Kirkpatrick v. Consolidated Underwriters

Decision Date14 November 1955
Docket NumberNo. 7048.,7048.
Citation227 F.2d 228
CourtU.S. Court of Appeals — Fourth Circuit
PartiesMarie S. KIRKPATRICK, Margaret S. Hayes, and J. H. Pearson, Administrators of Estate of N. B. Smithey, deceased, Appellants, v. CONSOLIDATED UNDERWRITERS and T. H. Mastin & Company, Appellees.

Kyle Hayes, North Wilkesboro, N. C., for appellants.

Stephen Perry Millikin and McNeill Smith, Greensboro, N. C. (Smith, Moore, Smith & Pope, Greensboro, N. C., on the brief), for appellees.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and THOMSEN, District Judge.

PARKER, Chief Judge.

This is an appeal from a summary judgment for defendant in an action on a standard policy of Workmen's Compensation and Employers' Liability insurance. The insured was the owner of a hammer mill at which injuries were sustained by one Webster. The complaint alleges that Webster was an employee of insured, that he was injured while in and around the mill performing services for the insured, that the company was notified of the injury but denied liability therefor, and that Webster sued the insured who was forced to employ counsel and incur liability for counsel fees and to pay $3,625 in settlement of the suit. In its answer defendant admitted that it had denied liability under the policy and had refused to make any settlement of Webster's claim or defend the suit instituted by him, but alleged that he was not an employee of insured.

The policy of insurance provided not only for payment of amounts due to any employee under Workmen's Compensation Laws but also to indemnify the insured against loss on account of employers' liability and to defend all suits or other proceedings and demands therefor although these might be wholly groundless, false or fraudulent. The pertinent portions of the policy are as follows:

"1. (b) To indemnify this Subscriber against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employes as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada.
* * *.
"3. To defend, in the name and on behalf of this Subscriber, any suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent."

At a pre-trial hearing the following facts were developed. Webster was injured at insured's mill on September 21, 1951. On January 12, 1952, insured's attorney wrote a letter to the company's representative stating that Webster had received injuries at the mill, that the mill was covered by the policy and that Webster was contending that he was an employee at the time of the injury. On February 20 the representative of the company replied that an investigation did not disclose that Webster had sustained an injury by accident arising "out of and in the course of his employment" and that the company must decline the claim. On February 22, 1952, the representative of the company wrote insured's attorney that he had had a conversation with Webster and the latter's attorney regarding a settlement and that they had indicated that they would enter suit. On March 3, 1952, the company's representative wrote insured's attorney asking that he be advised of any action taken in the case and that he be given copies of any pleadings filed. On December 30, 1952, Webster commenced an action against insured on account of the injury that had been under discussion and filed a complaint in which he alleged that, at the time of his injury "he was cleaning out and in front of and under a hammer mill" belonging to insured, when he was struck by a belt negligently removed from a pulley by one Williams, an employee of insured. Copies of the summons and complaint in the action were sent promptly by insured to the representative of the company, with demand that it defend the action; but these were returned with the statement that there was no insurance coverage that would apply. $3,625 was paid by the insured in settlement of the action brought by Webster.

We think that, upon these facts, there was error in entering summary...

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32 cases
  • In re Mid-Atlantic Toyota Antitrust Litigation
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 4 Abril 1983
    ...issue is resolved against him. 3 Barron & Holtzoff, Federal Practice & Procedure ? 1235 (Rules ed. 1958). In Kirkpatrick v. Consolidated Underwriters, 227 F.2d 228 (4th Cir.1955), this court repeated its holding in Pierce v. Ford Motor Co., 190 F.2d 910 (4th Cir. 1951), that summary judgmen......
  • Johns Hopkins University v. Hutton, Civ. No. 15098.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 10 Diciembre 1968
    ...Barron & Holtzoff, Federal Practice & Procedure § 1235 (Rules ed. 1958). 381 F.2d at 249. Judge Simons cited Kirkpatrick v. Consolidated Underwriters, 227 F.2d 228 (4th Cir. 1955) and Pierce v. Ford Motor Co., supra, for the proposition that summary judgment "should be granted only when it ......
  • Petros v. Kellas
    • United States
    • Supreme Court of West Virginia
    • 24 Octubre 1961
    ...hear evidence and direct a verdict rather than to try the case in advance on a motion for summary judgment, Kirkpatrick v. Consolidated Underwriters, 4 Cir., 227 F.2d 228; but in the light of the undisputed facts and because of the absence of any issue of fact to be tried in this action, th......
  • Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York
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    • Supreme Court of West Virginia
    • 10 Diciembre 1963
    ...84, 85 and 86. See also Sartor v. Arkansas Natural Gas Corporation, 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967; Kirkpatrick v. Consolidated Underwriters, 4 Cir., 227 F.2d 228; Pierce v. Ford Motor Company, 4 Cir., 190 F.2d 910. Even in cases in which the trial judge is of the opinion that he ......
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