Green v. Benson

• Decision Date: 19 May 1967
• Docket Number: Civ. A. No. 31485.
• Citation: 271 F. Supp. 90
• Parties: Fred GREEN, Administrator of the Estate of David Scott McKeag, Deceased v. Robert Patrick BENSON and Mr. & Mrs. Robert L. Benson, Defendants, and Allstate Insurance Company, Garnishee.
• Court: U.S. District Court — Eastern District of Pennsylvania

271 F. Supp. 90

Fred GREEN, Administrator of the Estate of David Scott McKeag, Deceased v. Robert Patrick BENSON and Mr. & Mrs. Robert L. Benson, Defendants, and Allstate Insurance Company, Garnishee.

Civ. A. No. 31485.

United States District Court E. D. Pennsylvania.

March 28, 1967.

On Motion for Summary Judgment May 19, 1967.

COPYRIGHT MATERIAL OMITTED

Gordon W. Gerber, Philadelphia, Pa., for plaintiff.

Howard R. Detweiler, Philadelphia, Pa., and Howard Richard, Upper Darby, Pa., for defendants.

James J. McEldrew, Philadelphia, Pa., for Allstate Ins. Co.

MEMORANDUM AND ORDER SUR GARNISHEE'S MOTION TO DISMISS (Document 35)

VAN DUSEN, District Judge.

The parties to this garnishment proceeding agree that the accident upon which the original suit was based occurred in the following manner:

"On Sunday, July 30, 1961, at or about 6:30 P.M., Robert Patrick Benson, the 17 year old son of Robert L. Benson, who resided with his father at 4634 Woodland Avenue, Drexel Hill, Upper Darby Township, Pennsylvania, was operating a 1961 Chevrolet automobile in an easterly direction on Woodland Avenue, Drexel Hill, Upper Darby Township, Pennsylvania, near its intersection with Belfield Avenue, when that automobile collided with a bicycle operated by David Scott McKeag, a 14 year old boy who died as a result of injuries sustained in that accident."

(Document 30, par. 8; Document 33, par. 8)

As a result of this accident claims were filed against two insurance companies, Continental Casualty Company (hereinafter "Continental") and Allstate Insurance Company (hereinafter "Allstate"). Both insurance companies originally disclaimed coverage, but Continental subsequently caused counsel to enter an appearance in the action on its behalf (Document 43, p. 19). Counsel retained by Continental undertook the defense of the action as co-counsel with an attorney retained by defendants, Mr. and Mrs. Robert L. Benson, to represent themselves and their minor son, the operator of the vehicle, who was also a defendant. Allstate did not undertake the defense of the action. When the case was called for trial, counsel informed the trial judge that they had reached a settlement agreement. Court and counsel then retired to chambers to discuss the settlement agreement. Present at this discussion were Gordon W. Gerber, Esq., attorney for the plaintiff, Ronald H. Sherr, Esq., who had been retained by Continental, Howard Richard, Esq., who had been retained to represent Mr. and Mrs. Benson and their minor son (Document 27, p. 1). By the terms of the settlement agreement, judgment was to be entered in favor of the plaintiff and against the defendant, Robert Patrick Benson, in the amount of $5000. Mr. Gerber, counsel for the plaintiff, stated as follows:

"* * * plaintiff agrees for the plaintiff and the plaintiff's family, the parents of the deceased child, that he will not seek to impose any financial obligation upon the individual defendant for the payment of all or any part of the judgment or costs in this case.

"MR. RICHARD: Fine.

"MR. GERBER: And that the plaintiff and the deceased child's parents will limit themselves to any financial recovery to whatever it is they can collect from either the Continental Casualty Insurance Company or the Allstate Insurance Company.

"MR. RICHARD: Correct."

(Document 27, pp. 5-6)

He further stated:

"* * * I would want to make sure that the record shows the agreement of all counsel that the agreed settlement figure of $5000 is a fair and reasonable settlement considering all of the circumstances involved in the case.

"Certainly one of those circumstances is that Your Honor pretried this case and placed a settlement range on the case of which $5000 was the minimum and $10,000 was the maximum, all of these being settlement figures as distinguished from potential jury verdicts, so that there will never be, at least among counsel or court here, anything other than agreement that the settlement figure of $5000 was fair and reasonable and appropriate under all of the circumstances.

"Counsel, Mr. Sherr, you agree to that, do you not?

"MR. SHERR: Yes, sir.

"THE COURT: And Mr. Richard?

"MR. RICHARD: Yes, sir."¹

(Document 27, p. 8)

Plaintiff now concedes that the most he is entitled to recover from Allstate is $2500. (see attached letter of March 14, 1967).

