposit with the clerk of courts.

On April 24, 1959, the plaintiff filed a supplemental petiton under the provisions of Section 3929.06, Revised Code, to obtain further satisfaction from the insurance company of his prior judgment against the insured. The pleading sought recover of the sum of five hundred thirty-seven dollars and fifty cents ($537.50), which was claimed as the unpaid balance of the interest on the entire judgment of sixteen thousand dollars ($16,000) from the time that the judgment was entered until the money was deposited with the clerk of courts.

The pertinent language of the insurance contract which must govern this court's decision appears as follows:

'II. Defense, Settlement, Supplementary Payments.

'With respect to such insurance as is afforded by this policy for bodily injury liability, and for property damage liability, the company shall:

'* * *

'(2) Pay all expenses incurred by the company, all costs taxed against the insured in any such suit, and all interest accruing after entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company's liability thereon.'

The litigants further say, in their agreed statement of facts, that:

'The sole issue involved in the supplemental petition is whether or not the Gulf Insurance Company is responsible for interest on the total judgment or on just that part of the judgment for which it is responsible. The policy in effect at the time of the accident is popularly referred to as a five and ten policy; that is to say, the responsibility was limited by contract to five thousand dollars ($5,000) for any one person's injuries arising out of an accident.

'It is agreed that if interest of the entire judgment is the obligation of the Gulf...