Hawkeye Cas. Co. v. Stoker, No. 32948

CourtSupreme Court of Nebraska
Writing for the CourtHeard before SIMMONS; YEAGER
Citation154 Neb. 466,48 N.W.2d 623
Decision Date22 June 1951
Docket NumberNo. 32948
PartiesHAWKEYE CAS. CO. v. STOKER et al.

Page 623

48 N.W.2d 623
154 Neb. 466
HAWKEYE CAS. CO.
v.
STOKER et al.
No. 32948.
Supreme Court of Nebraska.
June 22, 1951.

Page 625

Syllabus by the Court.

1. Under the Uniform Declaratory Judgments Act an issue of fact properly triable to a jury in an action at law may properly be submitted for determination by a jury in a declaratory judgment action.

2. Under the laws of Iowa the registration certificate of an automobile is prima facie evidence of ownership of the automobile. It may be overcome by other evidence.

3. Under the laws of Iowa where an automobile is registered in the name of one person and an issuable claim is made that the true ownership is in another the question of ownership is one of fact determinable by a jury.

4. If an instruction is reasonably sufficient and not incorrect as to law or fact a party may not be heard to complain of its insufficiency or inadequacy in the absence of a request for a more specific instruction.

5. Before an insurer may make a defense of misrepresentation or breach of condition or warranty it must have seasonably tendered back the unearned premium and kept such tender good.

6. An insurer has the right under a reservation of rights agreement to defend an insured without waiver of right or estoppel to defend against liability under a policy of insurance.

7. Where an insurer disclaims liability under an insurance[154 Neb. 467] policy either on the ground that the policy is void or that the policy does not furnish coverage it may not of right exact of the insured a reservation of rights agreement and thus become entitled to defend an action without waiver of or estoppel to assert nonliability under the policy.

8. An insurer does not have the right without consent of the insured to retain control of the defense of an action indemnifiable under the apparent terms of an insurance policy and at the same time reserve the right to disclaim liability on the policy.

9. Where an insurer denies liability for indemnity under an insurance policy on the ground that the policy is void or that the insured has breached a representation, warranty, or condition the insured has the right to treat the denial as a breach of the contract by the insurer and to secure attorneys of his own choosing and on his own behalf defend an action.

10. Where an insurer accepts the defense of an action under a reservation of rights agreement with the insured and thereafter but before disposition of the action which it has agreed to defend institutes action in which it unequivocally declares nonliability and invalidity of the policy and prays for judgment accordingly, the insured is freed from any obligation either under the policy or the reservation of rights agreement to allow the insurer to continue with the defense of the action.

11. Under such circumstances the insurer waives its right to defend which leaves the insured free to defend the action in actual trial to judgment or in good faith make such a settlement as ordinary and reasonable prudence and caution might dictate as advisable.

12. Before a litigant may claim the right to have an attorney's fee assessed in a case statutory authority or a uniform course of procedure must be found therefor.

13. Section 44-359, R.S.1943, permits of the allowance of attorney's fees to parties designated who bring actions at law against the classes of insurers designated therein who are doing business in this state.

14. A party not entitled at the time to maintain an action at law under section 44-359, R.S.1943, is not entitled to have an attorney's fee assessed under any of the terms of that statute.

[154 Neb. 468] Gross, Welch, Vinardi & Kauffman and H. B. White, all of Omaha, for appellant.

Richard A. O'Connor, McCormack & McCormack, all of Omaha, Cook & Cook, Fremont, for appellee.

Page 626

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action instituted on August 10, 1949, by Hawkeye Casualty Company, a corporation, under the Uniform Declaratory Judgments Act of the State of Nebraska against Joe H. Stoker, Thelma I. Stoker, Leonard Bertelsen, Louis Bertelsen, Quentin Peterson, Helen Foreman, Delores Wahlstrom, Lila May Woodin, and Steven Hill, defendants, to have determined the liability of the plaintiff, if any, under a policy of liability insurance issued to the defendant Thelma I. Stoker. The Stokers are husband and wife. Plaintiff, in an original petition based on specific grounds, declared that there was no liability and prayed for an adjudication accordingly. By amendment to the petition the plaintiff alleged additional specific grounds for nonliability under the policy and prayed for adjudication in conformity with the amendment.

