Continental Casualty Co. v. Giller Concrete Co.
| Decision Date | 12 February 1941 |
| Docket Number | No. 9571.,9571. |
| Citation | 116 F.2d 431 |
| Parties | CONTINENTAL CASUALTY CO. v. GILLER CONCRETE CO., Inc., et al. GILLER CONCRETE CO., Inc., v. CONTINENTAL CASUALTY CO. et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
T. J. Blackwell and W. H. Walker, Jr., both of Miami, Fla., for appellant Continental Casualty Co.
Louis Heiman, A. Judson Hill, and Edward E. Fleming, all of Miami, Fla., for Giller Concrete Co., Inc., et al., appellees.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
On December 6, 1938, Continental Casualty Company issued to Giller Concrete Company, Inc., a policy of automobile liability insurance covering two International Mixer Trucks, and a policy of workmen's compensation insurance. The coverage under the two policies was for a period of twelve months from the date of issue.
In the latter part of March, 1939, George O. Wright, the accredited agent of Continental Casualty Company, called on Charles Giller, secretary of Giller Concrete Company, with reference to the payment of premiums due on the two policies. Mr. Wright was informed that Giller Company wanted to transfer its insurance to the American Mutual Liability Insurance Company. Wright agreed that until such insurance was put in force with another company the two policies issued by his company would remain in force and effect.
On March 28, 1938, Jack Bernard, an employee of Giller Concrete Company, wrote a letter to the American Mutual Liability Insurance Company:
On March 29, 1939, H. E. Hibler, Branch Production Manager of the American Mutual Company, who had received Bernard's letter at the Jacksonville, Florida, office of the company, called Bernard over long distance telephone and inquired whether the previous coverage on the items sought to be insured with American Mutual had been canceled. Mr. Bernard, believing that the coverage had already been canceled, advised Hibler that the two policies had been canceled. On the same day Hibler confirmed the telephone conversation with Bernard by a letter inclosing applications for the polices requested by the Giller Company:
The American Mutual Company did not know the name of the company carrying the two policies of insurance for the Giller Company. Giller Company did not accept the letter from American Mutual as a binder and Bernard did not fill out and return the applications for insurance and did not give American Mutual the name of Giller Company's insurance carrier.
On April 3, 1939, one of the International Mixer Trucks covered by the policy of Continental Casualty Company was involved in a collision with an automobile at Fort Lauderdale, Florida. The automobile was wrecked and the driver, Fredrick S. Colburn, and his wife, Myra Plumb Colburn, were seriously injured. Following the accident Giller Concrete Company promptly notified both the Continental and American companies and requested that proper steps be taken to investigate the facts and circumstances surrounding the accident, and to do whatever was required to be done to protect Giller Company against claims which might be made by the injured persons.
On April 12, 1939, American Mutual wrote to the Giller Company voiding all coverage and denying liability. The Continental Company assigned David C. McDonald, its adjuster and claims representative, to investigate the accident. On June 17, 1939, Mr. and Mrs. Colburn commenced two separate suits in the United States District Court seeking to recover damages for personal injuries and for property damage to the automobile. The summons and complaints were served on the Giller Company which turned them over to McDonald, the Continental Company's adjuster. On July 3, 1939, they were returned to Giller Company by registered mail with letter inclosure in which Continental Casualty Company disclaimed liability under its policy.
Thereafter on August 4, 1939, Giller Concrete Company filed its bill of complaint in the District Court against Continental Casualty Company praying for a declaratory judgment. Continental Company filed its answer denying liability and contending that its policy of automobile liability insurance was rescinded prior to...
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...policies allegedly apply. See Dixey v. Federal Compress & Warehouse Co., 140 F.2d 820 (8th Cir. 1944). Cf., Continental Cas. Co. v. Giller Concrete Co., 116 F.2d 431 (5th Cir. 1940), cert. denied, 313 U.S. 567, 61 S.Ct. 941, 85 L.Ed. 1525 The problem, however, is whether plaintiff can, now,......
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