Niagara Fire Insurance Company v. Dyess Furniture Co.
| Decision Date | 30 June 1961 |
| Docket Number | No. 18746.,18746. |
| Citation | 292 F.2d 232 |
| Parties | NIAGARA FIRE INSURANCE COMPANY, Great American Insurance Company and Fireman's Fund Insurance Company, Appellants, v. DYESS FURNITURE CO., Inc., et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. S. Mead, Emmett R. Cox, Birmingham, Ala., for appellant.
William G. Caffey, Mobile, Ala., Caffey, Gallalee & Caffey, Mobile Ala., of counsel for appellees.
Before RIVES, JONES and BROWN, Circuit Judges.
The sole question argued in the district court or in this Court concerns the aggregation of claims to make the jurisdictional amount. Diversity of citizenship has not been questioned. The plaintiffs in the district court were two insurance companies incorporated under the laws of New York, with their principal places of business in the City of New York, and a third insurance company incorporated under the laws of California with its principal place of business in San Francisco, California. The defendants were five corporations, three organized under the laws of Alabama, one under the laws of Mississippi and one under the laws of Florida. By way of precaution, the plaintiffs move in this Court for leave to amend their complaint so as to aver that the principal place of business of each of the defendants was in the state of its incorporation. The defendants interpose no objection to such an amendment. The plaintiffs' motion for leave to amend their complaint is granted. See 28 U.S.C.A. § 1653. Kaufman v. Western Union Telegraph Co., 5 Cir., 1955, 224 F.2d 723, 725.
The complaint sought a declaratory judgment as to whether the defendants had sustained a loss by windstorm covered by policies of insurance issued by the plaintiffs, and as to the amount of any such loss. According to the complaint, on January 1, 1960, each of the three plaintiffs issued a separate policy of insurance naming the five defendants as insureds and insuring them against all direct loss by windstorm to property located at 121 Beauregard Street, Mobile, Alabama. The policy issued by Niagara Fire Insurance Company was in the amount of $16,250; the policy of Great American Insurance Company in the amount of $32,500; and the policy of Fireman's Fund Insurance Company in the amount of $16,250. Each policy contained a "Contributing Insurance Clause" permitting other insurance and providing for the insurer to contribute with such other insurance to the payment of any loss. Each policy provided that it participates to the extent of a certain percentage of the whole, Niagara's policy fixing 25%, Great American's 50%, and Fireman's Fund's 25%.
The complaint alleged that Albert W. Dyess, President of all the defendant corporations, had presented a separate claim and proof of loss to each of the plaintiffs, claiming that on May 6, 1960, a loss occurred to the contends of the aforementioned building at about 10:30 o'clock P. M. caused by windstorm, and that the whole loss was $15,867.86, of which amount the defendants claimed from...
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...& Co., 321 F.2d 468 (10th Cir. 1963); George v. Douglas Aircraft Co., 332 F.2d 73 (2d Cir. 1964); Niagra Fire Insurance Company v. Dyess Furniture Co., 292 F.2d 232 (5th Cir. 1961); Firemen's Ins. Co. of Newark, N. J. v. Robbins Coal Co., 288 F.2d 349 (5th Cir. 1961), cert. denied 368 U.S. ......
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...1137 n. 7 (5th Cir.1980), rev'd on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982); Niagara Fire Insurance Co. v. Dyess Furniture Co., 292 F.2d 232, 233 (5th Cir.1961). Since it appears plainly from this record that jurisdiction exists, it best serves the interests of jus......
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