Ostermiller v. Parker
| Citation | 152 Mont. 337,451 P.2d 515 |
| Decision Date | 21 April 1969 |
| Docket Number | No. 11438,11438 |
| Parties | Pat OSTERMILLER, an infant, by Emma Ostermiller, her guardian, Plaintiff, v. Michael PARKER, Defendant. Michael PARKER, a minor, by William Parker, his guardian and litem, Third-Party Plaintiff and Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Glens Falls Insurance Company, State FarmMutual et al., Third-Party Defendants and Appellants. |
| Court | United States State Supreme Court of Montana |
Robert L. Kelleher (argued), Billings, for appellant.
Cooke, Moulton, Bellingham, Longo & Mather, Ward Swanser (argued), Crowley, Kilbourne, Haughey, Hanson & Gallagher and Bruce R. Toole, Bruce R. Toole (argued), Hutton, Schiltz & Sheehy, Lee Overfelt, Billings, for respondent.
On July 15, 1964, William Parker purchased a 1956 two door Mercury automobile from Midland Dodge Inc. A 1954 two door Chevrolet was traded in on the Mercury and William Parker signed a contract with Midland Dodge after his son, Michael, paid the dealer $100 in addition to the trade-in. Apparently, after two additional payments of $38 each which were to be made on August 2 and August 20, 1964, the Mercury was to belong to Michael.
At the time of the trade William Parker signed the purchase order agreement and also signed a promissory note. Midland Dodge kept the certificate of title, the certificate of registration, the notice of lien and the release of lien.
On July 26, 1964, Michael Parker was involved in an accident with an automobile driven by one Lloyd Papke, and in which one Pat Ostermiller was a passenger. Thereafter, on August 1 or 2, 1964, after the accident, William Parker paid the balance of $76 and Midland Dodge give him the certificate of title, the certificate of registration, the notice of lien and the release of lien. William Parker failed to send the title to the registrar of motor vehicles at Deer Lodge because, as he put it in his deposition, 'I didn't see no sense in it * * * because the car was demolished.'
Subsequently there arose an original action, Pat Ostermiller v. Michael Parker, brought by Miss Ostermiller for injuries she sustained in the accident on July 26, 1964. Michael Parker, through William Parker, his guardian ad litem, then filed a third party complaint against Nationwide Mutual Insurance Company, the insurance carrier of William Parker; Glens Falls Insurance Company, the insurance carrier of Midland Dodge; State Farm Mutual Automobile Insurance Company, the insurance carrier of Pat Ostermiller's parents; and John Doe Insurance Company, the insurance carrier of Lloyd Papke.
The third party complaint alleged, inter alia, that the third party defendant, Nationwide, had in effect on July 26, 1964, a policy of liability insurance insuring William Parker and his son, Michael, who was alleged to be a resident of the same household, and that the policy afforded coverage to persons operating non-owned and owned automobiles; that Glens Falls had in force at the time of said accident a policy of insurance insuring Midland Dodge; that if no coverage was affored by either Nationwide or Glens Falls, then Pat Ostermiller was covered by the uninsured motorist coverage of a policy issued by State Farm Mutual to her parents.
In addition, the third party complaint alleged that John Doe Insurance Company had issued its policy of insurance providing for uninsured motorist coverage to Lloyd Papke, the driver of the automobile in which Miss Ostermiller was riding at the time of the accident. Apparently, John Doe Insurance Company was dismissed by the court on the grounds that there was no uninsured motorist coverage in that policy.
The depositions of Michael and William Parker were taken, the originals or copies of the policies issued by the three remaining insurance firms were submitted to the court as were copies of the certificate of title and a contract for agreement of sale between Midland Dodge and William Parker. The matter was then submitted to the court on briefs. Finally, based on the stipulation entered into by counsel for the three insurance companies submitting the matter on briefs, the court granted a motion for summary judgment in favor of Nationwide and State Farm and against Glens Falls.
Thereafter, because the original actions of Pat Ostermiller v. Michael Parker and Lloyd Papke v. Michael Parker had been set for trial and because the court refused to postpone trial pending this appeal, Glens Falls settled the personal injury claim of Pat Ostermiller (who had married Lloyd Papke) and the property damage claim of Lloyd Papke. Glens Falls also paid to John C. Sheehy, Esq., attorney for the Parkers, $500 in attorney fees and reimbursed him for court costs in the amount of $21.80. These sums were contained in the judgment signed by District Judge C. B. Sande.
Glens Falls now appeals from the summary judgment and contends that either Nationwide or State Farm, under their uninsured motorist coverage, are liable over to Glens Falls for the sums paid to the Papkes as well as for the money paid to attorney Sheehy.
Appellant contends that failure of William Parker to submit title to the registrar of motor vehicles as required by section 53-109(b), R.C.M.1947, should not work prejudice against Midland Dodge or its insurer, Glens Falls. The subsection in question reads as follows:
'Within ten (10) days thereafter (meaning after a transfer of title or interest), the transferee shall forward both the certificate of...
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