Neighbours v. Harleysville Mutual Casualty Co., Civ. No. 10104.
| Decision Date | 23 January 1959 |
| Docket Number | Civ. No. 10104. |
| Citation | 169 F. Supp. 368 |
| Parties | Eunice M. NEIGHBOURS, Executrix of the Estate of David Lee Neighbours, Deceased, v. HARLEYSVILLE MUTUAL CASUALTY COMPANY. |
| Court | U.S. District Court — District of Maryland |
COPYRIGHT MATERIAL OMITTED
M. King Hill, Jr., and Herbert F. Murray, Baltimore, Md., for plaintiff.
Julius G. Maurer and Stanley R. Bossard, Baltimore, Md., for defendant.
This action on an automobile liability policy is before the court on various motions filed by plaintiff executrix and by defendant Harleysville.
The following facts are alleged in the amended complaint. On or about June 18, 1957, Sanders Motor Company of Emmittsburg, Maryland, permitted Charles Roland Hubbard to take a 1953 automobile owned by it for the purpose of test-driving it in anticipation of its purchase, without restriction as to who might drive the automobile. On the evening of June 18 Hubbard and David Lee Neighbours, Hubbard's friend and employer, were test-driving the automobile; while it was being operated by Neighbours and due to his negligence and carelessness it went off the highway, struck an electric power pole, and both Neighbours and Hubbard were killed.
Defendant disputes the allegation that Sanders imposed no restriction as to who might drive the automobile and disputes the allegation that Neighbours was driving at the time of the accident.
It appears from answers to interrogatories filed by the respective parties that Sanders had a garage liability policy issued by defendant Harleysville, in the usual form, which contained an omnibus clause by which "the insured" was defined to include "any person while using an automobile covered by this policy and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission". The Harleysville policy contained the customary pro rata clause: "if the insured has other insurance against a loss covered by this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss."
Neighbours owned a 1956 Oldsmobile. Nationwide Mutual Insurance Company had issued to him a liability policy covering that automobile, which extended coverage to him while he was operating a private passenger automobile not owned by him. The Nationwide policy provided that the coverage afforded to Neighbours while driving such other automobile "shall be excess over any other collectible insurance against such loss".
The complaint further alleges that after the accident due notice thereof was given to Harleysville in accordance with the terms and conditions of its policy, but that Harleysville refused to assume any liability under its policy to the plaintiff as executrix of David Lee Neighbours, despite demand upon it to do so. Following that refusal, plaintiff executrix negotiated a settlement of the claim made against the estate of David Lee Neighbours by the widow and infant children of Charles Roland Hubbard, and paid $9,500 to them or on their behalf. Appropriate releases were taken to release the estate and all other persons, firms or corporations who might be liable. Demand has been made upon defendant Harleysville to repay the plaintiff executrix the amount so paid in settlement but defendant has refused to pay.
It appears from the answers to interrogatories that the money to make the settlement was advanced by Nationwide under a "Loan Receipt", which provides that the $9,500 is repayable only in the event and to the extent that any recovery may be made by the executrix from Harleysville, and the executrix pledged to Nationwide whatever she might recover from Harleysville.
Defendant Harleysville has filed an amended answer to the amended complaint wherein it sets up eleven defenses, of which the fifth defense is not being pressed and certain other defenses overlap or duplicate each other. Plaintiff has moved to strike certain defenses and defendant has asked leave to make Nationwide a party plaintiff.
Plaintiff executrix has also moved the court to hear and determine in advance of trial a question of law, namely, whether the policies issued by Harleysville and Nationwide to their respective assureds, Sanders Motor Company and David Lee Neighbours, provided primary or excess coverage for any liability of Neighbours as a result of the accident, reserving for determination at the trial the question whether the Harleysville policy extended...
To continue reading
Request your trial
-
United States v. Computer Sciences Corp.
... ... Count 1 also alleges that CSC and co-defendants Luke, Allen, Marti and Derrick ... ...
-
Citizens Mutual Auto. Ins. Co. v. Liberty Mutual Ins. Co.
...105 N.E.2d 568, 31 A.L.R. 2d 1317; American Motorists Ins. Co. v. Weir, 1946, 132 Conn. 557, 46 A.2d 7; Neighbours v. Harleysville Mutual Casualty Co., D.C.D.Md.1959, 169 F.Supp. 368; Farm Bureau Mutual Automobile Insurance Co. v. Preferred Accident Insurance Co., D.C.W.D.Va.1948, 78 F. Sup......
-
U.S. Fidelity & Guaranty Co. v. National Paving & Contracting Co.
...have so held, the cases being collected in an annotation, 49 A.L.R.2d 694, 744 et seq. See, for example, Neighbours v. Harleysville Mutual Casualty Co., 169 F.Supp. 368 (D.C.Md. 1959); Peterson v. Allstate Insurance Company, 164 Cal.App.2d 517, 330 P.2d 843 (1958); Massachusetts Bonding & I......
-
Wells v. Allstate Insurance Company
...liability policies. Six of these held that the garage insurance policy provided primary insurance: Neighbours v. Harleysville Mut. Casualty Co., 169 F.Supp. 368 (D. C.Md.1959); Mountain States Mut. Casualty Co. v. American Casualty Co., 135 Mont. 475, 342 P.2d 748 (1959); Federal Ins. Co. v......