Great American Ins. Co. v. Harleysville Mut. Cas. Co.
| Decision Date | 04 January 1961 |
| Docket Number | No. 8175.,8175. |
| Citation | 285 F.2d 262 |
| Parties | GREAT AMERICAN INSURANCE COMPANY, Appellant, v. HARLEYSVILLE MUTUAL CASUALTY COMPANY, Cleveland Ovell Early, Jr., Dessie Jenkins Vaughan, William Edward Vaughan, Yvonne Vaughan, Ernest Vaughan, Teressa Mae Parker and Ike Parker, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Francis E. Winslow, Rocky Mount, N. C. (Herman S. Merrell, and Battle, Winslow, Merrell, Scott & Wiley, Rocky Mount, N. C., on brief), for appellant.
David R. Cockman and Franklin T. Dupree, Jr., Raleigh, N. C. (Dupree, Weaver, Horton & Cockman, Raleigh, N. C., on brief), for appellee Harleysville Mutual Casualty Co.
J. Felton Turner, Jr., Jackson, N. C. (J. William Copeland, Murfreesboro, N. C., Buxton Midyette, and Gay, Midyette & Turner, Jackson, N. C., on brief), for appellees Dessie Jenkins Vaughan, William Edward Vaughan, Yvonne Vaughan, Ernest Vaughan, Teressa Mae Parker, and Ike Parker.
Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.
This suit for declaratory judgment was brought by the Great American Insurance Company to secure an adjudication that it has no liability under an automobile liability policy for damages caused by collision on a North Carolina highway in which the automobile described in the policy was involved. The policy had been issued to Robert Louis Grant, the owner of the car. The insurance provided therein was limited to $10,000 for bodily injury to each person and $20,000 for each occurrence and $5,000 for property damage. It contained an omnibus clause which insured any person operating the car with the permission of the named insured. The car was being driven at the time of the accident by Cleveland Ovell Early, Jr. and it was alleged in the complaint that he had stolen the car and did not have the owner's permission to drive it at the time of the collision. This allegation gives rise to the principal if not the only issue of fact in the case.
Early himself held an automobile liability policy issued by the Harleysville Mutual Casualty Company under which the liability was limited to $5,000-$10,000 for bodily injury and $5,000 for property damage. It insured him while operating any automobile other than that described in the policy but it provided that this insurance should be excess insurance if other valid and collectible insurance should be available to the insured.
The other car in the collision belonged to Ernest Vaughan and was occupied by four persons at that time. They suffered personal injuries and the car was also damaged. The injured persons brought suits against Early in divers courts of North Carolina and recovered judgments, which in the aggregate fall within the limits of the Great American policy but exceed the limits of the Harleysville policy. No suit has been entered by Vaughan for property damages but it is alleged in the complaint that he claims reimbursement from Early for the damages in a sum substantially less than $5,000, the property damage limit in each of the insurance policies. The judgments have not been paid but the judgment creditors and Vaughan are party-defendants to the instant suit. Harleysville is also a party-defendant in the case. It defended the suits against Early in the state courts under the provisions of its policy, which obligated it to defend any suit against the insured for damages caused in the use of the car even if the claim should be groundless. The complaint alleges that Great American is exposed to liability to Harleysville for the amount of the judgments up to the limits of its policy plus the property damages due Vaughan and the expense of defending the four suits.
At the trial below Harleysville moved the court to...
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