Ranallo v. Hinman Bros. Const. Co.

• Decision Date: 15 January 1942
• Docket Number: No. 20642.,20642.
• Citation: 49 F. Supp. 920
• Parties: RANALLO v. HINMAN BROS. CONST. CO. et al.
• Court: U.S. District Court — Northern District of Ohio

49 F. Supp. 920

RANALLO v. HINMAN BROS. CONST. CO. et al.

No. 20642.

District Court, N. D. Ohio, E. D.

January 15, 1942.

Paul P. Sogg, of Cleveland, Ohio, for Ranallo.

Alex Dombey, of Columbus, Ohio, and William M. Byrnes, of Cleveland, Ohio, for Buckeye Union Casualty Co.

Clinton M. Horn (of McKeehan, Merrick, Arter & Stewart) and Geo. Wm. Cottrell, of Cleveland, Ohio, for Hinman Bros. Const. Co. and United States F. & G. Co.

FREED, District Judge.

The plaintiff, Pat J. Ranallo, on November 25, 1940, was seriously and permanently injured by a truck driven and operated by the agent, servant or employee of the Hinman Brothers Construction Company while that company was engaged in the work of the relocation of Mayfield Road in Cuyahoga County in the State of Ohio.

He brought suit against the Hinman Brothers Construction Company, seeking to recover $75,000 for his injuries in the District Court of the United States for the Northern District of Ohio.

The Hinman Brothers Construction Company was issued an automobile insurance policy on June 21, 1940 by the United States Fidelity & Guaranty Company, No. AF-687869 with $25,000/$50,000 limits, in which policy the insurer agreed: "* * * to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed on him by law for damages, including damages for care and loss of services because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident arising out of the ownership, maintenance or use of the automobile * * *."

And further that: "If the insured has other insurance against a loss covered by this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limits of liability of all valid and collectible insurance on such loss."

It was likewise issued an insurance policy on December 30, 1939, by the Buckeye Union Casualty Company, No. MCL-6663, in which the insurer, among its other agreements, contracted:

"Agreement I Liability for To Pay on behalf of the Bodily Injuries Insured all sums which or Death the Insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services because of bodily injuries, including death at any time resulting therefrom, accidentally sustained by any person or persons not employed by the Insured or to whom the Insured may be held liable under any Workmen's Compensation Law. This Coverage subject to the exclusions hereinafter expressed shall apply only:

(A) in so far as such injuries shall result from the business operations of the Insured disclosed in the Declarations * * *;

(B) in so far as such injuries occur at, within or upon the factories, shops, yards, buildings, premises or other specified work places of the Insured or upon the public ways immediately adjoining within the territory disclosed in Item 4 of the Declarations * * * all of which are herein called the `Insured Premises,' but this enumeration shall not include public ways not immediately adjoining the Insured Premises which are occupied and used in common with others;

(C) in so far as such injuries occur elsewhere if caused by the disclosed business operations conducted on the Insured Premises described in said Declarations, or by employes of the Insured engaged in such operations who are required in the discharge of their duties to go off the Insured Premises; * * *."

And further described the operations of the insured covered by the policy of insurance in Item 4-B.

And further stated in its insurance contract under the title:

"Other H. If the Insured has concurrent Insurance insurance covering against loss and/or expense covered by this Policy, the Insured shall not recover from the Company a larger portion of the entire loss and/or expense than the amount hereby insured bears to the total amount of valid and collectible insurance applicable thereto."

Notice of the accident was given by the Hinman Brothers Construction Company to both United States Fidelity & Guaranty Company and the Buckeye Union Casualty Company.

On April 17, 1941, the Buckeye Union Casualty Company addressed a communication to the Hinman Brothers Construction Company, its insured, in which it advised that it would assume no liability for the accident which had occurred, nor would it pay any judgment as a result of the said accident.

