Farm Bureau Mut. Ins. Co. v. Hammer

• Decision Date: 09 February 1949
• Docket Number: No. 231.,231.
• Citation: 83 F. Supp. 383
• Court: U.S. District Court — Western District of Virginia
• Parties: FARM BUREAU MUT. INS. CO. v. HAMMER et al.

83 F. Supp. 383

FARM BUREAU MUT. INS. CO. v. HAMMER et al.

No. 231.

United States District Court W. D. Virginia, Harrisonburg Division.

February 9, 1949.

Wayt B. Timberlake, Jr., of Staunton, Va., for plaintiff.

Glenn W. Ruebush, of Harrisonburg, Va., and H. G. Muntzing, of Moorefield, W. Va., for defendants.

PAUL, Chief Judge.

This is an action for a declaratory judgment in which the plaintiff prays for an adjudication that it is not obligated to the payment of certain judgments which the defendants have obtained against Marvin Luther Wagner for personal injuries and death caused by a motor truck owned and operated by Wagner and upon which the plaintiff carried liability insurance, and prays that defendants be restrained from instituting suits against plaintiff for the collection of such judgments.

The factual background of the case as it appears from the pleadings and admissions of the parties is substantially as follows:

The plaintiff, which is engaged in the business of writing automobile liability insurance, on October 23, 1946, issued a policy covering a Chevrolet truck owned by Marvin Luther Wagner. Thereafter, on April 19, 1947, while the policy was in force, Wagner while operating the truck drove it into an automobile owned and operated by one Clarence Berlin Beverage and in which four other persons were passengers, these being Dennis Roscoe Beverage, James Edward Simmons, Dorothy Mae Helmick and Hilda Louise Gum, the latter an infant fifteen years of age. As a result of this collision Dennis Roscoe Beverage, James Edward Simmons and Dorothy Mae Helmick were killed and Clarence Beverage and Hilda Louise Gum were seriously injured.

Thereafter suits for damages were instituted against Wagner by the personal representatives of the persons killed and by the two injured parties in the Circuit Court of Highland County, Virginia, in which county the collision took place. Under the terms of the policy the insurance company (plaintiff in the instant case) was obligated to defend in the name of the insured any suit brought against him, and accordingly counsel employed by the company entered his appearance in the state court as counsel for Wagner in the suits against him and entered pleas of the general issue. Before any further action in these suits was taken Wagner was indicted and tried on a charge of having wilfully and intentionally driven his truck into the automobile operated by Clarence Beverage and was convicted of murder in the second degree and sentenced to ten years in prison for having thereby caused the death of one of the victims (Dennis Beverage).

Following the conviction of Wagner counsel for the insurance company asked and was granted leave by the court to withdraw as counsel of record for Wagner in the actions for damages against him.

After withdrawal of the insurance company from defense of the damage suits against Wagner, those actions came on for trial in the state court. It appears from the records in them that Wagner offered no evidence in defense. In any event the jury in each case returned verdicts in substantial amounts against Wagner, on which judgments were entered. Executions against Wagner issued on these judgments were unsatisfied and thereupon the judgment creditors (defendants in the instant case) called upon the insurance company for payment of the judgments to the amount of its policy. This right, under these conditions, to proceed directly against the insurer is provided for by statute, Va. Code Sect. 4326a, and settled by the decisions of the Virginia courts. See Indemnity Ins. Co. v. Davis' Adm'r, 150 Va. 778, 143 S.E. 328. It is also provided for by the terms of the policy here involved.

The insurance company then instituted the present action in this court which, as previously noted, prays for a declaratory judgment to the effect that it is not obligated to payment of the judgments against Wagner and seeks to enjoin the defendants from instituting actions against the company to collect any part of the judgments. While the insurer could, if it chose, wait until suit was instituted against it and then offer any defense it might have, there is no doubt that, in order to avoid a multiplicity of suits, this is an appropriate situation to entertain an action for a declaratory judgment; and the defendants do not contest the propriety of this action.

The basis upon which the plaintiff seeks to be relieved of liability as an insurer is the contention that the injuries and deaths for which the judgments were recovered were not the results of an "accident" against which alone the policy insured, but were the results of a wilful, deliberate and intentional act on the part of Wagner in driving his truck into the automobile, which happening, it asserts, was not covered by the policy of insurance.

