Kisting v. Westchester Fire Insurance Company

Decision Date02 October 1969
Docket NumberNo. 17317.,17317.
Citation416 F.2d 967
PartiesJoseph F. KISTING and Anchor Sales Co. Plaintiffs-Appellants, v. WESTCHESTER FIRE INSURANCE COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

William Elden, Chicago, Ill., for appellants.

Daniel J. Leahy, Samuel Levin, Chicago, Ill., for appellee.

Before SWYGERT and CUMMINGS, Circuit Judges, and CAMPBELL, District Judge.

CAMPBELL, District Judge.*

Joseph F. Kisting and Anchor Sales and Service, Incorporated, plaintiffs-appellants were named insureds on a policy of insurance issued by the defendant-appellee, Westchester Fire Insurance Company, and insuring certain farm property located in the State of Wisconsin. On May 30, 1966 the buildings were damaged by fire.

Pursuant to the provisions of the policy the insurer served notice on plaintiff Kisting that it desired to take his examination under oath. The notice was dated August 30, 1966 and was signed by an attorney for the insurer, Daniel J. Leahy as "Representative for said Insurance Company". The examination was scheduled for September 7, 1966. Plaintiff Kisting attended the examination but refused to answer a number of relevant questions.

Defendant subsequently filed a motion for summary judgment based on the refusal to answer these questions. Upon full consideration of all of the issues presented, the District Court granted defendant's motion for summary judgment and dismissed plaintiffs' action, with prejudice.

We have reviewed the entire record and, upon full consideration of the arguments advanced and authorities cited by the parties, we find that the notice of examination was in all respects proper and that under the law of Wisconsin or Illinois, plaintiff Kisting's refusal to answer the many questions asked him at the examination was a breach of the policy provisions and a bar to recovery. There being no genuine issue of fact in dispute the award of summary judgment was proper. Ashwell & Company, Inc. v. Transamerica Insurance Company, 407 F.2d 762 (7 Cir. 1969). All questions of law were thoroughly discussed and correctly resolved in the excellent memorandum of the District Judge ruling on the motion for summary judgment. Kisting v. Westchester Fire Insurance Company, 290 F.Supp. 141 (W.D.Wis. 1968). That memorandum is hereby adopted and incorporated herein.

Accordingly, we affirm.

* Chief Judge Campbell of the Northern District of Illinois is sitting by designation.

To continue reading

Request your trial
39 cases
  • Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo Cnty.
    • United States
    • West Virginia Supreme Court
    • May 28, 2015
    ...Brown v. Ames, 346 F.Supp. 1176 (D.C.Minn., 1972) ; Kisting v. Westchester Fire Ins. Co., 290 F.Supp. 141 (D.C.Wis., 1968), aff'd, 416 F.2d 967 (7th Cir.1969) ; Independent Productions Corp. v. Loew's, Inc., 22 F.R.D. 266 (S.D.N.Y., 1958), Stockham v. Stockham, 168 So.2d 320 (Fla.1964).At t......
  • State Farm Mut. Auto. Ins. Co. v. Curran, s. 5D09–1488
    • United States
    • Florida District Court of Appeals
    • January 6, 2012
    ...Sur. Co., 658 F.Supp. 156, 159 (S.D.W.Va.1987); Kisting v. Westchester Fire Ins. Co., 290 F.Supp. 141, 147 (W.D.Wis.1968), aff'd, 416 F.2d 967 (7th Cir.1969); Warrilow v. Superior Court, 142 Ariz. 250, 253, 689 P.2d 193, 196 (Ariz.Ct.App.1984); Standard Mut. Ins. Co. v. Boyd, 452 N.E.2d 107......
  • Hayseeds, Inc. v. State Farm Fire & Cas.
    • United States
    • West Virginia Supreme Court
    • December 12, 1986
    ...Society of Canton, Ltd., 284 F.2d 155 (4th Cir.1960); Kisting v. Westchester Fire Ins. Co., 290 F.Supp. 141 (W.D.Wisc.1968), affd. 416 F.2d 967 (7th Cir.1969); DiMartino v. Continental Ins. Co. of New York, 187 La. 855, 175 So. 598 (1937); Sumrall v. Providence Washington Ins. Co., 221 La. ......
  • Hiley v. U.S., 85-1739
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 19, 1986
    ...he bears the burden of proof. See, e.g., Kisting v. Westchester Fire Insurance Co., 290 F.Supp. 141, 149 (W.D.Wis.1968), aff'd, 416 F.2d 967 (7th Cir.1969). However, the instant case is not a typical civil action. In addition, the taxpayer does not initiate the proceedings at all, but rathe......
  • Request a trial to view additional results
2 books & journal articles
  • Claims denials
    • United States
    • James Publishing Practical Law Books How Insurance Companies Settle Cases
    • May 1, 2021
    ...v. Farmers Mutual of Nebraska, 669 N.W.2d 462 (2003); Kisting v. Westchester Fire Ins. Co. , 290 F.Supp. 141 (W.D. Wi. 1968), affirmed , 416 F.2d 967 (7th Cir. 1969). If the policyholder designates a representative to answer questions on his behalf, that may be considered under some circums......
  • Chapter 10 Adjusting the Commercial Property Loss
    • United States
    • The Commercial Property Insurance Policy Deskbook (ABA)
    • Invalid date
    ...Co., 147 F.2d 6, 13 (C.A. 7, 1945) (emphasis added).[12] . Kisting v. Westchester Fire Ins. Co. 290 F. Supp. 141 (W.D. Wis, 1968) aff'd, 416 F.2d 967.[13] . Morton v. Auto. Ins. Co. of Hartford, Conn., 102 F. Supp. 3d 1248, 2015 WL 1586092 (N.D. Ala. 2015).[14] . Stephen Fogel Psychological......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT