Maryland Casualty Company v. Turner
| Decision Date | 07 October 1975 |
| Docket Number | No. CIV-74-340-B.,CIV-74-340-B. |
| Citation | 403 F. Supp. 907 |
| Court | U.S. District Court — Western District of Oklahoma |
| Parties | The MARYLAND CASUALTY COMPANY, a corporation, Plaintiff, v. Ronald TURNER et al., Defendants. |
George F. Short and John E. Wiggins, of Pierce, Couch, Hendrickson & Short, Oklahoma City, Okl., for Maryland Casualty Company.
David W. Edmonds, of Foliart, Mills & Niemeyer, Oklahoma City, Okl., for Ronald Turner and James J. O'Donnell, d/b/a Woodstock Drive-In Theatre.
Tom L. King, of Nance, King & Roberts, Oklahoma City, Okl., for Suzanne Elizabeth Orsi and Leo E. Orsi.
STATEMENT
Plaintiff in its Complaint prays for judgment declaring the rights and obligations of the parties and that Maryland Casualty Company has no coverage under its policy No. 31-613175 to Ronald Turner and James J. O'Donnell on account of any claims arising out of the injuries sustained by Suzanne Elizabeth Orsi on August 5, 1973, and that plaintiff has no obligation on behalf of said Ronald Turner and James J. O'Donnell to defend, settle, or pay any judgment in Case No. CJ-74-290, District Court of Oklahoma County, Oklahoma.
The defendants, Ronald Turner and James J. O'Donnell d/b/a Woodstock Drive-in Theatre, answer saying that the defendant, Suzanne Elizabeth Orsi had not attended the so-called rock festival and concert, but came into the theater after the rock festival was over. Defendants affirmatively state that at the time of the accident the drive-in theater was showing the regularly featured motion picture. Said defendants deny that the Petition filed in State Court, which is attached to plaintiff's Complaint, alleges a joint venture relationship between these defendants, Ronald Turner and James J. O'Donnell and the defendant, William Hayden Payne in Case No. CJ-74-290 in the District Court of Oklahoma County. These defendants further allege that their liability, if any, arising out of the accident involving Suzanne Elizabeth Orsi is covered by the policy of insurance issued by the plaintiff; that the exclusion relied upon by the plaintiff as set forth in plaintiff's Complaint is not applicable to the facts existing at the time of the accident and that, therefore, the plaintiff should be denied declaratory judgment and should be required to defend and pay any judgment which may be rendered against the defendants in favor of Suzanne Elizabeth Orsi in the State Court action. Defendants further allege that plaintiff has waived any policy defense it may have respecting the exclusionary clause referred to in the plaintiff's Complaint, and that plaintiff is estopped to deny coverage under the exclusionary clause mentioned in plaintiff's Complaint. Defendants Ronald Turner and James J. O'Donnell further pray that they be granted a declaratory judgment imposing upon plaintiff the obligation to provide coverage for any liability of these defendants arising out of the accident and injuries to Suzanne Elizabeth Orsi.
The defendants, Suzanne Elizabeth Orsi and Leo Orsi, answered the Complaint of the plaintiff, alleging that the policy of insurance attached to plaintiff's Complaint be declared to be in full force and effect at the time of the injury complained of, and deny that there was a joint venture between the defendants, Ronald Turner, James O'Donnell and William Haydon Payne, and further that if there was a joint venture the insurance policy did cover the accident in question for the reason that the insured was engaged in the activity for which the insurance was written. These defendants pray that the Court make a finding that the Maryland Casualty Company has coverage under its Policy No. 31-613175 issued to Ronald Turner and James J. O'Donnell, d/b/a Woodstock Drive-in Theatre, and to find Suzanne Elizabeth Orsi is a third party beneficiary under the policy.
The Counter-claim of the defendants, Ronald Turner and James J. O'Donnell, d/b/a Woodstock Drive-in Theatre is not before the Court at this time and is to be dealt with at some later date.
On April 25, 1975, all defendants herein moved for summary judgment, and on May 5, 1975, the plaintiff, Maryland Casualty Company moved for summary judgment. Also on May 5, 1975, the plaintiff requested admissions of Ronald Turner and James J. O'Donnell, d/b/a Woodstock Drive-in Theatre and also requested admissions of Suzanne Elizabeth Orsi and Leo E. Orsi. Thereafter, on May 20, 1975, all defendants filed their Answers to Request for Admissions. On May 20, 1975, all parties signed and filed a Stipulation which reads as follows:
The Court has carefully reviewed the entire file, the pleadings, the Stipulations, the Requests for Admissions and Answers to Requests for Admissions and the depositions as set out in the Stipulation of May 20, 1975. The Court has carefully read the scholarly briefs of the parties and has reviewed the policy of insurance No. 31-613175, and based upon all of the foregoing the Court finds and concludes as follows:
The Maryland Casualty Company issued its liability insurance policy to Ronald Turner and James J. O'Donnell, d/b/a Woodstock Drive-in Theatre, which policy had a designation that the named insured was a partnership.
The policy of insurance, because of its exposure, provided for a fixed premium and the right to audit the business of the theatre to determine if additional premiums should be paid for the exposure and coverage.
In July, 1973, Woodstock Drive-in Theatre owed KWHP Radio Station between $70 and $80, a debt which was long past due, and in order to help each other in their respective distressed businesses they entered into an agreement whereby for a period of 10 days prior to August 5, 1973, KWHP Radio Station would advertise "Fun Night at Woodstock" by making commercial plugs every hour, the wording and time period of such commercial plugs being in the exclusive control of KWHP. KWHP agreed to furnish free two or three bands which would play on the premises of Woodstock Drive-in Theatre from 5:30 p. m. August 5, 1973, until approximately dark. Through this arrangement KWHP Radio Station would receive ½ of the gate receipts collected from ticket sales and would cancel the debt owed by Woodstock Drive-in Theatre.
It was agreed that Woodstock Drive-in Theatre would show three movies suitable for entire family viewing; that Woodstock Drive-in Theatre would have complete control of its premises to the exclusion of KWHP and would have all concession rights and profits; that when the night's business was concluded Woodstock would pay ½ of the gate receipts to KWHP for its advertising services rendered in promoting "Fun Night at Woodstock."
On the night of August 5 Woodstock Drive-in Theatre did pay to KWHP Radio Station by check marked "for advertisement" the amount of $642.50 for its ½ of the total gate receipts for the advertising services rendered by KWHP as per their agreement.
The Court finds that when Suzanne Elizabeth Orsi and her date arrived at the Woodstock Drive-in Theatre the bands were no longer...
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