Kujawa v. Am. Indem. Co.

• Decision Date: 14 April 1944
• Citation: 245 Wis. 361,14 N.W.2d 31
• Parties: KUJAWA et al. v. AMERICAN INDEMNITY CO. et al.
• Court: Wisconsin Supreme Court

245 Wis. 361

14 N.W.2d 31

KUJAWA et al.

v.AMERICAN INDEMNITY CO. et al.

Supreme Court of Wisconsin.

April 14, 1944

Appeals from Circuit Court, Wood County; Herman J. Severson, Judge.

Personal injury action by Esther Kujawa and others against the American Indemnity Company, wherein the Continental Casualty Company was interpleaded as a party defendant on the motion of the American Indemnity Company and the Continental Casaulty Company filed a cross-complaint. From a judgment dismissing the complaint and cross-complaint, the plaintiffs and defendant Continental Casualty Company appeal.-[By Editorial Staff.]

Reversed and remanded with directions.Plaintiffs-appellants were injured in an automobile collision on July 26, 1941, between an automobile operated by one Chester Gruchalski and an automobile operated by one Arnold Coaty. Plaintiffs were passengers in the Gruchalski car, insured by the defendant-appellant Continental Casualty Company. The Coaty car was insured by the defendant-respondent American Indemnity Company. Plaintiffs commenced their action against the American Indemnity Company by service of summons and complaint on June 21, 1943. Thereafter, on motion of the American Indemnity Company, the Continental Casualty Company was interpladed as a party defendant, and the pleadings were accordingly amended.

On August 30, 1943, the American Indemnity Company moved for an order for summary judgment dismissing the complaint of the plaintiffs upon its merits and the cross-complaint of the defendant Continental Casualty Company. The motion for summary judgment was on the ground that plaintiffs had not brought an action against Coaty or served notice as provided by sec. 330.19(5), Stats., within two years from the date of the collision. Plaintiffs' action against Coaty's insurance carrier was commenced within the two-year period. A summary judgment was entered December 30, 1943, wherein it was adjudged (1) that the plaintiffs' complaint was without merit as to the defendant American Indemnity Company; (2) that there were no questions of fact presented by the pleadings, adverse examination, and affidavits in support of said motions and in opposition thereto; (3) that the plaintiffs' complaint should be dismissed on the merits as to the defendant American Indemnity Company, with costs against the plaintiffs in the sum of $146.69; and (4) that the cross-complaint of the defendant Continental Casualty Company should be dismissed on the merits as to the American Indemnity Company, with costs against the defendant Continental Casualty Company in the sum of $100.

The plaintiffs appeal, and defendant Continental Casualty Company also appeals.

Arlo McKinnon, of Milwaukee, for appellants Esther, Valentine and Robert Kujawa.

M. S. King, of Wisconsin Rapids, for appellant Continental Casualty co.

Bendinger, Hayes & Kluwin, of Milwaukee, for respondent.

MARTIN, Justice.

In its decision on the motion for summary judgment, the trial court said: ‘The defendant, American Indemnity Company, had issued to Arnold Coaty a policy of insurance covering the accident in question. The policy was one wherein the insurance carrier agreed to indemnify the assured against the loss sustained. After two years had expired from the happening of the accident there was no liability on the part of Arnold Coaty, it being completely barred by the statute. The cause of action was completely wiped out. There being no liability on the part of Coaty then there is no liability on the part of the insurance carrier because under its contract there is no one to indemnify. Coaty not being liable the insurance carrier is not liable.'

Since the enactment of ch. 341, Laws of 1925, sec. 85.25, Stats.1927, this court has repeatedly held that sec. 85.25, Stats.1927, makes the insurance company directly liable ‘to the persons entitled to recover for the death of any person, or for injury to person or property, caused by the negligent operation, maintenance, use or defective construction of the vehicle described therein,’ up to the amount of its policy. Sec. 85.25 was amended by ch. 467, Laws of 1929, by adding thereto, following the clause, ‘that the insurer shall be liable to the persons entitled to recover for the death of any person, or for injury to person or property,’ the clause, ‘irrespective of whether such liability be in praesenti or contingent and to become fixed or certain by final judgment against the insured, when * * *’. Sec. 85.25 was renumbered by ch. 454, Laws of 1929, and has since remained sec. 85.93, Stats.

There can be no doubt as to the right of plaintiffs to pursue their action against Coaty's insurance carrier alone. See Elliott v. Indemnity Ins. Co., 201 Wis. 445, 448, 230 N.W. 87;Oertel v. Williams and Fidelity & Casualty Co., 214 Wis. 68, 72, 251 N.W. 465;State ex rel. Jackson v. Leicht, 231 Wis. 178, 181, 285 N.W. 335;State ex rel. Boyd v. Aarons, 239 Wis. 643, 646, 2 N.W.2d 221.

While respondent concedes plaintiffs' right to sue the insurer of the Coaty car alone, it argues that the liability of the insurer is contingent upon the existence of a valid cause of action against the alleged tort feasor (Coaty), and that such cause of action must continue to be in existence until final judgment is entered. This contention cannot be sustained. The answer is in the language of the statute, ‘* * * the insurer shall be liable to the persons entitled to recover for the death of any person, or for injury to person or property, irrespective of whether such liability be in presenti or contingent and to become fixed or certain by final judgment against the insured, * * *.’ In support of its...