Fidelity & Cas. Co. of New York v. Ohio Cas. Ins. Co., 42874
| Decision Date | 23 March 1971 |
| Docket Number | No. 42874,42874 |
| Citation | 1971 OK 31,482 P.2d 924 |
| Parties | The FIDELITY & CASUALTY COMPANY OF NEW YORK, a corporation, Plaintiff in Error, v. OHIO CASUALTY INSURANCE COMPANY, a corporation, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
The duty of an insurance company to defend lawsuits against the insured is personal to each insurer, and the carrier is not entitled to divide the duty nor require contribution from another carrier absent a specific contractual right.
Appeal from the District Court of Oklahoma County; Carmon C. Harris, Judge.
Action by Fidelity & Casualty Company to enforce contribution from Ohio Casualty Insurance Company for expenses incurred by Fidelity in successfully defending lawsuit against insured. Trial court held Fidelity was not entitled to contribution. Affirmed.
Rhodes, Hieronymus, Holloway & Wilson, Wm. H. Wilson, Oklahoma City, for plaintiff in error.
Clayton B. Pierce, Oklahoma City, Pierce, Duncan, Couch & Hendrickson, Oklahoma City, of counsel, for defendant in error.
Fidelity & Casualty Company (Fidelity), plaintiff below, appeals from a judgment denying it any recovery against Ohio Casualty Insurance Company (Ohio), defendant below, for attorney fees and expenses paid by Fidelity in defending a lawsuit filed by one J. R. Clark against Allen & Wilson Construction Company and two of its employees.
The present action arose out of the following stipulated facts: Fidelity was the insurer of Allen & Wilson, who was the prime contractor to build a courthouse at Holdenville, Oklahoma. Ohio was the insurer of National Redi-Mix Concrete Company, which sub-contractor to furnish concrete for construction of the courthouse. in the course of such construction National Redi-Mix was pouring concrete from its ready-mix concrete truck into a form of Wheelbarrow which was then wheeled along an elevated runway by two employees of Allen & Wilson and emptied into forms to create a wall of the structure. While engaged in this work the wheelbarrow struck J. R. Clark, knocking him from the runway.
Clark filed suit against Allen & Wilson and the two employees to recover damages for his injuries. Fidelity (insurer of Allen & Wilson) made demand on Ohio (insurer of National Redi-Mix) to defend the action on the theory that the injuries to Clark were inflicted in the course of 'unloading' the truck and consequently the 'loading and unloading' provision of Ohio's policy covered the circumstances of Clark's injuries. Ohio refused to defend the action. Fidelity did defend the action and the jury exonerated the defendants by returning a verdict in their favor.
Fidelity then instituted the present action to recover from Ohio the sum of $7,538.95, representing attorney fees and expenses paid by Fidelity in its successful defense of the damage suit. The trial judge held against Fidelity and in favor of Ohio.
It is our conclusion that of the several propositions advanced by the parties there is only one proposition of law that requires disposition of this appeal adverse to Fidelity. In making such disposition we will assume that Fidelity is correct in its contention that the circumstances and law obligated Ohio to defend the Clark lawsuit.
The Fidelity policy contained the following provision relative to defense of lawsuits:
'II. Defense, Settlement, Supplementary Payments
'With respect to such insurance as is afforded by this policy, the company shall:
(a) Defend any suit against the insured alleging such injury, sickness, disease, or...
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