Kain v. Northland Ins. Co., 8181
| Decision Date | 20 September 1971 |
| Docket Number | No. 8181,8181 |
| Citation | 472 S.W.2d 304 |
| Parties | Francis C. KAIN, Appellant, v. NORTHLAND INSURANCE COMPANY et al., Including Kenneth Tapley, Appellees. |
| Court | Texas Court of Appeals |
Anderson, Edwards & Warnick, Hugh Anderson, Lubbock, for appellant.
Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellees.
This appeal presents the question of the proper venue in a plea of privilege proceeding. Francis C. Kain brought suit in Lubbock County against Northland Insurance Company, alleged to be a Minnesota corporation and an inland or general casualty insurance company; against Ranger-Allied Underwriters, alleged to be a Texas corporation domiciled in Houston; and against Kenneth Tapley, dba Kenneth Murchison & Company, alleged to be a resident of Dallas County. Only defendant Tapley, the appellee herein, filed a plea of privilege to be sued in the county of his residence. Plaintiff Kain controverted the plea, and sought to maintain venue against Tapley in Lubbock County under subdivisions 28 and 29a of Article 1995, Vernon's Ann.Tex.Rev.Civ.St. After a hearing the trial court sustained defendant Tapley's plea of privilege, severed the alleged causes of action against him, and ordered the severed causes transferred to Dallas County, the county of his residence. Plaintiff Kain, the appellant, has appealed. Affirmed.
Appellant, through appellee's solicitation, was issued Northland's physical damage automobile insurance policy by Ranger-Allied, insuring appellant's truck and trailer cargo hauling units for collision or upset with comprehensive coverage. An endorsement to the policy provided that no collision or upset coverage was afforded by the policy while the insured property was being operated by anyone other than the drivers listed on the schedule of drivers contained in the endorsement; but provided further that newly hired drivers shall be deemed added to the schedule as of the time of hiring if their names, and certain other information, are reported to Northland within 30 days from the date of hire. One of the units was damaged in an upset and appellant's claim was denied on the sole ground that the unit was being driven at the time by a driver whose name had not been furnished to Northland as required by the policy endorsement. Appellant's suit alleged that timely notice of hire of the driver had been given to appellee as agent of Northland, and therefore Northland was liable under the policy. Alternatively, appellant alleged that if appellee were not Northland's agent at the time of notice and was his agent, or the agent of neither, appellee was liable in tort for his negligence in failing to notify Northland of the additional driver and thereby destroying the insurance coverage. Appellant further pleaded that after denial of his claim and threat of suit, appellee had caused all of appellant's insurance to be cancelled and had prevented appellant from obtaining other insurance on his equipment, resulting in cessation of appellant's business to his damage.
As to the cause of action alleged against appellee for the cancellation of his insurance and the prevention of his obtaining other insurance, appellant tacitly admits it is a matter not necessary to be litigated in the suit against Northland, and appellee's plea of privilege with respect thereto is good. We agree and will not notice further this aspect of the proceeding.
Subdivision 28 of Art. 1995, V.A.T.S., provides for the maintenance of suits against designated classes of insurance companies, one of which is an inland insurance company which Northland is alleged to be, in any county in which the insured property is situated. Subdivision 29a provides that whenever there are two or more defendants in a suit brought and lawfully maintainable against any defendant in any county, suit may be maintained in such...
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