Kester v. Travelers Indem. Co. of Hartford, Conn.

• Decision Date: 30 June 1965
• Docket Number: No. 51724,51724
• Citation: 257 Iowa 1146,136 N.W.2d 261
• Parties: Juanita KESTER, Administratrix of the Estate of Connie Kester, Deceased, Appellee, v. The TRAVELERS INDEMNITY COMPANY OF HARTFORD, CONNECTICUT, City of Boone, Iowa, James Scamman, and Carylee Boyd, Appellants.
• Court: Iowa Supreme Court

Page 261

136 N.W.2d 261

257 Iowa 1146

Juanita KESTER, Administratrix of the Estate of Connie Kester, Deceased, Appellee, v. The TRAVELERS INDEMNITY COMPANY OF HARTFORD, CONNECTICUT, City of Boone, Iowa, James Scamman, and Carylee Boyd, Appellants.

No. 51724.

Supreme Court of Iowa.

June 30, 1965.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellants.

Doran, Doran, Doran & Courter, Boone, for appellee.

THORNTON, Justice.

This is an interlocutory appeal from a ruling of the trial court overruling defendants' motions to strike and to dismiss.

Plaintiff brings this action for the negligent death of her decedent while a patron in the swimming pool operated by defendant city. Defendants are the city, two of its employees and its liability insurer. The petition is in two counts, one based on specific negligence and in the other plaintiff relies on the doctrine of res ipsa loquitur. In paragraphs six and ten of Count I and by reference in Count II plaintiff alleges defendant insurer issued a liability policy to defendant city for which defendant city paid a valuable premium and by virtue thereof defendant insurer assumed primary obligation on behalf of defendant city and its employees in the operation of the swimming pool, that the insurer is a real party in interest and liable concurrently with defendant city, and set forth the policy limits. A copy of the policy of insurance was not attached to or set out in the petition.

Defendants moved to strike the allegations relative to the insurer as being improper, immaterial and frivolous, to dismiss as against the insurer, and in the event of an adverse ruling thereon to require plaintiff to state whether the policy was in writing or oral and if in writing to set forth the same in full as required by rule 91, Rules of Civil Procedure, 58 I.C.A.

On the hearing on the motions defendant insurer offered to produce the policy so plaintiff could attach it to the petition by amendment. In this state of the pleadings the trial court, Judge Uhlenhopp presiding, properly stated the question was whether defendant insurer is an indemnitor or assumed primary liability of the torts of the other defendants, overruled the motion to strike and to dismiss, ordered defendant insurer to produce the policy and plaintiff to amend its petition setting forth a copy of the policy in full.

Upon plaintiff amending her petition as required defendants filed new motions to strike paragraphs six and ten in Count I and the same as pleaded by reference in Count II and all references to the insurer, its policy and the copy of the policy attached, as it now appears defendant insurer had not assumed primary liability for the other defendants and such were immaterial, frivolous and improper matter and the insurer was not a proper party. Defendants moved to dismiss as to the insurer for the reason the petition failed to state facts on which any relief could be granted against the insurer and any purported action against the insurer was premature. The trial court overruled these motions stating the ruling of the first judge was reaffirmed.

I. These motions were good and should have been sustained, striking all allegations and all references to the insurer, the copy of the policy, and dismissing the action.

Rule 28, Rules of Civil Procedure, provides as follows:

'Defendant remedies joined. An action heretofore cognizable only after another has been prosecuted to conclusion may be joined with the latter; and the court shall grant relief according to the substantive rights of the parties. But there shall be no joinder of an action against an indemnitor or insurer with one against the indemnified party, unless a statute so provides.'

Section 516.1, Code of Iowa 1962, I.C.A., in pertinent part provides:

'Inurement of policy. All policies insuring the legal liability of the insured, * * * shall * * *, contain a provision providing that, in event an execution on a judgment against the insured be returned unsatisfied in an action by a person who is injured or whose property is damaged, the judgment creditor shall have a right of action against the insurer to the same extent that such insured could have enforced his claim against such insurer had such insured paid such judgment.'

The pertinent insuring agreement in the policy is:

'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness of disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the hazards hereinafter defined.'

The applicable condition in the policy is:

'Action Against Company.

'Coverages A [set out above] and B

'No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.

'Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. Nothing contained in this policy shall give any person or organization any right to join the company as a co-defendant in any action against the insured to determine the insured's liability.'

The rule, statute and policy provisions make it clear the cause of action here brought by plaintiff against the insurer does not arise until plaintiff is in the...