Ohio Casualty Insurance Company v. Berger

• Decision Date: 09 April 1970
• Docket Number: No. 1427.,1427.
• Citation: 311 F. Supp. 840
• Parties: The OHIO CASUALTY INSURANCE COMPANY, Plaintiff, v. Ralph BERGER, Mrs. Helen Berger, Edward Berger and Miss Peggy Hanks, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

311 F. Supp. 840

The OHIO CASUALTY INSURANCE COMPANY, Plaintiff, v. Ralph BERGER, Mrs. Helen Berger, Edward Berger and Miss Peggy Hanks, Defendants.

No. 1427.

United States District Court, E. D. Kentucky, Covington Division.

April 9, 1970.

O'Hara, Ruberg & Cetrulo, by John J. O'Hara, Covington, Ky., for plaintiff.

Bernard J. Blau and J. A. Jolly, Newport, Ky., for Ralph Berger, Helen Berger and Edward Berger.

William Wehrman, Covington, Ky., for Peggy Hanks.

MEMORANDUM AND ORDER

SWINFORD, District Judge.

Plaintiff, Ohio Casualty Insurance Company, issued to the defendant, Ralph Berger, a policy of casualty insurance on a 1965 Chevrolet automobile. The policy contains certain benefits referred to as uninsured motorist coverage, which provide a maximum benefit of $20,000 for any accident in the event that the named insured and or passengers in the insured vehicle sustain injuries as a result of a collision between the insured vehicle and an uninsured vehicle, where the fault of the accident is that of the uninsured automobile. On August 14, 1967, at Cincinnati, Ohio, when the insured vehicle was being operated by the defendant, Edward Berger, who was accompanied by other defendants herein named, such an accident occurred. The defendants, and then passengers of Edward Berger, are Mrs. Helen Berger, Ralph Berger and Miss Peggy Hanks. The complaint states that each of these people are making claims upon the plaintiff and have not been able to reach an agreement between themselves as to how the proceeds of the policy should be distributed. The plaintiff has deposited with the court clerk an amount equal to the maximum coverage of the policy less $2,768.38 which represents medical and other payments already distributed to the defendants, and has brought this action for a bill of interpleader to protect the stake-holder against multiple claims, and to insure a fair distribution among the claimants.

The answer of the defendants states that a distribution arrangement has been agreed upon, but demands that the $2,000 which the plaintiff has set off as paid medical expenses should not be considered a part of the proceeds under the uninsured motorist provision. This raises the only issue of the case: Which is whether the plaintiff should be entitled to set off against the liability provision of its policy $2,000 paid under the medical payment section of the policy? The plaintiff insurer has paid each of the defendants $500 for medical expenses, and asserts that the maximum liability of the policy ($20,000) should be reduced by $2,000 (the sum total of the medical payments). The insurer argues that the clear and unambiguous terms of the policy expressly authorize the set off and that to do otherwise would result in double indemnity. The defendants maintain that Kentucky Revised Statute 187.330 requires a policy minimum of $20,000, and that the set off advocated by the plaintiff would controvert the intent of the Kentucky legislature by reducing the minimum coverage specified by the statute. When this case was filed there had been no decision by the Kentucky Court of Appeals which would control this matter, however, the issue has now become moot since the Court of Appeals resolved the question in a case before it on March 20, 1970, which...