United States Fidelity & Guaranty Company, through its attorneys, undertook the defense of the suit and the record of this court shows, by its journal, the following disposition of the action in the case of:

"Pat J. Ranallo | v. > No. 20642 Civil The Hinman Bros. | Construction Co. |

"Entered by Wilkin, J.:

"This day came the parties by their attorneys and a demand for a jury trial having been withdrawn, this cause came on for trial by the Court on the pleadings and the evidence. And the Court having heard the opening statements of counsel on behalf of the parties, and all the evidence adduced on behalf of the parties, and being advised in the matter, upon consideration thereof, does hereby enter judgment for the plaintiff in the sum of Fifteen Thousand ($15,000) Dollars.

"`It is therefore considered and adjudged by the Court that the plaintiff recover of the defendant said sum of Fifteen Thousand ($15,000) Dollars so as aforesaid found due him by the Court, and that the defendant pay its own costs.'"

The foregoing judgment was entered on May 27, 1941, and on May 28, 1941, the court overruled a motion for a new trial.

Thirty days after the entry of the foregoing judgment by this court, to wit, on June 28, 1941, Pat J. Ranallo, by virtue of Sections 9510-3 and 9510-4 of the General Code of Ohio, filed a supplemental complaint in this court, making the Buckeye Union Casualty Company a new defendant in the suit seeking to recover $15,000 from it because of the judgment obtained.

Subsequently, on July 22, 1941, the Buckeye Union Casualty Company filed a third-party complaint, making United States Fidelity & Guaranty Company third-party defendant.

On July 26, 1941, the Buckeye Union Casualty Company filed its answer to the plaintiff's supplemental complaint.

On July 30, 1941, United States Fidelity & Guaranty Company filed its amended answer.

On August 1, 1941, the plaintiff filed his answer to the Buckeye Union Casualty Company's third-party complaint.

On October 13, 1941, the Buckeye Union Casualty Company filed its reply to the amended answer of United States Fidelity & Guaranty Company.

This matter came on before this court on the above-enumerated supplemental pleadings and the evidence.

In these pleadings the principal contentions of the parties and the evidence offered in an attempt to substantiate them were as follows:

The Buckeye Union Casualty Company contends: "* * * that said judgment was without knowledge of said Hinman Brothers Construction Co. and thus entered as aforesaid is not in fact the judgment of this Court but is merely the agreement of the said plaintiff and said United States Fidelity & Guaranty Co. with reference to their settlement and by reason of such agreement the said United States Fidelity & Guaranty Co. should be required to pay said judgment and that by reason of its said agreement both it and the said plaintiff are estopped from asserting any claim in this action against this answering defendant * * *."

And further contends that the premises upon which the injuries were sustained were not included in its policy of insurance and that: "* * * the United States Fidelity & Guaranty Co. desired to have it appear on the records of this Court that said cause was actually tried on its merits, when in truth and in fact it was not so tried, and to have it appear on the record of this Court that the judgment entered by this Court in favor of the plaintiff and against The Hinman Brothers Construction Co. was the judgment of this Court rendered after a full and complete hearing as upon the merits, when in truth and in fact said judgment was not the judgment of this Court but was entered by this Court in accordance with the agreement of the plaintiff and said United States Fidelity & Guaranty Co. and at their request * * *."

And further that: "* * * the plaintiff is estopped from attempting to collect said judgment or any part thereof in this proceeding from this defendant and this defendant further says that if any judgment is entered in this supplemental proceeding the same should be rendered only against said United States Fidelity & Guaranty Co. This defendant further says that the judgments enforcible under Section 9510-4 of the General Code of Ohio are only such as have been rendered after trial and not judgments entered by agreement as in this case * * *."

And further that: "* * * although plaintiff attempts to bring this action under and by virtue of the provisions of Section 9510-4 of the General Code of Ohio, this defendant avers that said Section 9510-4 of the General Code of Ohio contemplates actions on bona fide judgments rendered after trial; that the judgment which appears of record in this case was not a judgment rendered after the trial of said cause on its merits but was a judgment entered by agreement between the said plaintiff and said United States Fidelity & Guaranty Co. without the knowledge of said Hinman Brothers Construction Co., the sole purpose of which was to attempt, on the part of said plaintiff and said ...