Criterion Ins. Co. v. Grange Mut. Cas. Co.
| Citation | 210 Va. 446,171 S.E.2d 669 |
| Court | Virginia Supreme Court |
| Decision Date | 19 January 1970 |
| Parties | CRITERION INSURANCE COMPANY v. GRANGE MUTUAL CASUALTY COMPANY et al. |
Robert M. Furniss, Jr., Norfolk, (Furniss & Davis, Norfolk, on brief), for plaintiff in error.
James L. Miller, Norfolk (Williams, Worrell, Kelly & Worthington, Norfolk, on brief), for defendants in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
I'ANSON, Justice.
Criterion Insurance Company (Criterion) filed in the court below a motion for a declaratory judgment against Grange Mutual Casualty Company (Grange), Fred W. McDaniel, Melvin L. Langfitt, Clyde Salmons, William H. Buck, Richard J. Attebury, Robert S. Campbell, Thomas C. Burleson and Henry O. Mangrum to determine the liability of the two insurance companies for damages for injuries sustained by Salmons, Buck, Attebury, Campbell, Burleson and Mangrum in an automobile accident.
The question presented on this appeal is whether Criterion, the uninsured motorist carrier, may maintain a declaratory judgment proceeding against Grange, the tort feasor's liability carrier, to declare the obligations of Grange under its contract of insurance.
Criterion alleged in its motion that defendant Grange issued an automobile liability policy on a 1959 Chevrolet owned by Fred W. McDaniel; that on January 5, 1964, the insured automobile, while it was being driven by Melvin L. Langfitt with McDaniel's permission, collided with an automobile owned by Henry O. Mangrum and operated by Thomas C. Burleson; that as a result of the collision, actions for damages were filed against Langfitt and McDaniel by all the passengers in the Mangrum car, its driver and its owner; that Grange had wrongfully denied coverage to Langfitt and McDaniel; that at the time of the accident Criterion had in effect a policy of insurance with an uninsured motorist endorsement on the automobile owned by Mangrum; that if Grange was not liable under its policy, Langfitt and McDaniel were uninsured motorists and Criterion would be obligated to defend Langfitt and McDaniel and to pay the damages for which they might be liable; and that a genuine dispute existed as to which insurer is obligated under the terms of their respective policies.
In its grounds of defense Grange admitted that it had in effect a liability policy on the McDaniel automobile, but it disclaimed liability under the terms of its policy because at the time of the accident the insured automobile was being operated without McDaniel's permission, and Langfitt was not a member of McDaniel's family.
Soon after Criterion filed its motion it requested the court to permit it to amend its motion in order that it might seek damages from Grange for amounts it had expended in settlement of certain claims arising out of the accident. This motion was never passed on by the trial court. However, on January 3, 1968, the court permitted Criterion to amend its original motion to allege that Burleson had obtained a judgment against Langfitt in the amount of $1500, which judgment had not been paid.
After our decision in General Accident Fire & Life Assurance Corp. v. Aetna, Casualty & Surety Co., 208 Va. 467, 158 S.E.2d 750 (January 15, 1968), the trial court was of opinion that it controlled the present case. Hence the court, in a letter opinion, dismissed the proceedings on the grounds that there was no actual controversy or issue between Criterion and Grange as the liability 'is contractual and arises under the Uninsured Motorist law after the liability of the uninsured motorist has been established,' and the Supreme Court of Appeals having held that the uninsured motorist carrier has no recourse under the law against the liability carrier, the opinion of the court would be merely advisory. We do not agree that our decision in General Accident is controlling here.
In General Accident the action was brought by the insurer of the injured motorist against the insurer of the tort feasor to recover the amount it paid the injured motorist pursuant to an uninsured motorist endorsement. We held that Code § 38.1--381(f), as amended, 1 does not authorize a subrogation action by the uninsured motorist's liability insurer against the insurer of the person causing injury to recover payments made under the uninsured motorist endorsement. 208 Va. at 474, 475, 158 S.E.2d at 755.
General Accident differs from the present case in that Criterion's motion for declaratory...
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