Hines v. Royal Indemnity Company
| Decision Date | 05 June 1956 |
| Citation | 141 F. Supp. 234 |
| Parties | Eva HINES, Plaintiff, v. ROYAL INDEMNITY COMPANY, Defendant. |
| Court | U.S. District Court — Western District of Kentucky |
Garrison, Myre & Myre, Paducah, Ky., for plaintiff.
Charles A. Williams, Ernest W. Rivers, Paducah, Ky., for defendant.
This action was filed in the McCracken Circuit Court November 28, 1955 by the plaintiff Eva Hines against Royal Indemnity Company and was removed to this Court by the defendant on the grounds of diversity of citizenship between the parties, the amount in controversy being $10,000, exclusive of interest and costs.
It was alleged in the complaint that on the 21st day of September 1955, in the McCracken Circuit Court, plaintiff had obtained a judgment against Jessie Rudolph and George F. Harvey in the sum of $11,350, subject to a credit of $1,350 arising out of personal injuries suffered by the plaintiff on August 22, 1953. She alleged that under date of March 31, 1953, the defendant Royal Indemnity Company had issued to the defendant Jessie Rudolph its policy of liability indemnity insurance covering a 1951 Oldsmobile Sedan and that the plaintiff was injured as a result of the carelessness and negligence of Jessie Rudolph in the operation of the said Oldsmobile Sedan while the policy was in full force and effect; that under the terms of the policy Royal Indemnity Company was liable to the plaintiff in the maximum amount of the policy, to wit, $10,000.
By its answer, the defendant admitted the issuance of the policy and its being in effect at the time of the alleged accident and as a separate defense alleged (1) that Jessie Rudolph breached the conditions, limitations and agreements of the policy, (2) that the assured Jessie Rudolph did not, nor did any one for him, or in his behalf, notify the defendant of the happening of the accident, as required by the terms of the policy, (3) that the assured did not, nor did any one in his behalf, notify defendant of the claim of the plaintiff and that the defendant had received no notice of the service of a summons upon the assured of any action instituted by the plaintiff against Jessie Rudolph et al.; that by reason of such breaches of the contract, the defendant was in nowise liable under the terms of its policy.
Pursuant to an order of this Court, the plaintiff was permitted to and did file reply to the defendant's answer, in which she alleged that the defendant was estopped from relying upon any alleged failure of Jessie Rudolph to notify defendant of the happening of the accident, of plaintiff's claim against her and of the service of the summons in the action instituted by her against Jessie Rudolph. She alleged that any failure on the part of Rudolph to notify defendant of the accident or Rudolph's failure to cooperate in the defense of the action was waived because of the provisions of the Financial Responsibility Law of Kentucky, Sections 187.290 to 187.620, KRS, particularly Section 6, Subsection (1) of the Act, which plaintiff alleged made the liability of the insurer absolute and barred and estopped the defendant from pleading lack of notice or cooperation.
It was further alleged in the reply that after the suit had been instituted by plaintiff in the McCracken Circuit Court against Jessie Rudolph et al., and in time for a defense to be made, Royal Indemnity Company was notified by the plaintiff of the nature and pendency of the action and failed to interpose a defense and was thereby estopped to plead or rely upon lack of notice or failure to cooperate.
Plaintiff filed on January 3, 1956, a motion for a summary judgment and in support thereof filed the affidavit of Robert L. Myre, plaintiff's attorney in the proceeding in the McCracken Circuit Court and in this Court, in which it was alleged that summons in the suit in the McCracken Circuit Court against Jessie Rudolph and George Harvey was served on Rudolph May 17, 1955 and that on July 15, 1955, Mr. Myre notified the Royal Indemnity Company that suit had been filed, which notice was by letter written to the agents Jordan and Warren, Paducah, Kentucky, through whom the policy of insurance had issued; that during the week of July 22, 1955, the General Adjuster of the Royal Indemnity Company had called Mr. Myre advising him that he had received notice of the lawsuit and that the matter would be referred to an attorney at Paducah; that subsequently another attorney at Paducah contacted Mr. Myre and asked that an extension of time be given in which to file answer, the extension being requested because the Attorney was a candidate for office and was making an active campaign in the Primary Election held on the first Saturday in August 1955; that the case was listed for trial and that no answer being filed, the allegations of the petition were taken pro confesso and the case set for trial September 21, 1955 for an admeasurement of damage; that following the entry of the judgment, an execution issued against Jessie Rudolph, which was subsequently returned "no property found".
