Hedges v. Rudeloff, Civ. A. No. 2009.

• Decision Date: 09 August 1961
• Docket Number: Civ. A. No. 2009.
• Citation: 196 F. Supp. 475
• Parties: Corky J. W. HEDGES et al. v. Richard E. RUDELOFF, as Administrator of the Estate of James A. Harris, Deceased, et al.
• Court: U.S. District Court — Southern District of Texas

196 F. Supp. 475

Corky J. W. HEDGES et al. v. Richard E. RUDELOFF, as Administrator of the Estate of James A. Harris, Deceased, et al.

Civ. A. No. 2009.

United States District Court S. D. Texas, Corpus Christi Division.

August 9, 1961.

Robert D. Nogueira, Beeville, Tex., for plaintiffs.

Lewright, Dyer & Redford, W. N. Woolsey, Corpus Christi, Tex., for defendant Hartford Acc. & Indem. Co.

GARZA, District Judge.

This cause is before the Court on a petition for removal from the 156th Judicial District Court of Bee County, Texas, filed by Hartford Accident & Indemnity Company, one of the defendants in said suit. Plaintiffs have filed a motion to remand.

The background of this cause of action is as follows:

Hartford Accident & Indemnity Company, hereinafter referred to as "Hartford", an insurance company with its domicile in the State of Connecticut, issued a policy of automobile liability insurance, in December 1958, to one James A. Harris. Thereafter, in February 1959, while said policy of insurance was in force, James A. Harris, while driving an automobile not owned by him and not being the one covered by the policy, was involved in an automobile accident with a car in which the plaintiffs were riding. The said Harris was killed in said accident.

Richard E. Rudeloff, hereinafter referred to as "Rudeloff", qualified as Administrator of the Estate of James A. Harris, Deceased. Subsequent to the appointment of Rudeloff, a suit, being Cause No. 9243, was filed in the 156th Judicial District Court of Bee County, Texas, against him as administrator and against certain other defendants alleged to be the employers and/or owners of the automobile being driven by Harris at the time of the collision in question.

The record reflects that the defendant Hartford immediately took the position that they were not liable under the policy of insurance issued to Harris by them for the reason that Harris was driving the automobile in question without the consent of the owners, and that in accordance with their policy of insurance issued to him, he would be covered when driving an automobile other than the one covered by the policy only if he had permission from the owner to drive the same. Hartford agreed to investigate the accident and to defend Rudeloff after they had obtained from him a non-waiver agreement under which Hartford was still insisting that they were not liable under the policy.

Before the trial of the original suit in the State Court, Hartford filed a suit against Rudeloff in this Court, the same being Civil Action No. 1905, seeking a declaratory judgment to the effect that their policy issued to Harris did not cover him at the time of the accident in question. Said suit is still pending in this Court.

Subsequently the original cause filed in the State Court (Cause No. 9243) was tried before the Court without a jury, and a judgment was entered on March 28, 1960, for $32,409.58 in favor of various plaintiffs in various amounts and against Rudeloff as administrator and the other defendants. No appeal was taken from this judgment and it became final as to Rudeloff.

On March 25, 1961, the present suit was filed by the plaintiffs against Rudeloff as administrator, and Hartford, in which it was alleged that a judgment was obtained in the original State Court cause (No. 9243) in the amount above stated, alleging that the policy of insurance issued by Hartford existed, that no payment had been made on the original judgment, and seeking to have Hartford pay the same up to the limits of its policy which the record reflects was $30,000 for all the plaintiffs.

Hartford timely filed its petition for removal and perfected the same. Plaintiffs then proceeded to file Plaintiffs' First Amended Original Petition in the State Court, in which for...