Farmers Ins. Group v. Worth Ins. Co.

• Decision Date: 16 July 1968
• Docket Number: No. 2,CA-CIV,2
• Citation: Farmers Ins. Group v. Worth Ins. Co., 443 P.2d 431, 8 Ariz.App. 69 (Ariz. App. 1968)
• Parties: FARMERS INSURANCE GROUP, Apellant, v. WORTH INSURANCE COMPANY, a corporation, Appellee. 279.
• Court: Arizona Court of Appeals

Page 431

443 P.2d 431

8 Ariz.App. 69

FARMERS INSURANCE GROUP, Apellant, v. WORTH INSURANCE COMPANY, a corporation, Appellee.

No. 2 CA-CIV 279.

Court of Appeals of Arizona.

July 16, 1968.

Robertson & Fickett, by Burton J. Kinerk, Tucson, Rees, Estes & Browning, by Paul G. Rees, Jr., Tucson, for appellant.

May, Dees & Newell, by Willis R. Dees, Tucson, for appellee.

MOLLOY, Judge.

We consider in this opinion whether one liability insurance company (Farmers Insurance Group), which appealed from a judgment declaring that another liability insurance company had no coverage as to a certain automobile accident, has such an interest in its appeal that it can assign its appeal rights to other parties to the litigation who did not appeal from that judgment.

An action was brought by Worth Insurance Company, asking for a judgment declaring that it had no liability insurance as to a car owned by one Wilson, et ux. According to Worth's complaint, this automobile was involved in an accident with a car operated by one Turner in which the wife of one Jensen was a passenger. Worth further alleged that a lawsuit was subsequently filed by Jensen seeking to recover damages from the Wilsons for the death of Mrs. Jensen and that Turner also claimed to have sustained damage as a result of the collision, allegedly the fault of Wilson. Wilson, et ux., Turner and Jensen were joined as defendants to this action. The relief requested by Worth was a declaration that Wilson did not have any automobile liability insurance from Worth which would cover or protect him as to this accident.

The parties subsequently filed a stipulation that Farmers be joined as a party defendant. There is no indication in this stipulation as to why Farmers was joined. The complaint requested no relief against Farmers. Individual answers were filed by the defendants and by Farmers. Farmers' answer admitted certain allegations of Worth's complaint and denied the remainder. These subsequent pleadings asserted no claim either against or in behalf of Farmers. The case was tried to the court, and judgment was entered favorable to Worth as to all issues.

A 'motion for new trial and to reconsider judgment,' was filed by counsel for defendant Turner, purportedly on behalf of all defendants. This was subsequently denied by minute entry order. Farmers alone appealed to this court from the final declaratory judgment and our record discloses a subsequent substitution of counsel for Farmers in the appellate proceedings--trial counsel for defendnats Jensen and Turner being substituted as counsel of record for Farmers.

A jurisdictional challenge has been presented by Worth via motion to dismiss the appeal. In his affidavit, appended to the motion, counsel for Worth states:

'* * * that Farmers Insurance Group resolved its differences with the other parties to the lawsuit and has no further interest in the outcome of this appeal.'

The affidavit of present counsel for Farmers, in opposition, contains the following:

'* * * that both defendants Jensen and Turner have entered into a contract with Farmers Insurance Group, whereby all claims of both Jensen and Turner against Farmers for uninsured motorist coverage or the liability of Turner were resolved by a Covenant reserving all rights against Worth Insurance owned by Farmers and Wilson and assigning them to jensen and Turner; that the same rights of the prior defendant Wilson have also been assigned to Jensen and Turner, and are being asserted by Farmers in this Appeal.'

In considering whether an appeal should be dismissed for matters dehors the record, we believe it to be appropriate to consider affidavits of counsel such as quoted above. In re Estate of Henry,6 Ariz.App. 183, 430 P.2d 937 (1967); Grant v. Arizona Bank, 5 Ariz.App. 197, 424 P.2d 845 (1967); 5 Am.Jur.2d Appeal and Error § 925; 4 C.J.S. Appeal and Error § 211.

It is a prerequisite to our appellate jurisdiction that the appellant be a 'party aggrieved' by the judgment or order from which the appeal is taken. Christian v. Cotten, 1 Ariz.App. 421, 403 P.2d 825 (1965); Rule 73(a), Rules of Civil Procedure, 16 A.R.S.; 4 C.J.S. Appeal and Error § 183(a). In order to have an appealable interest in a judgment, the judgment must operate, by its own force, on the property rights of such person, or bear directly upon one or more of his personal interest; there must be a substantial grievance--a denial of some personal or property right or the imposition of a substantial burden or obligation. In re Roseman's Estate, 68 Ariz. 198, 203 P.2d 867 (1949). See also Danielson v. Stokes, 214 Cal.App.2d 234, 29 Cal.Rptr. 489 (1963); Beachler v. Ford, 77 Ohio App. 41, 60 N.E.2d 330 (1945); Whitman v. Whitman, Okl., 397 P.2d 664 (1964); Crofwell v. Goldstein, 230 A.2d 854 (R.I.1967); Sheets v. Benevolent & Protective Order of Keglers, 34 Wash.2d 851, 210 P.2d 690 (1949); 4 C.J.S. Appeal and Error § 183(b)(1). Mere disappointment in a particular result does not constitute aggrievement sufficient to support an appeal. State ex rel. Simeon v. Superior Court for King County, 20 Wash.2d 88, 145 P.2d 1017 (1944).

It is also the law that a party's interest in a declaratory judgment action depends upon the existence of a justiciable controversy between that party and one or more of the other parties in the action. Kleck v. Wayland, 53 Ariz. 432, 90 P.2d 179 (1939); Connolly v. Great Basin Insurance Company, 6 Ariz.App. 280, 431 P.2d 921 (1967); 1 Anderson, Actions for Declaratory Judgments (2d ed.) § 9; 22 Am.Jur.2d Declaratory Jdugments § 11. Ordinarily, the factual allegations of the pleadings are determinative of whether this requirement of 'justiciable controversy' has been met. Kleck v. Wayland, supra; Hardware Mutual Casualty Company v. Premo, 25 Conn.Sup. 309, 203 A.2d 433 (1964); Patuxent Oil Co. v. County Commissioners, 212 Md. 543, 129 A.2d 847 (1957); 1 Anderson, Actions for Declaratory Judgments (2d ed.) § 258.

Under these tests, it is our view that, if we ever had a 'party aggrieved' before this court in this appeal, we no longer do. A careful examination of the pleadings in this action gives no hint of what justiciable controversy may exist between Farmers and any other party to this action. To glean any indication of what Farmers' aggrievement with the judgment below may...