Continental Cas. Co. v. Ocean Acc. & Guarantee Corp.

• Court: Delaware Superior Court
• Writing for the Court: LYNCH
• Citation: Continental Cas. Co. v. Ocean Acc. & Guarantee Corp., 209 A.2d 743, 58 Del. 338, 8 Storey 338 (Del. Super. 1965)
• Decision Date: 22 April 1965
• Parties: , 58 Del. 338 CONTINENTAL CASUALTY COMPANY, a corporation of the State of Illinois, Plaintiff, v. The OCEAN ACCIDENT AND GUARANTEE CORPORATION, Limited, a corporation of Great Britain, Leonard Richards, Inc., a corporation of the State of Delaware, Wilmington Truck Rental Company, Inc., a corporation of the State of Delaware, Daniel F. Kelleher, Adm. De Bonis Non Cum Testamento Annexo of the Estate of Leonard Richards, Jr., Deceased, John Sentmen, Jr., Alice D. Sentman, John Sentman, III, and Kay Sentman, infants, by their next friend, John Sentman, Jr., and Leona M. Hamon, Defendants.

Page 743

209 A.2d 743

8 Storey 338, 58 Del. 338

CONTINENTAL CASUALTY COMPANY, a corporation of the State of Illinois, Plaintiff, v. The OCEAN ACCIDENT AND GUARANTEE CORPORATION, Limited, a corporation of Great Britain, Leonard Richards, Inc., a corporation of the State of Delaware, Wilmington Truck Rental Company, Inc., a corporation of the State of Delaware, Daniel F. Kelleher, Adm. De Bonis Non Cum Testamento Annexo of the Estate of Leonard Richards, Jr. Deceased, John Sentmen, Jr., Alice D. Sentman, John Sentman III, and Kay Sentman, infants, by their next friend, John Sentman, Jr., and Leona M. Hamon, Defendants.

Superior Court of Delaware, New Castle County.

April 22, 1965.

Frank J. Miller (of Walker, Miller & Wakefield), Wilmington, for plaintiff Continental Casualty Co. ¹

Prickett & Prickett, Wilmington, for defendant Ocean Accident and Guarantee Corporation, Limited. ²

Vincent Theisen (of Theisen & Lank), Wilmington, for defendants Leonard Richards, Inc. and Daniel F. Kelleher, Adm. De Bonis Non Cum Testamento Annexo of Estate of Leonard Richards, Jr., Deceased. ³

David B. Coxe, Jr. and Carl Schnee (of Coxe, Booker, Walls & Cobin), Wilmington, for defendants John Sentman, Jr., et al. ⁴

Defendant Wilmington Truck Rental Co., Inc., has made no appearance in the case. ⁵

LYNCH, Judge.

It appears from the complaint that there was a collision on July 26, 1959 on the Kennett Pike in Christiana Hundred, between a Volkswagen panel truck, owned by Rental Company and leased to Richards, Inc., and driven by Leonard Richards, Jr., now deceased, and an automobile driven by defendant Hamon, in which Mrs. Hamon and the defendants Sentmans were riding, resulting in the serious personal injuries of Mrs. Hamon and the Sentmans. Mr. Richards was killed in the collision.

Continental had issued a policy of automobile liability insurance to Rental Company which covered liability of the lessees of its motor vehicles. The complaint charges Leonard Richards, Jr. and/or Richards, Inc. had a policy of automobile liability insurance with defendant Ocean, which was in effect on the date of the collision; it was further alleged that Ocean has denied coverage and refuses to defend litigation brought by defendants Mrs. Hamon and the Sentmans against the Richards' Estate and Richards, Inc. Plaintiff, Continental, also claims subrogation rights as against Ocean for any liability payments it has had to make to the injured defendants. Continental asks the court to declare----

'(1) The existence and extent of coverage of the potential liabilities of Executrix and Richards, Inc. to Hamon and Sentmans under policies issued to Executrix and Richards, Inc. by Ocean.

'(2) The duty of Ocean to defend against such potential liabilities.

'(3) The existence and extent of coverage of the potential liabilities of Executrix and Richards, Inc. to Hamon and Sentmans under the policy issued by Continental to Rental Co.

'(4) The duty of Continental to defend such potential liabilities.

'(5) Whether or not the claims against Rental Co. should be dismissed as provided in 21 Del.C. § 6102(d).

'(6) The ratio in which Continental and Ocean should contribute to any future judgment in favor of Hamon or any of the Sentmans in the above cited actions.

'(7) Such other and further relief as the Court shall deem proper.'

Ocean's answer denied that allegation in the complaint which read----

'9. At the time of the accident Leonard Richards, Jr. and Richards, Inc. and automobile liability insurance policies with Ocean which cover the claims, set forth in the above actions against Executrix and Richards, Inc., and which require Ocean to defend on behalf of Executrix and Richards, Inc. against said claims.'

Its answer, however, otherwise expressly or impliedly admitted the other and remaining allegations of the complaint.

