Oceanic Fisheries Co., Inc. v. U.S. Fidelity & Guar. Co., 27708.

• Citation: 9 Wn.2d 484,115 P.2d 714
• Decision Date: 18 July 1941
• Docket Number: 27708.
• Court: United States State Supreme Court of Washington
• Parties: OCEANIC FISHERIES CO., INC., v. UNITED STATES FIDELITY & GUARANTY CO.

115 P.2d 714

9 Wn.2d 484

OCEANIC FISHERIES CO., INC., v. UNITED STATES FIDELITY & GUARANTY CO.

No. 27708.

Supreme Court of Washington

July 18, 1941

Department 1.

Action by Oceanic Fisheries Company, Inc., against the United States Fidelity & Guaranty Company, to recover on employer's liability policy. From a judgment for defendant, plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; Hugh C. Todd, Judge.

Koenigsberg & Sanford, of Seattle, for appellant.

Eggerman & Rosling and DeWitt Williams, all of Seattle, for respondent.

ROBINSON Chief Justice.

Respondent United States Fidelity and Guaranty Company, June 6, 1935 issued to Oceanic Fisheries Company, Inc., a policy of employer's liability insurance containing the following provisions:

'The United States Fidelity and Guaranty Company, hereinafter called the Company, does hereby agree:

'1. To Indemnify the person, firm or corporation named in Statement 1 of the schedule and hereinafter called the Assured, Against Loss From The Liability Imposed By Law Upon The Assured for damages on account of bodily injuries or death at any time resulting therefrom, suffered by any employe or employes of the Assured as the result of an accident while on or about the vessel or vessles described in the schedule of statements below while this policy is in force.

'2. To Defend in the name and on behalf of the Assured any suit brought against the Assured to enforce a claim, whether groundless or not, for damages on account of bodily injuries or death at any time resulting therefrom, suffered or alleged to have been suffered by any employe or employes of the Assured described in the preceding paragraph and as the result of an accident occurring while this policy is in force.'

(The above provisions were contained in a 'Marine Employer's Endorsement' attached to and made a part of the policy.)

'In consideration of the reduced rate of premium for which this policy is issued, it is hereby understood and agreed, that in the event of no legal liability on the part of the assured for damages as conditioned in Insuring Clause One (1) of the Marine Employers Endorsement attached to this policy, this policy does not indemnify the assured against any liability for wages and maintenance of injured employees during disability or for cost of medical, surgical or hospital services or treatment or cure to injured employees of the assured or for any transportation charges incurred by the assured for the transportation of injured employes and anything in the policy or attached endorsements to the contrary is hereby amended accordingly. It is further understood and agreed that in event of a judgment at law against the assured for legal liability for damages as conditioned in Insuring Clause One (1) of the said Marine Employers Endorsement, this policy does indemnify the assured for such wages and maintenance of injured employes during disability and the cost of medical, surgical and hospital services or treatment and cure to injured employes of the assured and for transportation charges for the transportation of injured employes as may be included in any verdict for damages rendered against the assured, and anything in the policy or attached endorsements to the contrary is hereby amended accordingly.'

(The above provisions were contained in a typewritten 'endorsement' attached to and made a part of the policy.)

This case turns upon the construction to be given to the foregoing endorsements, and particularly, upon the words which we have italicized in the endorsement last quoted, 'as may be included in any verdict for damages rendered against the assured,' the appellant assured contending that they mean, which were legally capable of being included in such a verdict or might have been included therein, while the respondent contends they mean, as may actually have been included.

The controversy arises out of the following facts: Albert Haugen suffered a personal injury while employed on a vessel which the assured was operating in Alaskan waters. He received medical attention at Seward, and later, at the Marine hospital in Seattle. The expenses of his treatment at Seward and the cost of his transportation to Seattle were paid by the assured. Thereafter, he brought suit against the assured in the superior court of Washington for King county to recover damages with respect to his personal injury, and recovered a verdict and judgment for $1,000, which judgment was paid by the respondent insurance company.

Haugen then brought an admiralty action in the United States District Court at Seattle against the vessel, its master, owner, and charterer (the assured), alleging that he was still disabled and seeking recovery for further wages, maintenance and cure. This action was dismissed, the court holding the judgment of the state court, above referred to, and which the insurance company had paid, was res judicata with respect to those matters. Haugen v. Oceanic Fisheries Co., Inc., D.C., 21 F.Supp. 572. Thereafter, the Oceanic Fisheries Company brought this action to recover the sum paid by it for treatment of Haugen at Seward, and for his transportation to Seattle, together with the costs of defending the admiralty action. The insurance company prevailed, and the insured appeals.

The trial court, in construing the language of the policy, received a great deal of evidence relating to the intention of the parties, and this evidence is, in that particular, in sharp conflict. It would be impossible to discuss this evidence within the limits of an opinion, nor, in our view, is it necessary to do so. It may be said, generally, that it appears that Mr. Snapp, a member of a firm of insurance brokers acting as agent for the assured, called at the office of the general agents of the respondent insurance company to negotiate the policy. It is agreed that the coverage desired was discussed with Mr. McCollister, the agent of the insurance company, and that he drafted the endorsements; and that, after they were reduced to writing, they were fully discussed between the agent for the assured and the agent for the insurer Before the execution and delivery of the policy. It also appears that the agents of both parties to the insurance contract were familiar with the fact that a seaman, injured while employed on a vessel, has two remedies, one at law under the Jones Act, 46 U.S.C.A. § 688, to recover damages with respect to his personal injury, and another under the general maritime law for maintenance, wages, and cure. This latter remedy is contractual. A seaman has that remedy as a matter of right, irrespective of negligence or fault.

It was known also to these agents, at the time they negotiated the policy for their respective principals, that both remedies may be enforced, and are quite commonly enforced, in a single action at law in a state court. For example, seamen frequently institute a single action at law seeking recovery in a first cause of action with respect to personal injuries and, in a second, for...