February 17, 1956, the defendant filed its response to plaintiff's motion for a summary judgment, supported by affidavits of Charles B. Hines, Casualty Manager of the Royal Indemnity Company at Nashville, Tennessee, William B. Pyle, Claim Manager of Royal at Nashville, Tennessee, and Charles A. Williams, defendant's Counsel in the present action.
It was alleged in the affidavit of Hines and Pyle that Jordan and Warren were not Agents of the Royal Indemnity Company and that the policy was produced by Jordan and Warren under what is known in Kentucky as the "Assigned Risk Plan", which plan is explained in the affidavits as a means of securing insurance for persons otherwise unable to obtain a policy and that such "Assigned Risks" are taken by the various insurance companies operating within an area in the order in which they are determined under the provisions of the plan to be unable to obtain indemnity insurance otherwise. It was further stated in the affidavits that no notice of any kind was given by Rudolph or received by the Company prior to July 20, 1955, when the Company received at its New York office the letter written by plaintiff's Attorneys.
It was stipulated in writing by the parties that the Kentucky State Department of Revenue had not, prior to the date of this accident, required Jessie Rudolph to give or maintain proof of substantial financial responsibility under the provisions of the Financial Responsibility Act, and that this defendant had not certified the policy issued to Jessie Rudolph to the Department of Revenue at Frankfort, as proof of the financial responsibility of Rudolph and the defendant filed its motion for a summary judgment.
The grounds of defendant's motion for a summary were (1) failure of the Insured to give written notice of the accident as soon as practicable (2) failure to forward the summons served on Rudolph alleging that giving notice July 20, 1955 of the accident occurring on August 22, 1953, was not notice as soon as practicable as a matter of law.
The case was tried to the Court without a jury April 27, 1956, at which the evidence was heard and the case has been briefed by Counsel.
The two provisions upon which the defendant relies are paragraphs numbered 1 and 2 of the conditions of the policy relating to notice of an accident and duty of the Assured to forward to the Company demands, notices and summons received by him on the policy. These conditions are as follows:
To continue reading
Request your trial
-
Hines v. Royal Indemnity Company
...prevented the insurer from relying upon the contract provisions. Judgment in that case was given for the appellee. Hines v. Royal Indemnity Co., D.C.W.D.Ky., 141 F.Supp. 234. The District Court judgment was affirmed by this Court on April 3, 1957. Hines v. Royal Indemnity Co., 6 Cir., 244 F......
-
Travelers Insurance Co. v. Ohio Farmers Indem. Co.
...741, 149 S.W. 1011; Travelers Insurance Co. v. Boyd, 312 Ky. 527, 228 S.W.2d 421; Hines v. Royal Indemnity Co., a case from this Court, 141 F.Supp. 234. The Court concludes that, under the facts in this case, timely notice was given by Travelers as soon as it was ascertained that Ohio was t......
-
Ambrosius Industries v. Liberty Mutual Insurance Co.
...as this Court has determined in the cases of Standard Accident Insurance Co. v. Sonne, D.C., 128 F.Supp. 83, and Hines v. Royal Indemnity Co., D.C., 141 F.Supp. 234. (4) This Court, having jurisdiction of this case because of diversity of citizenship of the parties, is controlled by the law......
-
Beam v. State Farm Mutual Automobile Insurance Co.
...has been before this Court in the case of State Auto Mutual Insurance Co. v. Sinclair, D.C., 96 F.Supp. 267, and Hines v. Royal Indemnity Co., D.C., 141 F.Supp. 234, and was also involved in the cases of Strode v. Commercial Casualty Insurance Co., D.C., 102 F.Supp. 240, affirmed 6 Cir., 20......