Polk Chevrolet Co. v. Salario

• Decision Date: 30 June 1961
• Docket Number: No. 5365,5365
• Citation: 132 So.2d 115
• Parties: POLK CHEVROLET COMPANY, Inc. v. Frank M. SALARIO.
• Court: Court of Appeal of Louisiana — District of US

Page 115

132 So.2d 115

POLK CHEVROLET COMPANY, Inc. v. Frank M. SALARIO.

No. 5365.

Court of Appeal of Louisiana, First Circuit.

June 30, 1961.

Gordon White of White & May, Baton Rouge, for appellant.

Joseph H. Kavanaugh, Charles Franklin of Seale, Hayes, Smith, Keogh & Franklin, Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, JONES, HERGET and LANDRY, JJ.

HERGET, Judge.

Polk Chevrolet Company, Incorporated filed suit against Frank M. Salario on an open account in the sum of $766.45 and attached to the petition a statement of the account representing charges for repairing a 1955 Chevrolet station wagon.

On March 29, 1959 Salario was involved in an automobile collision which resulted in injuries to himself and family and damages to his automobile. He immediately notified Middlesex Mutual Fire Insurance Company, his collision carrier, of the collision. His automobile was removed to Polk Chevrolet Company and negotiations were had between the adjuster for Middlesex and himself to determine the extent of damage and a settlement of his claim against it. In the course of the negotiations, which never resulted in an agreement as to the extent of liability, Salario directed Polk Chevrolet Company to proceed with the repairs to his vehicle.

On May 2, 1960 Defendant, through counsel, answered Plaintiff's suit in the form of a general denial and on May 4, 1960 filed a third party petition against Middlesex Mutual Fire Insurance Company alleging in said petition the charges for the repairs sued for by Plaintiff resulted from an accident he had on March 29, 1959 which was covered under a policy of collision insurance issued to him by third party defendant Middlesex Mutual Fire Insurance Company. He further alleged that he instituted a civil suit against the party responsible for the damage done to his car on March 29, 1959 which action was subsequently compromised but that this claim for property damage to his vehicle insured by third party Defendant was not part of the compromise settlement.

The third party defendant, Middlesex Mutual Fire Insurance Company, answered and set forth that Mr. Salario informed third party Defendant that no demand was to be made on it for damages to his vehicle as his intention was to collect same from Standard Accident and Casualty Company, the insurer of the vehicle with which he had the collision on March 29, 1959. Further answering, third party Defendant admitted its insured, Salario, filed suit on the claim against Standard; denied that the compromise was for personal injuries only and averred that in fact the compromise included any and all property damage now claimed in this third party petition and that third party Plaintiff violated the conditions of its policy and particularly set forth in paragraph 14 the conditions of the policy, providing:

'11. Subrogation: In the event of any payment under this policy, the company shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.'

In the suit filed by Salario in February of 1960 against Standard Accident Insurance Company, the liability insurer of the automobile with which he had collided on March 29, 1959, as shown by a certified copy of the petition introduced in evidence on the trial of the present suit, among the damages itemized by him as having been suffered in said accident was a claim for 'damage to automobile $554.75.' Subsequent to the filing of that suit a settlement was made by Plaintiffs Salario and his wife and for and in behalf of his children in the total sum of $3,400 and, upon compromise, he executed a release which was offered on the trial of this case in which it is specifically provided that same covers all claims for personal injuries, property damage, medical expenses, et cetera, resulting from the automobile accident of March 29, 1959.

The evidence in this case reflects that counsel for Salario notified Middlesex of the filing of his suit in behalf of Salario against Standard Accident Insurance Company but that Middlesex did not intervene in said suit or take any part therein. It is the position of counsel for Salario that Middlesex thereby became estopped to set up as a defense to his third party petition the inability of the insured to comply with the subrogation agreement provided in the policy.

On the trial of the case it was stipulated by and between Plaintiff and Defendant that the amount sued for was due and owing, so that the question for resolution is the determination of the debtor or debtors.

The Trial Court, for oral reasons assigned, gave judgment in favor of plaintiff, Polk Chevrolet Company, Inc. and against defendant, Frank M. Salario; rejected Frank M. Salario's demands in his third party suit against third party defendant, Middlesex Mutual Fire Insurance Company, for the reason that Defendant, the third party Plaintiff, had executed a release to the tort-feasor of all damages sustained by him resulting from the automobile accident 'on or about March 27, 1959.' Though it did not say so, the Court evidently concluded that by the execution of the release to Standard Accident Insurance Company the third party Plaintiff violated the provisions of the collision policy thereby denying to third party defendant, Middlesex, his insurer, the right to a subrogation against the tort-feasor responsible for the causation of the damages to his vehicle.

It is from this judgment in favor of Plaintiff and against Defendant,...