Edler v. Edler
| Decision Date | 30 January 1969 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 449 P.2d 977,9 Ariz.App. 140 |
| Parties | Nolan Joseph EDLER and State Farm Mutual Automobile Insurance Company, Intervenor, Appellants. v. Marcelle EDLER, aka Marcelle Steger, an incompetent person, by Richard J. Hertzberg, her Guardian ad Litem, Appellee. 434. |
| Court | Arizona Court of Appeals |
Lewis, Roca, Scoville, Beauchamp & Linton, by John P. Frank and D. W. Grainger, Phoenix, for appellants.
Langerman, Begam & Lewis, by Samuel Langerman, Harrison, Strick & Myers, by Mark I. Harrison, Richard J. Hertzberg, Phoenix, for appellee.
This is an appeal by the defendant, Nolan Joseph Edler, and State Farm Mutual Automobile Insurance Company, intervenor, from an order denying motions of State Farm to intervene and motions to set aside default and default judgment as well as motions for new trial.
We are called upon to determine:
1. Whether State Farm Mutual Automobile Insurance Company had a standing to appear in this action either for itself or on behalf of the defendant Nolan Joseph Edler.
2. Whether the default judgment against Nolan Edler was a final judgment under the provisions of Rule 54(b), Rules of Civil Procedure, 16 A.R.S., when said judgment was signed and filed.
The facts necessary for a determination of this matter on appeal are as follows. Defendant, Nolan Joseph Edler, resided with his mother, Marcelle Edler, aka Marcelle Steger, in Phoenix, Arizona. On 19 December 1962 defendant, Nolan Joseph Edler, was driving an automobile insured by State Farm Mutual Automobile Insurance Company. The automobile collided at an intersection with an automobile driven by the defendant Gerald Andrew Sabelko.
Plaintiff, Marcelle Edler, was seriously injured and on 15 May 1964, after the appointment of a guardian ad litem, filed a suit against Sabelko. On 20 July 1964 by sipulation between the plaintiff, by her guardian ad litem, and defendant Sabelko an amended complaint was filed adding Nolan Joseph Edler as a defendant. The amended complaint alleged that both Sabelko and Nolan Joseph Edler were negligent and prayed for judgment against both Sabelko and Nolan Joseph Edler in the amount of $150,000 as and for general damages as well as other amounts.
Defendant, Nolan Joseph Edler, took the complaint to a representative of State Farm Insurance Company and on 29 August 1964 defendant, Nolan Joseph Edler, was notified that 'State Farm Mutual Automobile Insurance respectfully disclaims any coverage.' Defendant, Nolan Joseph Edler, failed to answer or otherwise defend.
On 28 April 1965 plaintiff, through her guardian ad litem, and Sabelko settled their differences and a covenant not to sue was executed by plaintiff and delivered to Sabelko's insurer. The settlement paper was not filed with the trial court and is not before this Court.
On 14 May 1965, after written notice to State Farm, a default judgment was signed and filed against the defendant, Nolan Joseph Edler, in the amount of $150,000. There is no indication that the Court Commissioner in granting the default judgment was aware of the previous settlement between plaintiff and Sabelko and the default judgment does not reflect the fact of settlement or the amount thereof. Neither did the judgment contain the provision that there was 'no just reason for delay' and that the judgment was final as required by Rule 54(b) of the Rules of Civil Procedure, 16 A.R.S.
