New Amsterdam Casualty Co. v. BL Jones & Company

• Decision Date: 09 May 1958
• Docket Number: No. 16932.,16932.
• Citation: 254 F.2d 917
• Parties: NEW AMSTERDAM CASUALTY COMPANY, Appellant, v. B. L. JONES & COMPANY and W. W. Roberts, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

254 F.2d 917 (1958)

NEW AMSTERDAM CASUALTY COMPANY, Appellant, v. B. L. JONES & COMPANY and W. W. Roberts, Appellees.

No. 16932.

United States Court of Appeals Fifth Circuit.

May 9, 1958.

W. Francis Marion, Greenville, S. C., R. Wilson Smith, Jr., Gainesville, Ga., Mark Dunahoo, Winder, Ga., Robert S. Galloway, Jr., Orville Gibert Calhoun, Jr., Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, S. C., for appellant.

Herbert R. Edmondson, Gainesville, Ga., J. LaRue Hinson, Hinson & Hamer, Greenville, S. C., for appellees.

Before RIVES, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This action began as a suit by New Amsterdam on an account for insurance premiums allegedly due from Jones on three insurance policies¹ covering Jones as a subcontractor to lay specified portions of gas pipeline in Pickens County, South Carolina. Jones answered admitting the demand for and refusal to pay these premiums and counter-claimed and simultaneously moved for judgment for damages arising from New Amsterdam's alleged breach of the insurance contracts after June 4, 1955, when a crawler tractor operated by an employee of E. M. Null-Westcliff Contractors who was engaged by Jones to perform certain tunneling operations, necessary to the completion of Jones' contract, was involved in a collision with a private automobile. This collision resulted in a damage suit and judgment against Jones for $6500. New Amsterdam denied liability on the policies and defended this state court suit under a non-waiver agreement. Under local law, the tractor, which had been leased from Alexander Potash & Sons, Inc.,² was attached by the plaintiff in the damage suit and rental payments of $800 per month continued to accrue³ against Jones.

As a result of the attachment of the tractor, the state court suit and the denial of liability by New Amsterdam, the prime contractor, Richards, withheld some $14,000 in retainages from Jones under its contract. These matters form the basis of Jones' counterclaim which the District Court refused to dismiss on the motion of New Amsterdam considered by the Court along with Jones' motion for summary judgment.

This motion of New Amsterdam opposed the counterclaim on several grounds⁴ which pointed up the heart of the controversy. Jones countered with a motion for summary judgment, F.R.C.P. 56, 28 U.S.C.A., upon which the District Court ruled that the tractor, as such, was covered by the Contractor's Liability policy and that the contract between Jones and Potash was not contractual assumption of liability to the plaintiff in the state court suit nor was it any basis of a claim against New Amsterdam. In the same order, which was unfortunately styled "Judgment," the Court stated that a trial would still be necessary on the questions whether E. M. Null-Westcliff was in fact an independent contractor and the various asserted elements and amount of damages. It is from this ruling that New Amsterdam now appeals.

On these facts a jurisdictional issue whether this action of the trial court is presently appealable, immediately presents itself. We are clear that this was not such a final order as would give this court jurisdiction of an appeal. That this is not a final judgment as contemplated by 28 U.S.C.A. § 1291 is obvious. Refusal to dismiss a claim, patently leaving questions for later determination, makes no final adjudication and is not appealable. Ballard v. Mutual Life Ins. Co., 5 Cir., 109 F.2d 388; In re Kilpatrick, 5 Cir., 167 F.2d 471; Toomey v. Toomey, 80 U.S.App.D.C. 77, 149 F.2d 19. Nor is this order appealable as a judgment on one of multiple claims. Rule 54(b) requires a certificate by the District Court that there is no reason for delay of appeal of one of multiple claims. The ruling...