Paul v. Kirkendall, 8572
| Decision Date | 22 May 1957 |
| Docket Number | No. 8572,8572 |
| Citation | 6 Utah 2d 256,311 P.2d 376 |
| Parties | d 256 Irene PAUL and Charles J. Paul, Plaintiffs and Respondents, v. Woodrow Lawrence KIRKENDALL, John Doe, Jane Doe and John Doe Company, Defendants, and Maryland Casualty Company, a corporation, Garnishee and Appellant. |
| Court | Utah Supreme Court |
Howell, Stine & Olmstead, Richard W. Campbell, Ogden, for appellant.
Young, Thatcher & Glasmann, Ogden, for respondents.
Appeal from an interlocutory order denying appellant's motion for summary judgment. Defendant Kirkendall will be referred to as defendant.
Plaintiffs herein recovered a judgment entered upon a jury verdict against defendant in the sum of $20,000 for personal injuries arising out of an automobile accident. That judgment was affirmed on appeal to this court: 1 Utah 2d 1, 261 P.2d 670.
Garnishee, appellant herein, had issued a policy of insurance in favor of defendant, and paid the judgment to the limit of its policy coverage of $10,000, together with interest.
Plaintiffs, after execution was returned unsatisfied, sued out a writ of garnishment with interrogatories, which was served on appellant, Maryland Casualty Company, as garnishee. In the interrogatories, it was asked, among other things, if garnishee was indebted to defendant. The answer to this question was negative.
Plaintiff then replied to the answers, alleging that garnishee was indebted to defendant in the amount by which the judgment taken against defendant exceeded the amount of the policy coverage.
Plaintiffs in their second reply to garnishee's answer pleaded certain affirmative matters upon which it predicated its contention that garnishee was obligated to defendant, to wit:
That prior to the trial of the above entitled action, the garnishee had an opportunity to settle all of the claims of plaintiffs against the defendant for less than the coverage of defendant under the policy issued by garnishee; that garnishee negligently and carelessly and in violation of its duty failed and refused to settle notwithstanding garnishee knew, or in the exercise of reasonable care should have known, that defendant was liable to the plaintiffs for damages far in excess of the limits of the policy. That in so refusing to settle, garnishee acted in bad faith. That garnishee carelessly and negligently and in bad faith elected to defend the said action upon the question of the amount of damages only, and elected to admit liability of defendant for all damages proceeding therefrom. That garnishee negligently and carelessly presented a defense as to the amount of damages only upon the theory that defendant was not liable for damages resulting from an operation to which plaintiff Irene Paul submitted for the correction of physical injuries sustained in the accident. That the garnishee assumed the complete defense of the action and refused said proferred settlement without consulting with the defendant or legal counsel retained by defendant, and garnishee further carelessly and negligently and in bad faith excluded the defendant's attorney from the trial of said cause and from participation in the appeal which the garnishee subsequently took from the judgment entered. Plaintiffs' reply to garnishee's answers prays as follows:
'Wherefore, plaintiffs pray judgment in favor of the defendant Woodrow Lawrence Kirkendall to the use of the plaintiffs and against the Garnishee Maryland Casualty Company for the said sum of Ten Thousand Six Hundred Five and 39/100 Dollars ($10,605.39) with interest thereon at eight per cent (8%) per annum from November 20, 1953, and for costs of court herein.'
Two additional facts are disclosed in the reply to the answer of the garnishee, as follows: (a) That at the time of trial the defendant was not in the United States but was in the vicinity of Arabia; (b) In paragraph five of the reply to the answer of the garnishee, it is alleged that immediately after the accident: 'The plaintiffs made claim for their injuries and damages aforesaid against said defendant and said claim was referred to the garnishee for handling and was by the garnishee denied.'
The question presented by this interlocutory appeal is whether or not the liability of the garnishee, if any, alleged in plaintiffs' reply to the garnishee's answers herein may be reached by garnishment.
The answer to the question must be determined by analyzing Rule 64D, Utah Rules of Civil Procedure, relating to Garnishment. We quote pertinent portions of said rule.
Rule 64D(d) provides:
. (Emphasis added.)
Rule 64D(h) provides:
* * *' (Emphasis added.)
Rule 64D(m) provides:
(Emphasis added.)
In plaintiffs' brief it is contended that the chose in action in favor of defendant and against the garnishee is a liquidated claim in the amount of $10,605.39. It is impossible either to agree with this contention or to follow the processes by which such conclusion is reached, and the contention is without facts to support the same.
However, we are not here concerned...
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Brown v. Candelora
...214 Tenn. 592, 381 S.W.2d 914 (1964); Ammerman v. Farmers Insurance Exchange, 19 Utah 2d 261, 430 P.2d 576 (1967); Paul v. Kirkendall, 6 Utah 2d 256, 311 P.2d 376 (1957); Murray v. Mossman, 56 Wash.2d 909, 355 P.2d 985 (1960); Kranzush v. Badger State Mutual Casualty Co., 103 Wis.2d 56, 307......
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