On 29 November 1965, over 6 months after judgment was signed and entered, the attorneys for State Farm filed a petition to intervene on behalf of State Farm, and on behalf of State Farm and the defendant, Nolan Joseph Edler, moved to set aside the default and default judgment. On 9 December 1965 a stipulation and order dismissing the claim of the plaintiff against the defendant Sabelko was filed with the court and on 17 December 1965 separate motions to set aside default judgment or in the alternative motions for new trial were filed by State Farm Mutual and defendant Nolan Joseph Edler. The plaintiff then moved to strike the pleadings purportedly filed by the defendant, Nolan Joseph Edler, and supported the motion with an affidavit by Nolan Joseph Edler to the effect that after State Farm had notified him they did not intend to answer and after a judgment of $150,000 had been taken against him that:
The trial court denied State Farm Mutual's motion to intervene in their own name and also denied the motions of State Farm Mutual to set aside judgment and for new trial made both in the name of State Farm Mutual as well as in the name of the defendant, Nolan Joseph Edler. From said denials State Farm Mutual in its own name and in the name of Nolan Joseph Edler brings this appeal.
State Farm filed motions in the trial court both in its own name and in the name of Nolan Joseph Edler. The plaintiff moved to strike the pleading 'purportedly filed by defendant Edler' on behalf of State Farm's attorneys. This motion was denied by the trial court. On appeal plaintiff contends that State Farm had no right to represent defendant Nolan Joseph Edler because having once elected to disclaim coverage under the policy, State Farm cannot withdraw that election 'without the consent of the insured'. With this we do not agree.
While it is true that when an insurance company elects not to defend and the assured then retains counsel and defends himself, the assured may then reject the belated offer of the insurance company to re-enter and participate in the defense of the law suit. Witt v. Universal Automobile Ins. Co., 116 S.W.2d 1095 (Tex.Civ.App.) (1938). In the instant case, defendant, Nolan Joseph Edler, made no effort to defend himself after the company denied coverage. He retained no counsel and allowed a $150,000 judgment to be taken against him without protest. Seemingly, his only activity after the company denied coverage was to make an affidavit in support of plaintiff's motion to strike the pleading 'purportedly filed by defendant' Nolan Joseph Edler.
Whatever the liability which may attach for State Farm's failure to defend, and we express no opinion as to their actions, State Farm has a definite interest in the outcome of this suit. As this Court recently stated:
'Even though State Farm breached its contract, it is not wholly without some rights. On the breach of the contract it became Burke's duty to take reasonable steps to mitigate the damages. (citations omitted) * * * Had Burke employed his own counsel who then sought to protect him, we would be faced with a different picture. The plaintiffs are in no position to raise the issue as to whether State Farm could re-enter the case. This right is one which is personal to the Burkes. (...
To continue reading
Request your trial
-
Powers Reinforcing Fabricators, L. L.C. v. Contes
...issue. Instead, our analysis is guided by the general rule that courts disfavor piecemeal litigation, see, e.g. , Edler v. Edler , 9 Ariz. App. 140, 144, 449 P.2d 977 (1969), the purpose of Rule 54(b), and consideration of the "traditional exercise of the court's inherent powers over the ad......
-
McHazlett v. Otis Engineering Corp.
...in entering judgment is to prevent piecemeal appeals. Tarrazes v. Superior Court, 112 Ariz. 434, 543 P.2d 120 (1975); Edler v. Edler, 9 Ariz.App. 140, 449 P.2d 977 (1969). To hold that the unserved defendants in the instant case are "parties" for purposes of the rule would in no way serve t......
-
Koven v. Saberdyne Systems, Inc., 1
...insured or on its own behalf, is well recognized in Arizona. Camacho v. Gardner, 104 Ariz. 555, 456 P.2d 925 (1969); Edler v. Edler, 9 Ariz.App. 140, 449 P.2d 977 (1969); Lawrence v. Burke, 6 Ariz.App. 228, 431 P.2d 302 (1967); East v. Hedges, 125 Ariz. 188, 608 P.2d 327 (1 CA-CIV 4155, fil......
-
Am. Family Ins. Group v. Bergeson
...action nor attempted to mitigate their damages. American Family relies on two cases to support this proposition, Edler v. Edler, 9 Ariz. App. 140, 449 P.2d 977 (1969), and Lawrence v. Burke, 6 Ariz. App. 228, 431 P.2d 302 (1967). In Edler, the court stated an insured could reject an offer o......