The defendants have filed their joint answer, the effect of which is to set up two primary defenses, in substance as follows:

1. They aver that the collision between the truck and the automobile was due to negligence on the part of Wagner and not to his intentional act; that the judgments against Wagner were based solely on pleadings which alleged negligence; that the evidence adduced at the trials was solely evidence of negligence and that the verdicts and judgments were based solely on negligence; and that the plaintiff is now precluded from asserting that the collision was intentionally caused by Wagner.

2. That irrespective of any intent on the part of Wagner to cause the collision, the deaths and injuries suffered by the occupants of the automobile were caused by an "accident" arising out of the ownership and use of the truck while it was insured by the plaintiff.

Briefly the defendants' answer contends (1) That the judgments having been obtained as the result of trials based solely on the theory of negligence the plaintiff cannot now be heard to assert that the collision was intentional. (2) That regardless of whether the collision was intentional the occupants of the automobile were the victims of an "accident" against which the plaintiff had insured.

Based on these defenses the defendants have moved for summary judgment in their favor, supporting their motion with copies of the records in their suits against Wagner in the state court, duly certified by the clerk of that court. The purpose of these is not only to show the existence and amount of the judgments but to show that the cases were tried and the judgments obtained solely on the issue of negligence. The motion for summary judgment is rested on Rule 56(b) of the Rules of Civil Procedure, 28 U.S.C.A., as follows: "A party against whom a claim * * * is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof."

The plaintiff objects to the introduction or consideration of the state court records on the ground that the quoted rule limits the supporting material to affidavits and that court records are not affidavits and not such matter as is contemplated by the rule. The objection is, I am convinced, not well taken. The records offered are certified in the customary form by the clerk of the court under the seal of the court; and, in addition thereto are verified by the clerk under oath before a notary public. An affidavit is a statement reduced to writing and the truth of which is sworn to before someone who is authorized to administer an oath. What we have here is the statement made by the clerk of the court and sworn to setting forth the fact that certain papers are true copies of records in his court. He does not purport to swear to the truth of the facts set out in the records or to the facts surrounding the collision. His statement is only as to what the court records are. The manner in which this fact is proffered would seem to come within even the most technical definition of what constitutes an affidavit. It would also seem logical that the matter shown by these records be considered on the present motion. The fact that the judgments were obtained as a result of the trial based on the alleged negligence of Wagner is offered as a defense to the present action. The plaintiff has not offered to, and probably cannot, dispute the fact. As a matter of defense there is no reason why its consideration should be deferred until a later stage of the case. For example, if the court were now to refuse to consider these records on this motion for summary judgment, the defendants would offer them in evidence at a trial and the court would then have to determine the same question now before it, namely, whether they were admissible and what their effect is as a matter of defense to the action. So long as the existence of the fact is conceded, the question of whether that fact does or does not constitute a valid defense can just as well be determined now as later.

I. This first matter of defense is based on the principle, variously phrased by the courts but well settled, to the effect that where an indemnitor has notice of and opportunity to defend an action against his indemnitee, he is bound by material facts established against the indemnitee, whether he appeared in defense of the action or not. See Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 330, 16 S.Ct. 564, 40 L.Ed. 712, citing Littleton v. Richardson, 34 N.H. 179, 66 Am.Dec. 759, 760, and City of Boston v. Worthington, 10 Gray, Mass. 496, 71 Am.Dec. 678, 679. See also Robbins v. City of Chicago, 4 Wall. 657, 672, 18 L.Ed. 427; Drennan v. Bunn, 124 Ill. 175, 16 N.E. 100, 7 Am.St.Rep. 354; Guaranty Title & Trust Corp. v. Virginia-Carolina Tie & Wood Co., 152 Va. 698, 703, 148 S.E. 815.

The above stated principle has been recognized as applicable in numerous cases involving insurance. B. Roth Tool Co. v. New Amsterdam Casualty Co., 8 Cir., 161 F. 709; International, etc., Co. v. Steil, 8 Cir., 30 F.2d 654; Ætna, etc., Co. v....