Chambless v. National Industrial Laundries, Civ. A. 2202.

• Decision Date: 07 March 1957
• Docket Number: Civ. A. 2202.
• Citation: 149 F. Supp. 504
• Parties: Nona Mae CHAMBLESS, individually and as Guardian of the persons and estates of Debora Chambless, Brenda Chambless and Jerry Wayne Chambless, Minors, Plaintiff, v. NATIONAL INDUSTRIAL LAUNDRIES, a corporation, and Firemen's Fund Indemnity Company, a corporation, Defendants.
• Court: U.S. District Court — Eastern District of Texas

149 F. Supp. 504

Nona Mae CHAMBLESS, individually and as Guardian of the persons and estates of Debora Chambless, Brenda Chambless and Jerry Wayne Chambless, Minors, Plaintiff, v. NATIONAL INDUSTRIAL LAUNDRIES, a corporation, and Firemen's Fund Indemnity Company, a corporation, Defendants.

Civ. A. 2202.

United States District Court E. D. Texas, Tyler Division.

March 7, 1957.

Charles F. Potter, of Spruiell, Lowry, Potter & Lasater, Tyler, Tex., for plaintiff.

Eugene Cavin, of Ramey, Calhoun, Brelsford, Hull & Flock, Tyler, Tex., for defendants.

SHEEHY, Chief Judge.

Plaintiff, a resident and citizen of Smith County, Texas, individually and as Guardian of the persons and estates of her minor children, Debora Chambless, Brenda Chambless and Jerry Wayne Chambless, is seeking to recover the damages she alleges she and her said minor children sustained because of the death of her husband, John E. Chambless, whose death occurred on October 2, 1956, as a result of injuries he received in a motor vehicle collision which occurred on that date in the State of Louisiana between a truck in which said John E. Chambless was riding and a truck owned by the Defendant, National Industrial Laundries, and being operated by an employee of said National Industrial Laundries while in the course of his employment with said National Industrial Laundries. The National Industrial Laundries is a New Jersey corporation. A recovery is sought against the Firemen's Fund Indemnity Company, a California corporation, because of and under a policy of public liability insurance, covering the National Industrial Laundries truck involved in the collision, it had previously issued to National Industrial Laundries, which policy of insurance was in full force and effect at the time of said collision.

The Defendant, Firemen's Fund Indemnity Company, filed a motion to dismiss this action as to it, and the Defendant, National Industrial Laundries, filed a motion to dismiss this action as to the Defendant, Firemen's Fund Indemnity Company. The parties have filed briefs as to the questions presented by said motions to dismiss. A hearing on said motions has been had and said motions are now before the Court for determination.

The policy of insurance issued by the Firemen's Fund Indemnity Company, above referred to, provides, in effect, that no action shall lie against the Firemen's Fund Indemnity Company unless, as a condition precedent thereto, the amount of the insurer's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the Firemen's Fund Indemnity Company.

The Plaintiff contends that this action may be maintained against the Firemen's Fund Indemnity Company, hereinafter referred to as the Indemnity Company, under Louisiana Statutes Annotated — Rev.Stat. 22:655 (1950).¹ The Defendants contend, in support of the motions to dismiss, that the right to sue the insurer directly as given by the Louisiana "direct action statute", just mentioned, is procedural and not substantive, and, therefore, since under the law of Texas such a direct action against the insurer as is this action cannot be maintained, this action as against the Indemnity Company cannot be maintained in this Court. In support of this contention the Defendants rely on Wells v. American Employers' Insurance Company, 5 Cir., 132 F.2d 316. There is no question but what the decision in the Wells case would compell this Court to sustain the motions to dismiss provided that decision is still the law. Is it still the law? I think not. As pointed out by the Court of Appeals for the Fifth Circuit in Fisher v. Home Indemnity Co., 198 F.2d 218, 221, the holding in the Wells case to the effect that the right of direct action against the insurer under the Louisiana "direct action statute" was procedural was made because the Louisiana courts were then holding that such statute was procedural and the Court of Appeals for the Fifth Circuit accepted those holdings as authoritative. It is further pointed out in the Fisher case that the Court of Appeals for the Fifth Circuit, subsequent to the decision in the Wells case and in New Amsterdam Casualty Co. v. Soileau, 167 F.2d 767, 769, 6 A.L.R.2d 128, undertook to determine for themselves the effect of the said "direct action statute" and determined that such "direct action statute" gave a substantive right to the injured party to a direct action against the insurer. It is further pointed out in the Fisher case that, in West v. Monroe Bakery, 217 La. 189, 46 So.2d 122, decided subsequent to the Wells decision, the Supreme Court of Louisiana likewise held that the...