Jones v. Thunderbird Transportation Company

• Decision Date: 04 November 1959
• Docket Number: No. T-2260.,T-2260.
• Citation: 178 F. Supp. 9
• Parties: Margaret E. JONES, Plaintiff, v. THUNDERBIRD TRANSPORTATION COMPANY, Inc., and American Fidelity and Casualty Company, Inc., Defendants.
• Court: U.S. District Court — District of Kansas

178 F. Supp. 9

Margaret E. JONES, Plaintiff, v. THUNDERBIRD TRANSPORTATION COMPANY, Inc., and American Fidelity and Casualty Company, Inc., Defendants.

No. T-2260.

United States District Court D. Kansas.

November 4, 1959.

Herbert A. Marshall (of Meyers, Gault, Marshall & Hawks), Topeka, Kan., for plaintiff.

Irwin Snattinger, David H. Fisher and Donald Patterson, Topeka, Kan., for defendants.

STANLEY, District Judge.

This action arises out of a motor vehicle collision between an automobile operated by the plaintiff and a passenger bus which was operated by the defendant Thunderbird Transportation Company, Inc. (hereinafter referred to as Thunderbird). In the fourth paragraph of the complaint, the plaintiff incorporates and makes a part thereof an insurance policy issued by the defendant American Fidelity and Casualty Company, Inc. (hereinafter referred to as Insurer) to the defendant Thunderbird. The defendants have moved to strike from the complaint the language in paragraph four of the complaint, which incorporates the insurance policy, and to strike the policy, attached to the complaint and incorporated therein by reference.

Insurer is made a party defendant to this action by virtue of Kan.G. S.1957 Supp., 66-1,128, which provides:

"Liability insurance required before certificate or license issued. No certificate or license shall be issued by the state corporation commission to any * * * carrier * * * until and after such applicant shall have filed with, and the same has been approved by, the state corporation commission, a liability insurance policy in some insurance company or association authorized to transact business in this state, in such reasonable sum as the commission may deem necessary to adequately protect the interests of the public with due regard to the number of persons and amount of property involved but in no event shall such sum be less than * * * ten thousand dollars ($10,000) for personal injury or death to any one person in any one accident * * * which liability insurance shall bind the obligors thereunder to pay compensation for injuries to persons and loss of or damage to property resulting from the negligent operation of such carrier: Provided, A certificate of any insurance company or association authorized to transact business in this state, in a form approved by the state corporation commission and certifying that there is in effect the liability insurance required by this section, may be filed in lieu of the insurance policy itself: Provided further, That in the event such certificate is filed, whenever requested by the commission, such company shall furnish to the commission a duplicate original of said policy and all endorsements thereon. No other or additional bonds or licenses than those prescribed in this act shall be required of any motor carrier by any city or town or other agency of the state."

The insurance contract issued by Insurer to Thunderbird provides that Insurer will pay, subject to the limits of liability, all sums which the insured may become legally obligated to pay as damages because of bodily injury arising out of the use of the vehicle. Under Kansas law, the provision referred to would cause the policy to be classified as one of liability and not one of indemnity. Burks v. Aldridge, 1942, 154 Kan. 731, 121 P.2d 276, 280. In that case the court said:

"* * * It is generally held, for instance, and with sound reason, that a policy under whose terms the insurer's obligation arises only when the liability of the insured has been established by judgment against him is equally one for `liability insurance' rather than for indemnity insurance. 29 Am.Jur. 796, 798, § 1061, and cases there cited; Brandon v. St. Paul Mercury Indemnity Co., 132 Kan. 68, 70, 71, 294 P. 881, 83 A.L.R. 673. What was said in the Jones case Dunn v. Jones, 143 Kan. 218, 53 P.2d 918, must be viewed in the light of the specific issue there determined under the statute involved. The distinction, as generally stated, between `liability insurance' and `indemnity insurance' is simply that in the former the coverage attaches when the liability attaches, while in the latter no action lies against the insurer until an actual loss in the discharge of the liability has been sustained by the insured * * *."

However, whatever label we may give the policy in this suit, its terms specifically provide that no action may be maintained directly against the insurer until a judgment has been obtained...