International Service Ins. Co. v. Boll, 14582
| Decision Date | 10 June 1965 |
| Docket Number | No. 14582,14582 |
| Citation | 392 S.W.2d 158 |
| Parties | INTERNATIONAL SERVICE INSURANCE COMPANY, Appellant, v. Bastiaan BOLL, Appellee. |
| Court | Texas Court of Appeals |
Milas C. Bradford, Jr., and Daryl Bristow, Houston, and Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
Funderburk, Murray & Ramsey, John Murray, Houston, for appellee.
This is a suit to recover attorney's fees incurred in the defense of two law suits arising out of an automobile collision. The trial court rendered judgment for appellee. The issues presented by this appeal is whether the allegations contained in the petitions filed in the previous suits, whether true or false, stated a cause of action within the coverage of an insurance policy issued by appellant to appellee.
The policy of insurance with which this case is concerned obligated appellant to pay on behalf of the insured all sums for which he might became legally obligated to pay as damages because of property damage or bodily injury sustained by any person 'arising out of the ownership, maintenance or use of the owned automobile or any nonowned automobile, and the Company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; * * *.'
Attached to the policy was an indorsement providing '* * * the insurance afforded by this policy shall not apply with respect to any claim arising from accidents which occur while any automobile is being operated by Roy Hamilton Boll * * *.'
It is undisputed or stipulated that the claim concerning which the prior suits were filed arose out of an accident which occurred while Roy Hamilton Boll was operating the insured automobile. It is also stipulated that Roy Hamilton Boll is the only son of Bastiaan Boll, the insured.
The first suit was initiated by Bastiaan Boll when he filed a suit for property damage to his automobile arising out of a collision between his automobile and one owned by Nolen Plunk. Boll alleged that at the time of the collision his vehicle was being driven by his son, Roy Hamilton Boll. Plunk then filed an answer and cross-action for property damage, asserting that his damage was caused by being struck by an automobile owned by Bastiaan Boll 'and being driven by his son. * * *' A copy of the cross-action was furnished the insurance company who refused to defend because the policy did not cover claims arising out of accidents while the automobile was being operated by Roy Hamilton Boll. Subsequently Plunk filed an action seeking to recover damages for personal injuries which he alleged he suffered in the same collision. In his petition he again alleged that the automobile owned by Bastiaan Boll was being driven by his son, without naming the son.
Roy Hamilton Boll was not named as a defendant in either suit. In Plunk's cross-action in the first case, and petition in the other, he specifically alleged that the automobile 'Owned by Bastiaan Boll, and being driven by his son,' while proceeding west on Holcombe Boulevard disregarded a red light and struck Plunk's vehicle in the intersection controlled by the light. In Plunk's petition this allegation was followed by a general allegation of negligence in various particulars, all dealing with the manner in which the vehicle was operated, including the running of the red light. In the next paragraph the petition again alleges that the collision, and the damages and injuries sustained by Plunk, were proximately caused by...
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