Criss v. United States Fid.

• Citation: 105 W.Va. 380
• Decision Date: 10 April 1928
• Docket Number: (No. 5988)
• Court: Supreme Court of West Virginia
• Parties: Thelma Criss v. United States Fidelity & Guaranty Company

105 W.Va. 380

Thelma Criss
v.
United States Fidelity & Guaranty
Company

(No. 5988)

Supreme Court of Appeals of West Virginia.

Submitted March 13, 1928.
Decided April 10, 1928.

[105 W.Va. 380]

Automobiles One Cannot Proceed Against Statutory Insurer for Injuries by Insured's Automobile Until Claim is Liquidated (Acts 1923, c. 6, § 82; Code, c. 71, § 2).

Under a liability insurance contract procured in compliance with section 82, chapter 6, Acts 1923, one claiming to have been injured because of the negligent operation of an automobile of the assured, cannot proceed against the insurer alone until such claim, is liquidated.

(Motor Vehicles, 42 C. J. § 173.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

[105 W.Va. 381]

Error to Circuit Court, Harrison County.

Action by Thelma Criss against the United States Fidelity & Guaranty Company, by notice of motion for judgment. Judgment for defendant, and plaintiff brings error.

Affirmed.

J. E. Law, for plaintiff in error.

Steptoe, Maxwell & Johnson and James M. Guiher, for defendant in error.

Hatcher, Judge:

This case involves the right of the plaintiff to proceed directly against the defendant as an insurer, upon an unliquidated claim against defendant's assured. The proceeding in which she would test her demand is a notice of motion for judgment. The notice apprised the defendant that she would move the circuit court for a judgment of $3,000.00 and costs against it because of injuries received by her in a collision between an automobile in which she was riding and an automobile owned by Nick Naimo; that the latter car was being driven in a negligent manner, and that the collision was occasioned solely by such negligence; that the Naimo automobile was operated for compensation; that when Naimo secured a license to so operate his automobile he obtained liability insurance from defendant, and that by reason of that insurance, etc., "a right of action has accrued in favor of the undersigned, you to have and recover of and from you for the injury and damages so sustained."

The insurance was procured in compliance with section 82, of Chapter 6 of the Acts of 1923, which forbids the road commission to issue a permit to a taxi operator until he files a bond, or "liability insurance satisfactory to the commission in such sum as the commission may deem necessary to adequately protect the public." The policy contains the usual assurances of indemnity. It also carries the following "rider", to the...