The case came to trial and certain issues of fact were submitted for determination to a jury. These issues were decided in favor of the defendants whereupon, among other things which will be considered later herein, the court determined that there was liability under the policy and adjudicated accordingly.

From this and the adjudication on the other questions and an order overruling a motion for new trial duly and timely filed the plaintiff has appealed.

The factual situation out of which the action flows is substantially the following: The plaintiff is an Iowa corporation engaged in the business of issuing automobile liability insurance policies. The defendants Stoker are residents of Council Bluffs, Iowa. On August 21, [154 Neb. 469] 1947, the plaintiff issued to Thelma I. Stoker a standard automobile liability insurance policy covering a 1936 Plymouth automobile. The policy contained what is commonly called an omnibus clause, that is a clause which extended the coverage of the policy to anyone using the automobile with the consent of the insured. This clause of course gave coverage to Joe H. Stoker when he was using the automobile with the consent of Thelma I. Stoker.

On or about August 24, 1947, the defendant Joe H. Stoker was operating the insured automobile in Douglas County, Nebraska, wherein with the automobile he had an accident. He promptly made report of the accident to the plaintiff.

The defendants, Bertelsen, the defendant Peterson, and the defendant Helen Foreman, as a consequence of the accident, brought action against Joe H. Stoker for damages. Leonard Bertelsen was joined as a defendant in the action instituted by Helen Foreman but that is of no importance here. The other named defendants apparently asserted claims for damages but also apparently did not institute actions. After commencement of the actions the plaintiff assumed their defense as was its duty if there was liability under the terms of the policy, and retained the law firm of Gross and Welch to represent the defendants Stoker in the actions.

On January 28, 1949, the plaintiff secured from Joe H. Stoker a reservation of rights agreement the effect of which was to permit the plaintiff to investigate and defend the actions against Joe H. Stoker without waiver of right to assert nonliability under the policy. Later and on May 23, 1949, the plaintiff secured a like reservation of rights from both Joe H. Stoker and Thelma I. Stoker.

The alleged ground of nonliability contained in the original petition is that by the terms of the policy there is no liability unless the insurance is written and carried in the name of the sole owner of the automobile. The [154 Neb. 470] plaintiff says, and on this ground it seeks avoidance of liability and to avoid the policy, that Thelma I. Stoker was not the sole owner of the automobile but that on the contrary Joe H. Stoker was the owner.

The alleged ground of nonliability contained in the amendment, which amendment was filed by leave of court January 19, 1950, is that the defendants Stoker violated and breached the cooperation clause of the policy, the important part of which insofar

Page 627

as this case is concerned is the following: 'The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident.'

The substantial contention in this connection is that defendants Stoker made settlement and allowed judgments to be entered as follows: In favor of Quentin Peterson for $8,000, in favor of Louis Bertelsen for $5,000, and in favor of Leonard Bertelsen for $3,000, without the consent of plaintiff.

These judgments were entered on October 4, 1949. In the case of Quentin Peterson v. Joe H. Stoker, the entry representing the settlement and judgment is as follows: 'Jury waived, trial to the court, judgment for plaintiff in the sum of $8,000 and costs. Complete record waived.' The other two are the same except as to amounts of judgment. There was in the true sense no trial. No witness appears to have been sworn and no evidence was received. It clearly appears that the judgments were entered pursuant to agreement among the attorneys representing the parties and with consent of Joe H. Stoker.

The defendants Bertelsen, the defendant Foreman, and the defendant Peterson were made parties to the action because of the fact that they had instituted action against Joe H. Stoker and to them the plaintiff would be required to respond in case the defendant Joe H. Stoker was liable in damages, of course within the limits [154 Neb. 471] of the policy, which limits it may be well to state were for bodily injuries, $5,000 for each person with a maximum of $10,000 for each accident and a maximum of $5,000 for property damage for each accident.