Allstate's contention that this court does not have jurisdiction of the garnishment proceeding is without merit. Under the circumstances of this case, the garnishment proceeding is a proper subject of the ancillary jurisdiction of the Federal Courts. See Hobbs v. Buckeye Union Casualty Company, 212 F.Supp. 349 (W.D.Va.1962). See, also, American Federation of Tobacco Growers v. Allen, 186 F.2d 590 (4th Cir. 1951); 1 Barron and Holtzoff, Federal Practice and Procedure, § 23; F.R.Civ.P. 69.

Assuming, as Allstate contends, that Continental admitted some coverage under its policy by causing its counsel to enter an appearance and defend the action, it does not follow that, by so doing, Continental admitted exclusive coverage. Therefore, cases such as Pendleton v. Pan American Fire and Casualty Company, 317 F.2d 96 (10th Cir. 1963), relied on by Allstate, do not provide authority for dismissing this garnishment proceeding.²

Allstate's contention that plaintiff's agreement to accept $2500. from Continental, and Continental's agreement to pay that amount to plaintiff, constituted a settlement of the $5000. judgment which is Document 28, is not borne out by the record.³ The transcript of the discussion which led to that agreement (Document 27) shows that the parties to it intended to satisfy only Continental's liability to the plaintiff and not any liability which Allstate may have. See Document 27, pp. 5, 8-9, 11-12, and Document 28, p. 2.

Allstate's contention that the settlement agreement shown in Document 28 is beyond the authority of the Administrator is also without merit. 20 P.S. § 772 gives the administrator the authority to commence and prosecute death actions. 20 P.S. § 1151 provides:

"Whenever it is desired to compromise or settle an action in which damages are sought to be recovered on behalf of the estate of a decedent, any court in which such action is pending and which has jurisdiction thereof may, upon oral motion by plaintiff's counsel of record in such action, or upon petition by the personal representative of such decedent, make an order approving such compromise or settlement. Such order may approve an agreement for the payment of counsel fees and other proper expenses incident to such action."

An order of a United States District Court, approving a settlement in a death action pending in such court, is conclusive and binding on the Orphans' Court which has jurisdiction of the decedent's estate. Trigg Estate, 86 Pa.Dist. & Co. R. 76 (O.C.Phila.Co.1953); 20 P.S. § 1152.

The settlement figure of $5000. was within the settlement range recommended by the pre-trial judge. It was agreed by all counsel in the case, including Mr. Richard, the private counsel retained by the Bensons, that that figure was fair and reasonable under all the circumstances of this case. Since Mr. Richard acted diligently to protect the defendant, Robert Patrick Benson, at the pre-trial conference and at the discussion in chambers on February 28, 1966, Allstate was not prejudiced by the fact that it was not represented at that discussion. Allsate has advanced no reason or authority indicating that, on this record, the procedures followed in this case were improper or that the plaintiff is not entitled to proceed against Allstate to recover $2500.⁴

ORDER

And now, March 28, 1967, after consideration of the garnishee's Motion to Dismiss (Document 35), the briefs of counsel, oral argument, and the record, it is ordered that the Motion by garnishee, Allstate Insurance Company, to dismiss (Document 35) is denied.

ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

This case is before the court on the Motion (Document 36) of the plaintiff for a summary judgment against the garnishee, Allstate Insurance Company (hereinafter "Allstate").

The plaintiff's decedent, David Scott McKeag, a 14-year-old boy, died as a result of injuries sustained on July 30, 1961, in a collision between a bicycle which he was operating and a 1961 Chevrolet automobile, which was being operated by the minor defendant, Robert Patrick Benson. The 1961 Chevrolet was a company car¹ which the minor defendant's mother used in her work for her employer. There were two insurance policies which potentially covered the car on the date of the accident, one issued by Continental Casualty Company² (hereinafter "Continental") and the other issued by Allstate. Although Continental disclaimed coverage under its policy, it caused counsel to enter an appearance and defend the suit instituted by the representative of the deceased boy against Robert Patrick Benson and his parents, Mr. and Mrs. Robert L. Benson. This suit resulted in a judgment for the plaintiff in the amount of $5,000., entered upon a settlement agreement negotiated by counsel for the plaintiff, counsel for Continental, and the private counsel retained to represent the Bensons. The settlement agreement provided, inter alia, that judgment for $5,000. was to be entered in favor of the plaintiff and against the defendant Robert Patrick Benson only, that Continental was to pay plaintiff half of the total amount of the judgment, or $2500., and that plaintiff would seek to recover the remaining $2500. from Allstate.³ Allstate disclaims coverage. It did not participate in the defense of the action or in the negotiation of the settlement agreement.

On the date of the accident, Allstate had in effect an automobile liability insurance policy issued to Robert L. Benson. This policy covered any relative of the named insured while driving a nonowned private passenger automobile "not regularly furnished for the use of such relative" (Document 30, Exhibit A, p. 1). Allstate denied...