Continental filed requests ⁶ under Rule 36, Del.C.Ann. directed to Ocean, requesting it to admit that it had issued Policy No. AB 51-02-4187 to Leonard Richards on August 16, 1958, covering a 1953 Chevrolet Bel-Air Convertible Coupe, Serial No. BO 17762, 2 Dr. Sedan, although this automobile was owned by Leonard Richards, Inc. The requests asked Ocean to admit this policy was in full force and effect on July 26, 1959--the date of the collision. Ocean filed no answer or response to these requests for admission.

The Rules of Civil Procedure of this Court (Rule 36) provide, among other things, that----

'Each of the matters of which an admission is requested shall be deemed admitted unless * * * the party to whom the request is directed serves upon the party requesting the admission, either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters, or (2) written objections * * *.'

Ocean did neither, so the court, for purposes of the motion, considers (1) that the policies were issued; and (2) they were in effect on the date of the collision, Lowden v. McAndrews, D.C., 2 F.R.D. 36 (1941) and United States v. Jefferson Trust & Savings Bank, 31 F.R.D. 137 (1962).

Continental submitted a certified photostat copy of an application for a title to the 1951 Chevrolet 4 Dr. Sedan, which was signed June 30, 1959, showing title was taken in the name of Leonard Richards, Inc.

Ocean, however, as part of its discovery, submitted an affidavit made by an officer of Lawson Cooper Company, Ocean's Agent--the pertinent portions of which are:

'* * * that he is the President of Lawson Cooper, Inc., the agent through which Ocean Accident and Guarantee Corporation, Ltd. policy No. AB 51-02-41-87 referred to in the plaintiff's brief in support of its motion for summary judgment, was written; that on some date between July 6, 1959 and July 26, 1959, the date of Leonard Richards, Jr.'s death, Lawson Cooper, Inc. received from said Leonard Richards, Jr. a request for cancellation of said policy, a copy of which request is attached.'

The so-called request is in the following form:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

After oral argument counsel for Ocean, in a letter addressed to the court, under date of April 14, 1965, stated:

'* * * due to the confusion surrounding Mr. Richards' accident on July 26, 1959 and his subsequent death, formal cancellation was not, in fact, carried out. The policy was renewed on August 16, 1959, to cover another automobile owned by Mrs. Richards.'

It, therefore, appears that on the date of the collision, the policy of insurance had not been cancelled, but was still in effect on the Chevrolet.

Counsel for Continental and the Hamon and Sentman defendants strenuously argued against the court's giving any consideration to this affidavit and its attached 'request for cancellation', contending that the so-called Dead Man's Statute, 10 Del.C. § 4302, is sufficient reason for the court to reject the affidavit.

In my opinion, the cited statute is not a reason for the court to reject the papers since Mr. Cooper, who made the affidavit, acting for Lawson-Cooper Company, was not an agent of any party to the suit. American Securit Glass Corp. v. Shatterproof Glass Corp., 154 F.Supp. 890, 893 (D.C.Del.1957) interpreting 10 Del.C. § 4302. I do not, however, given consideration to the affidavit and its attached 'request' for cancellation, because (1) it is most ambiguous; (2) it does not represent a completed transaction; and (3)--and most important--it is to say the most for it, 'hearsay'. I can find no rule in the law of evidence that permits my consideration of the contents of the affidavit and/or the attached 'request' for cancellation. Ocean has not identified the handwriting on the 'request' as that of Leonard Richards and would have the court give effect to a statement allegedly made by Mr. Richards, as against Continental and the defendants Hamon and Sentmans, without giving them the right to cross-examine Mr. Richards. I give no effect to the affidavit for any of the purposes of the pending motion.

Depositions have been taken and the plaintiff had filed a motion for summary judgment, urging there is no genuine issue of fact ⁷, and submitting the case on the record and the law. Since Ocean contends there is an issue of fact, the court is required, Jones v. Julian, Del., 195 A.2d 388, 389 (Sup.Ct.1963), to examine the record to determine if there is a genuine issue of a material fact. A review of the record discloses the discovery process utilized by the parties.

The deposition of W. H. Homan of Swedesboro, New Jersey shows that he is the Chevrolet dealer in that town; that about July 8, 1959 he brought the Chevolet Sedan titled in Richards, Inc. but insured under Mr. Richard's personal policy, to the Homan place of business in a disabled condition. Mr. Homan appeared to be fully familiar with the car and its title, and he identified the car as one belonging to Richards, Inc. It further appears from the Homan deposition that Mr. Richards had come to the Homan Garage with the disabled Chevrolet and that the car was so badly damaged it had only salvage value and it was not worth repairing. Mr. Homan paid Mr. Richards $25 for the damaged car.

The deposition of one William B. Moore, of the Rental Company, was also taken. He testified that the Rental Company had thereafter, on 3 various dates--a week apart--leased motor vehicles to Leonard Richards, Inc.--the last lease having been made July 24, 1959.

This lease identified the rental car and showed that it covered the Volkswagen panel truck which was demolished in the collision between Mr. Richards, Jr. and the Hamon car on July 26, 1959, and in which Mr. Richards was killed.

An examination of the papers before the court shows no genuine issue of fact; the only questions presented are legal in nature. I am further supported in this ruling by reference to Ocean's brief, supra, p. 747.

Briefs have been filed by Ocean's counsel a...