The defendants have contested the action on various grounds. The first to be noted here is that the plaintiff was without right at the time this declaratory judgment action was instituted to maintain the action. This question was not presented to the district court. It therefore will be passed without further...

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44 practice notes
  • American Simmental Ass'n v. Coregis Ins. Co., No. 4:98CV3327.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • July 25, 2000
    ...forum must be applied; holding § 44-359 to be procedural, thus applying Nebraska law to attorney fee issue); Hawkeye Cas. Co. v. Stoker, 154 Neb. 466, 485, 48 N.W.2d 623, 634 (1951) (Neb.Rev.Stat. § 44-359 is Page 1087 Because the ASA's lawsuit against St. Paul is "an action upon [the] ... ......
  • Apex Mut. Ins. Co. v. Christner, Gen. No. 50851
    • United States
    • United States Appellate Court of Illinois
    • September 18, 1968
    ...of rights, since the insured could have rejected the insurer's offer of counsel if he had chosen to do so. Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623. Also see Schneider v. [99 Ill.App.2d 163] Autoist Mutual Insurance Co., 346 Ill. 137, 178 N.E. 466. Whether, in reserving r......
  • Merchants Indem. Corp. v. Eggleston, No. A--71
    • United States
    • United States State Supreme Court (New Jersey)
    • March 19, 1962
    ...judgment will preserve a right to disclaim. The little we have found points the other way. Thus, in Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623 (Sup.Ct.1951), it was held that the institution of such an action constituted a breach of a non-waiver agreement, entitling the ins......
  • D & S Realty Inc. v. Markel Ins. Co., No. S-09-642.
    • United States
    • Supreme Court of Nebraska
    • September 10, 2010
    ...437 N.W.2d 778 (1989). 67Id. 68See, Dairyland Ins. Co. v. Kammerer, 213 Neb. 108, 327 N.W.2d 618 (1982); Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623 (1951). 69Id. 70Zweygardt, supra note 34. 71Hunt v. State Ins. Co., 66 Neb. 121, 92 N.W. 921 (1902) (on rehearing); Kuhlman, s......
  • Request a trial to view additional results
44 cases
  • American Simmental Ass'n v. Coregis Ins. Co., No. 4:98CV3327.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • July 25, 2000
    ...forum must be applied; holding § 44-359 to be procedural, thus applying Nebraska law to attorney fee issue); Hawkeye Cas. Co. v. Stoker, 154 Neb. 466, 485, 48 N.W.2d 623, 634 (1951) (Neb.Rev.Stat. § 44-359 is Page 1087 Because the ASA's lawsuit against St. Paul is "an action upon [the] ... ......
  • Apex Mut. Ins. Co. v. Christner, Gen. No. 50851
    • United States
    • United States Appellate Court of Illinois
    • September 18, 1968
    ...of rights, since the insured could have rejected the insurer's offer of counsel if he had chosen to do so. Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623. Also see Schneider v. [99 Ill.App.2d 163] Autoist Mutual Insurance Co., 346 Ill. 137, 178 N.E. 466. Whether, in reserving r......
  • Merchants Indem. Corp. v. Eggleston, No. A--71
    • United States
    • United States State Supreme Court (New Jersey)
    • March 19, 1962
    ...judgment will preserve a right to disclaim. The little we have found points the other way. Thus, in Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623 (Sup.Ct.1951), it was held that the institution of such an action constituted a breach of a non-waiver agreement, entitling the ins......
  • D & S Realty Inc. v. Markel Ins. Co., No. S-09-642.
    • United States
    • Supreme Court of Nebraska
    • September 10, 2010
    ...437 N.W.2d 778 (1989). 67Id. 68See, Dairyland Ins. Co. v. Kammerer, 213 Neb. 108, 327 N.W.2d 618 (1982); Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623 (1951). 69Id. 70Zweygardt, supra note 34. 71Hunt v. State Ins. Co., 66 Neb. 121, 92 N.W. 921 (1902) (on rehearing); Kuhlman, s......
  • Request a trial to view additional results

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