Roach v. Churchman, 71-1343.

• Decision Date: 03 April 1972
• Docket Number: No. 71-1343.,71-1343.
• Citation: 457 F.2d 1101
• Parties: E. Roberta ROACH, Administratrix of the Estate of John Hubert Roach, Deceased, Appellant, v. John P. CHURCHMAN, Administrator of the Estate of Merle Ravenstein, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

457 F.2d 1101 (1972)

E. Roberta ROACH, Administratrix of the Estate of John Hubert Roach, Deceased, Appellant, v. John P. CHURCHMAN, Administrator of the Estate of Merle Ravenstein, Appellee.

No. 71-1343.

United States Court of Appeals, Eighth Circuit.

Submitted January 12, 1972.

Decided April 3, 1972.

J. Patrick Green, John P. Miller, Omaha, Neb., David McCann, Council Bluffs, Iowa, Tom H. Davis, Austin, Tex., for appellant.

John M. Peters, Peters, Campbell & Pearson, Council Bluffs, Iowa, for appellee.

Before MATTHES, Chief Judge, BRIGHT, Circuit Judge, and WEBSTER,^* District Judge.

BRIGHT, Circuit Judge.

The parties to this litigation have been before this court previously on the question whether an aviation liability insurance policy provided coverage for a wrongful death claim arising out of an aircraft accident which occurred on August 21, 1966, near Glenwood, Iowa. Merle Ravenstein, the pilot, and his passenger, John Roach, were both killed in that accident. Roach's widow, as administratrix of her late husband's estate, brought an action in the United States District Court for the Southern District of Iowa for wrongful death against the Ravenstein estate, the latter being represented by its administrator, John P. Churchman. In the prior appeal we determined that the policy, written by American Home Assurance Company (American Home), afforded liability coverage for the wrongful death claim. American Home Assurance Co. v. Roach, 431 F.2d 849 (8th Cir. 1970) (Roach I). Pending our consideration of that appeal, Mrs. Roach, administratrix of the Roach estate and plaintiff in the wrongful death action, and John P. Churchman, defendant and administrator of the Ravenstein estate, entered into a settlement agreement which provided that plaintiff take judgment by consent in the sum of $100,000, and provided further that Mrs. Roach would look only to the avails of the American Home insurance policy for satisfaction of that judgment. Contemporaneously, Administrator Churchman assigned to Mrs. Roach all of the rights of the Ravenstein estate in the American Home policy. Several months after execution of the agreement and following the filing of our opinion in Roach I, Mrs. Roach moved the federal district court to enter judgment pursuant to the settlement agreement. American Home filed objections to this motion. The district judge, Judge Hansen, denied the motion. That ruling triggered the instant appeal by the Roach estate. We deny the appeal for want of jurisdiction for the reasons stated below.

We note that appellant, Mrs. Roach, earlier attempted to obtain review of this same order under the provisions of 28 U.S.C. § 1292(b),¹ which permits an interlocutory appeal in certain circumstances. While Judge Hansen made appropriate findings necessary to bring the order under that section, this court administratively denied leave to appeal. Roach v. Estate of Merle Ravenstein, Misc. No. 823, June 15, 1971 (unreported).

Appellant now urges that appeal from the district court order will lie under the provisions of 28 U.S.C. § 1291,² as an appeal from a final decision. Appellant argues that the order should be deemed final and therefore appealable under the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Baxter v. United Forest Products Co., 406 F.2d 1120, 1123 (8th Cir.), cert denied, 394 U.S. 1018, 89 S.Ct. 1635, 23 L.Ed.2d 42 (1969). Appellant also asserts alternate grounds as a basis for our review. First, arguing that the order effectively restrains Churchman, as administrator, from breaching the provisions of the insurance policy by settling without the insurer's permission, appellant insists that the order is reviewable under § 1292(a) (1) as an injunction. Second, appellant requests that we consider the notice of appeal in this case as a petition for a writ of mandamus, thus permitting review of the merits of this questioned order under the provisions of the All Writs Statute, 28 U.S.C. § 1651.

We consider these arguments against the background of Mrs. Roach's substantive claim in which she asserts that the insurer no longer has any right to control the defense of the suit against the Ravenstein estate. She contends that because American Home breached provisions of the insurance contract when it refused to defend the wrongful death action unconditionally, the insured became entitled to settle the wrongful death claim, as Churchman has attempted to do, without constraint of the policy. This contention is bottomed upon Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623 (1951). Conceding that such a settlement must be reasonable to be binding upon the insurer, Mrs. Roach asserts that American Home can raise the question of reasonableness when she seeks to collect the proposed consent judgment from the avails of the policy. In short, it is Mrs. Roach's contention that American Home has forfeited all rights to control the defense or settlement of the wrongful death action under its policy since it offered only a qualified defense which the administrator refused to accept, notwithstanding the issuance of an earlier order of the district court³ in this action authorizing such a qualified defense by the insurer.

We turn initially to appellant's argument that the order is appealable as of right under § 1291 and the rationale of the Cohen decision. In Cohen, supra, 337 U.S. 541, 69 S.Ct. 1221, the Supreme Court considered the appealability of a district court order in a diversity suit refusing application of a New Jersey statute which required plaintiffs in certain stockholder's derivative actions to post appropriate security before proceeding with their suit. The Court held the order appealable under 28 U.S.C. § 1291 as a final order, based upon the following principles:

This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

* * * * * *

We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it. But we do not mean that every order fixing security is subject to appeal. Here it is the right to security that presents a serious and unsettled question. Id. at 546-547, 69 S.Ct. at 1225

The Court amplified its views in Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 (1950), and there stressed that § 1291 should not be construed "* * * so as to deny effective review of a claim fairly severable from the context of a larger litigious process. * * * Id. at 689, 70 S.Ct. at 865. Moore and Ward in Moore's Federal Practice have summarized the dimensions of the Cohen rule as:

. . . appearing to require three characteristics of an order before it can qualify as a `final decision\': (1) the order must be a final determination of a claim of right `separable from, and collateral to,\' rights asserted in the action; (2) it must be `too important to be denied review,\' in the sense that it `presents a serious and unsettled question\'; and (3) its review cannot, in the nature of the question that it presents, await final judgment because `when that time comes, it will be too late effectively to review the . . . order and rights conferred . . . will have been lost, probably irreparably.\' 9 J. Moore & B. Ward, Federal Practice ¶ 110.10, at 133 (2d ed. 1970).

In the instant case, the court's order cannot be deemed collateral to the main action since that order directly relates to the conduct of the defense in the main action. The granting of appellant's motion for a consent judgment would have resulted in a final disposition of the main action, not a disposition of a right "s...