Globe Indemnity Company v. Teixeira

• Decision Date: 28 June 1963
• Docket Number: Civ. No. 2052.
• Citation: 230 F. Supp. 444
• Parties: GLOBE INDEMNITY COMPANY, Plaintiff, v. Antone TEIXEIRA et al., Defendants.
• Court: U.S. District Court — District of Hawaii

230 F. Supp. 444

GLOBE INDEMNITY COMPANY, Plaintiff, v. Antone TEIXEIRA et al., Defendants.

Civ. No. 2052.

United States District Court D. Hawaii.

June 28, 1963.

Robertson, Castle & Anthony, Honolulu, Hawaii, for Globe Indemnity Co.

Ambrose J. Rosehill, Honolulu, Hawaii, for Antone Teixeira et al.

Joseph L. Dwight, Jr., Honolulu, Hawaii, for Violet Mae Lopes et al.

Edwin H. Honda, Honolulu, Hawaii, for Dennis Okudara et al.

Louis B. Blissard, Honolulu, Hawaii, for James M. Dunn et al.

William Kim, Honolulu, Hawaii, for Edward and Pauline Featheran.

TAVARES, District Judge.

In its complaint in this action, plaintiff alleges that it is a corporation organized and existing pursuant to the laws of the State of New York and that its principal place of business is in a state other than the State of Hawaii; that the defendants named in representative capacities have such representative capacities and that all defendants are citizens of the State of Hawaii. Plaintiff further alleges that on January 5, 1961, effective for one year, it issued to defendant, Antone Teixeira, a "Family Automobile Combination Policy;" that on or about June 28, 1961, one William J. Silva left his Chevrolet Corvair automobile with defendants, Antone Teixeira and Mabel Jane Teixeira, husband and wife, for their regular use; that on November 3, 1961, without the express or implied permission of the owner, defendant, Glen A. Teixeira, the minor son of defendant, Mabel Jane Teixeira, and the step-son of defendant, Antone Teixeira, drove said Chevrolet Corvair automobile in this District; that defendant, Dennis Okudara, the minor son of defendants, James Okudara and Elsie Okudara, defendant, Violet Mae Lopes, the minor daughter of defendants, John Lopes and Mary B. Lopes, and Jonnie M. Dunn were passengers in the automobile; that defendant, Edward Featheran, or defendant, Pauline Featheran, or both of them, were chasing said automobile in an automobile being driven by one of them and caused defendant, Glen A. Teixeira, to drive the Chevrolet Corvair automobile into a pole, causing injuries to defendants, Glen A. Teixeira, Dennis Okudara and Violet Mae Lopes and injuries resulting in the death of Jonnie M. Dunn; that defendant, James M. Dunn, individually and in his representative capacity, and defendant, Christabel M. Dunn, have filed an action in the Circuit Court of the State of Hawaii against defendants, Mabel Jane Teixeira and Glen A. Teixeira, for damages in the sum of $150,000.00 for "negligently causing the injuries to and death of Jonnie M. Dunn in said accident;" that defendants, Antone Teixeira, Mabel Jane Teixeira and Glen A. Teixeira, have tendered the defense of said action to plaintiff, claiming that said policy requires plaintiff to defend said action and pay all expenses of such defense and "any liability resulting from said accident up to the maximum limits of the policy;" that plaintiff has denied and denies any obligation to any defendant under the policy, has declined and declines to defend said action; and that the other defendants are potential claimants against plaintiff on the policy. Plaintiff seeks a declaratory judgment, pursuant to 28 United States Code, Section 2201, that, because the policy excludes the driving of a non-owned automobile without the permission of the owner, it is not obligated to any defendant in any respect on the policy.

Defendants, Lopes's,¹ and defendants, Dunn's, have filed answers to the complaint in which they admit, and defendants, Teixeira's and Okudara's, have filed answers to the complaint in which they deny, on the ground that they are without knowledge or information sufficient to form a belief as to the truth of the allegation, the allegation that all defendants are citizens of the State of Hawaii. Neither the Teixeira's nor the Okudara's directly deny the allegation that they are citizens of the State of Hawaii. Defaults have been entered on the complaint against the Featheran's.

