Goodner v. Occidental Fire & Cas. Co.
| Decision Date | 09 October 1968 |
| Citation | 440 S.W.2d 614,59 Tenn.App. 317 |
| Parties | Mrs. Joyce GOODNER, Mrs. Jerry Broadwater and Billy R. Goodner v. OCCIDENTAL FIRE AND CASUALTY COMPANY. |
| Court | Tennessee Court of Appeals |
Roberts, Weill & Ellis, Chattanooga, for Occidental Fire & Cas. Co., appellant.
Paul W. Sorrick, Jr., Chattanooga, for Mrs. Joyce Goodner, Mrs. Jerry Broadwater and Billy R. Goodner, appellees.
This is a suit on an insurance policy by judgment creditors of the named insured.
Complainants, Mrs. Joyce Goodner, Mrs. Jerry Broadwater, and Billy R. Goodner, recovered judgments against Oscar Morris in the Circuit Court of Hamilton County for injuries and damages sustained by them when the automobile in which they were riding was struck in the rear by the automobile driven by Morris. Morris did not pay the judgments and complainants filed this suit in the chancery court seeking to compel the defendant, Occidental Fire and Casualty Company, as insurer of the defendant, Oscar Morris, to pay the judgments. Occidental, in its answer, contended it was not liable under the policy, as its insured had failed to cooperate in the defense of the circuit court suits. On trial, the Chancellor entered judgments in favor of the complainants, and defendant, Occidental, appealed.
In the instant case, as noted by the Chancellor, 'Occidental had difficulty in getting Morris to be fully cooperative.' After Mr. Morris failed to appear for the trial of the property damage case brought by Billy Goodner in the Court of General Sessions of Hamilton County and failed to appear on September 28th, 1966, at counsel's office for the taking of his discovery deposition as requested, counsel for Occidental informed Mr. Morris of his rights and duties under the policy, and obtained a notice and acknowledgement of non-waiver of rights from Mr. Morris. The non-waiver of rights provided, in part, that:
'* * * any action taken by the said insurance company in investigating, adjusting or attempting to adjust, or defending any claim, or handling or defending any litigation growing out of an accident involving Joyce Goodner, Mrs. Jerry Broadwater, Billy R. Goodner and Frank Mumpower, which occurred on or about March 26, 1965, at McCallie Avenue, Chattanooga, Tennessee, shall not be construed as a waiver of the right of the said insurance company to deny liability at any time under any policy or policies of insurance issued to Oscar W. Morris, nor shall any such action be construed to be a waiver of any breach of the provisions, terms or conditions thereof * * *'
The tort actions brought by Mrs. Joyce Goodner and Mrs. Jerry Broadwater, as well as the suit of Billy Goodner for property damage which had been appealed to the circuit court, were set for trial on December 7, 1966. Mr. Morris was notified of the trial date by certified mail, but did not appear for the trial. Counsel for Occidental was successful in having the case passed for re-assignment.
The tort actions next were set for trial on January 17, 1967, in the Third Division of the Circuit Court of Hamilton County. Counsel notified Mr. Morris of the new trial date by certified mail and asked Mr. Morris to acknowledge receipt of the notice. Hearing nothing from Mr. Morris, counsel wrote him by certified mail on January 3, 1967, and again on January 12, 1967. Both letters were returned marked 'unclaimed', though they were correctly addressed.
Counsel then contacted Mr. Morris personally on January 14, 1967, and emphasized the necessity of Mr. Morris's attendance in circuit court on January 17, 1967. Mr. Morris's attention was called to the non-waiver agreement he had executed on September 29, 1966, and he was informed that Occidental would disclaim liability for any judgments that might be entered against him if he were not present at the trial of the cases.
Mr. Morris attended court on the morning of January 17, 1967. As it turned out, two cases in which counsel for Occidental was attorney of record had been set for trial on the same day in two separate divisions of the circuit court. Counsel elected to try first the case of Witt v. Cooper, which was the case first filed and which had been previously passed due to the illness of the insured, who was approximately ninety years of age. The trial judge notified all witnesses and parties present, including Mr. Morris, that the cases were not being passed, but were being 'held in line' and would begin immediately on conclusion of the Witt case. Counsel for Occidental arranged for Mr. Morris to be 'on call'. On the evening of January 18, 1967, counsel talked with Mr. Morris by telephone and informed him that trial of the cases would begin at 9:00 A.M. the next morning, January 19, 1967. Mr. Morris stated he would be present for the trial, but did not appear.
Counsel for Occidental, before trial began, made efforts to reach Mr. Morris by 'phone at his home and his place of employment, but without success. Counsel then sent a telegram to the Morris residence notifying him that the cases were being tried and that his 'attendance at the trial of (these cases was) mandatory within the terms and provisions of the insurance policy' and advising Mr. Morris that the cases were being defended 'only upon the basis of the reservation of right which (was) heretofore takne from you.'
The trial of the suits continued through January 20, 1967. Oscar Morris never appeared to assist in the defense of the cases, nor did he contact counsel to explain his absence.
Jury verdicts were returned in favor of the three plaintiffs against Mr. Morris. Counsel for Occidental notified Mr. Morris of the judgments and that Occidental was disclaiming liability for payment for lack of his cooperation in defending the suits.
Mr. Morris employed new counsel to file his unsuccessful motions for a new trial.
The policy issued by Occidental included a standard provision which...
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