Commercial Standard Insurance Co. v. Liberty Plan Co.
| Citation | 283 F.2d 893 |
| Decision Date | 01 November 1960 |
| Docket Number | No. 6393.,6393. |
| Parties | COMMERCIAL STANDARD INSURANCE COMPANY, a corporation, Appellant, v. LIBERTY PLAN COMPANY, an Express Business Trust, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Clyde J. Watts, Oklahoma City, Okl., for appellant.
Sam S. Gill, Oklahoma City, Okl., for appellee.
Before HUXMAN, LEWIS and BREITENSTEIN, Circuit Judges.
Appellee-plaintiff, Liberty Plan Company, obtained a $9,273.06 judgment against appellant-defendant, Commercial Standard Insurance Company, for a theft or embezzlement loss covered by a fidelity bond issued by the insurance company. Jurisdiction is based on diversity.
Two employees, Scott and Manning, are involved. As to each the limit of the insurer's liability is $5,000. Each was a cashier. Scott had exclusive control over cash drawer number one and Manning similar control over cash drawer number two. A fake holdup, staged by one Ferrer, resulted in the loss of $9,669.61 from cash drawer number one and of $1,717.86 from cash drawer number two.1 The insurer admits that it is liable for its maximum coverage of $5,000 on account of the loss from the cash drawer under the control of Scott and contends that on its coverage of Manning it is liable only for the cash taken from her drawer, i. e. $1,717.86, less the proportionate share of the salvage. The court below found that there was collusion between the two cashiers and gave judgment for the entire amount, less the recovery.
The policy insures against any loss which a scheduled employee may "directly or by collusion with others, cause to the Employer, * * * not exceeding, however, the amount hereinafter set forth, through larceny, theft, embezzlement, * * * or any other act of fraud or dishonesty." At the trial, primary attention was paid to the contention of the insurer that its bond was not in force at the time of the loss. This was decided against the insurer and is not an issue in this appeal. No evidence was introduced as to collusion and the court's finding in that regard is without any basis except that which may be found in admissions of the insurer.
The answer alleges that "the funds of Plaintiff were procured by collusion between employees of the Plaintiff, Nancy Gilbert Scott and JoAnn Manning, with one Julio Valentine Ferrer to stage a fake holdup, as a part of a scheme between the said parties for embezzlement of the funds of the Plaintiff." In the course of the trial, counsel for the insurer stated that Scott denied participation in the fake holdup. Counsel for the insured asserted that such participation was admitted by the answer. Insurer's counsel then said that if the answer went that far it should not have and requested permission to withdraw the allegation so far as Scott was concerned. No ruling was made on this request.
The insured insists, and the insurer does not deny, that a general conspiracy participated in by Scott, Manning and Ferrer for the unlawful taking of the funds would result in liability to the full extent of the bond on Manning. This is in accord with the rule that each conspirator is jointly and severally liable for the damages resulting from the conspiracy.2 Counsel make no distinction between the words "collusion" and "conspiracy" and for the purposes of this case we can see no material distinction. As no evidence was introduced on this point, the existence of a conspiracy or collusion is dependent upon the insurer's admissions. The pertinent allegation in the answer is not skillfully drafted. Conceivably, it is an admission of a three-party collusion or of one or more two-party collusions. We deem it unnecessary to explore the niceties of language or the grammatical technicalities. However, it is significant that the only finding of the court bearing on collusion reads that "the said named cashiers by collusion and embezzlement caused the total of said funds to be removed and taken," and makes no reference to Ferrer, the holdup man.
In the lower court, insurer's counsel stated that Scott did not participate in the activities which caused the loss, asked leave to amend the answer so as to...
To continue reading
Request your trial
-
U.S. Industries, Inc. v. Touche Ross & Co.
...in a conspiracy are jointly and severally liable for all damages resulting from the conspiracy. Commercial Standard Ins. Co. v. Liberty Plan Co., 283 F.2d 893, 894 (10th Cir.1960). See also Kashi v. Gratsos, 790 F.2d 1050, 1054-55 (2d Cir.1986); Beltz Travel Serv. Inc. v. International Air ......
-
Featherstone v. Barash, 7804.
...v. Mains, 107 F.2d 377 (10th Cir. 1939); United States v. Horsfall, 270 F.2d 107 (10th Cir. 1959); Commercial Standards Insurance Co. v. Liberty Plan Co., 283 F.2d 893 (10th Cir. 1960); State of Utah v. United States, 304 F.2d 23 (10th Cir. 1962), cert. den. 371 U.S. 826, 83 S.Ct. 47, 9 L.E......
-
James B. Lansing Sound, Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa.
...the insured's losses, notwithstanding that the insurer denied liability and refused to pay. Cf. Commercial Standard Insurance Co. v. Liberty Plan Co., 283 F.2d 893, 894 n. 1 (10th Cir.1960) (prorating amount of recovered embezzled money because money could not be traced to specific source a......
-
Maryland Cas. Co. v. Clements
...Leader Clothing Co. v. Fidelity & Casualty Company of New York, 237 F.2d 7 (10th Cir. 1956), and Commercial Standard Insurance Co. v. Liberty Plan Co., 283 F.2d 893 (10th Cir. 1960), both cited by Maryland, are not in This Court recognizes that it has often been stated that ambiguous provis......