Defendants, Lopes's, have filed a counterclaim against plaintiff, alleging that the counterclaim arises out of the transaction set forth in the complaint, incorporating, by their admissions in their answer, the allegations of the complaint relating to the insurance policy issued by plaintiff to Antone Teixeira and seeking, upon facts alleged, damages against plaintiff on the policy in the sum of $75,000.00 for injuries to defendant, Violet Mae Lopes, in said accident and for incidental damages resulting therefrom.

Defendants, Dunn's have filed a counterclaim against plaintiff, adopting the allegations of the complaint to the effect that plaintiff is a corporation organized and existing pursuant to the laws of the State of New York, that its principal place of business is in a state other than the State of Hawaii, that the defendants named in representative capacities have such representative capacities and that all defendants are citizens of the State of Hawaii and the allegations of the complaint relating to the insurance policy issued by plaintiff to Antone Teixeira and seeking, upon facts alleged, damages against plaintiff on the policy in the sum of $140,000.00 for injuries to and the death of Jonnie M. Dunn in said accident.

Plaintiff has moved for summary judgment in its favor on the counterclaims on the ground that it "is entitled thereto as a matter of law." Plaintiff has also moved to dismiss the counterclaims on the grounds that they fail to state claims upon which relief can be granted, that this Court does not have jurisdiction over the subject matter thereof and that the insurance policy involved prohibits the joinder of plaintiff in any action against the insured to determine the insured's liability.² Plaintiff has attached to its motions an affidavit to the effect that the policy contains the following provisions:

"No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.

"Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No person or organization shall have any right under this policy to join the company as a party to any action against the insured to determine the insured's liability, nor shall the company be impleaded by the insured or his legal representative. Bankruptcy or insolvency of the insured or of the insured's estate shall not relieve the company of any of its obligations hereunder.",

and that there has been no judgment against the insured or agreement as so provided therein. This affidavit is not contradicted.

There are no allegations in the counterclaims endeavoring to refute plaintiff's contention that the facts alleged in the affidavit mentioned prevent such action against plaintiff in this case.

Defendant's, Lopes's, have filed a cross-claim against defendants, Teixeira's alleging that the cross-claim arises out of the same transaction set forth in the complaint, incorporating, by their admissions in their answer, the allegations of the complaint relating to the insurance policy issued by plaintiff to Antone Teixeira and seeking, upon facts alleged, damages against said defendants in the sum of $75,000.00 for injuries to defendant, Violet Mae Lopes, in said accident and for incidental damages resulting therefrom.

Defendants, Dunn's, have filed a crossclaim against defendants, Glen A. Teixeira, Mabel Jane Teixeira, individually and in her representative capacity, and Edward Featheran, alleging that defendant, James M. Dunn, is the temporary administrator of the estate of Jonnie M. Dunn, deceased, by virtue of his appointment as such by the Circuit Court of the First Circuit, State of Hawaii, and seeking, upon facts alleged, damages against said defendants in the sum of $150,000.00 for injuries to and the death of Jonnie M. Dunn in said accident and incidental damages resulting therefrom.

Plaintiff has moved to dismiss the cross-claims on the grounds that they fail to state claims upon which relief can be granted, that this Court does not have jurisdiction over the subject matter thereof and that the insurance policy involved prohibits the joinder of plaintiff in any action against the insured to determine the insured's liability. Plaintiff has made the affidavit hereinabove mentioned applicable to the motion to dismiss.

Defendants, Teixeira's, have moved to dismiss the cross-claims of defendants, Lopes's and Dunn's, on the grounds that they fail to state claims upon which relief can be granted and that this Court does not have jurisdiction over the subject matter thereof.³

Defendant, Edward Featheran, has not appeared in response to the cross-claim, although he has been served therewith.

There are no allegations in the cross-claims, and it is not contended, that there is diversity of citizenship between the cross-claimants and the cross-defendants.

There being diversity of citizenship between plaintiff and defendants and the amount involved being in excess of $10,000.00, exclusive of interest and costs, this Court has jurisdiction of the action for declaratory relief under 28 United States Code, Section 2201.

Federal Rules of Civil Procedure, Rule 13(a), provides:

"Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, except that such a

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