Roach v. Estate of Ravenstein, Civ. No. 3-760-W.

Citation326 F. Supp. 830
Decision Date06 May 1971
Docket NumberCiv. No. 3-760-W.
PartiesE. Roberta ROACH, Administratrix of the Estate of John Hubert Roach, Deceased, Plaintiff, v. The ESTATE of Merle RAVENSTEIN, Deceased, Defendant.
CourtUnited States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa

J. Patrick Green and John P. Miller, Omaha, Neb., David McCann, Council Bluffs, Iowa, for plaintiff.

John P. Churchman, Council Bluffs, Iowa, for defendant.

John M. Peters, Council Bluffs, Iowa, for American Home Assurance Co.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

HANSON, District Judge.

On March 1, 1971, there came on for hearing before the Court the Plaintiff's Motion for a Consent Judgment, filed herein on December 4, 1970. The Plaintiff Administratrix appeared in person and by her attorney John P. Miller. Resistance to the Motion was filed on September 30, 1970, by American Home Assurance Company, the insurer of the decedent Merle Ravenstein, following submission of a letter request by Plaintiff's counsel for the entry of a Consent Judgment, and an Amended and Supplemental Resistance to the Motion was filed on January 11, 1971. American Home Assurance Company appeared by its attorney John M. Peters. Having heard the evidence, examined the pleadings, and being otherwise fully advised in the premises, the Court finds that it has jurisdiction of the subject matter and the parties.

In disposing of the Plaintiff's Motion, the Court has carefully examined briefs and proposed findings of fact and conclusions of law submitted by counsel for the respective parties in the above entitled cause. There is little, if any, dispute between the parties as it relates to findings of fact. The only controversy is as to the conclusions of law which is to be expected. After due consideration of all the submitted matter, the Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. The Plaintiff's Petition was filed on January 22, 1968. Prior to the filing of the Petition, Plaintiff's counsel contacted John P. Churchman, and requested that he serve as Administrator of the Estate of Merle Ravenstein, the Defendant herein. In furtherance of this request, counsel for the Plaintiff prepared a Petition for the appointment of the Administrator, and secured the execution of same by the Plaintiff Administratrix. The Petition was filed in the District Court of Iowa in and for Pottawattamie County, at Council Bluffs on November 30, 1967, being docketed as Probate No. 19110. On the same date an Oath of Office was filed on behalf of the Administrator and an Order was entered effecting his appointment as Administrator. The only other documents on file in the estate proceeding consist of a copy of the Administrator's Letters of Appointment, a copy of the Summons in this cause of action, reflecting service upon the Administrator on February 6, 1968, and the Proof of Publication of the notice of the appointment of the Administrator and the Notice to Creditors.

2. The Administrator of the Defendant estate has filed no inventory in the estate, and there are no assets known to the Administrator which would be the subject of administration in the estate proceeding, or which would be subject to any judgment rendered in favor of the Plaintiff and against the Defendant estate in this proceeding.

3. The understanding of the Administrator of the Defendant estate, with counsel for the Plaintiff, is that the Administrator will be compensated for his services out of any assets that pass through the estate, in connection with this action, and as a result of any judgment entered in favor of the Plaintiff and against the Defendant estate in this proceeding.

4. After being served with Summons in this case, the Administrator of the Defendant estate advised the widow of the Decedent, Merle Ravenstein, that she should take the copy of the Summons and Complaint to John M. Peters, the attorney for the insurer, who would be handling the case on behalf of the Defendant.

5. On February 26, 1968 the insurer, American Home Assurance Company filed a Declaratory Judgment action in this Court seeking a determination as to the coverage of its policy and its obligation to defend the Defendant estate in this cause of action, which Declaratory Judgment action was docketed as Civil No. 3-769-W. On the same date the Administrator of the Defendant estate filed a Motion for a Stay of this proceeding, which was granted by this Court on March 12, 1968.

6. Thereafter, the Administrator of the Defendant estate was contacted by counsel for the Plaintiff who furnished the Administrator with legal advice and citations, following which the Administrator on April 25, 1968 filed a Motion to Vacate the Stay Order.

7. On July 23, 1968 this Court entered an Order vacating the Stay Order in view of the pendence of the Hearing in the Declaratory Judgment action, which hearing was held on September 12, 1968.

8. Prior to the hearing the insurer communicated with the Administrator of the Defendant estate relative to the defense of this cause of action under a reservation of rights concerning the possible policy defenses. On September 6, 1968 the Administrator of the Defendant estate advised the attorney for the insurer that he would not execute the reservation of rights agreement and requested that the insurer defend this cause of action.

9. Prior to the entry of Declaratory Judgment, the Plaintiff filed its Motion for a Default which was resisted by the insurer, and the insurer filed its Application for Leave to defend this cause of action, subject to a reservation of rights. No resistance to the Application was filed by the Administrator of the Defendant estate. The Application was granted by this Court, following entry of this Court of a Declaratory Judgment determining that the policy of insurance did not provide coverage as to Plaintiff's cause of action.

10. The Plaintiff appealed from the Declaratory Judgment and from the Order of the Court in this proceeding granting the insurer leave to defend, subject to a reservation of rights, and counsel for the Plaintiff also appealed from the Declaratory Judgment and from the Order granting the insurer leave to defend, on behalf of the Defendant estate. It is conceded that all notices and other documents, incident to the appeals on behalf of the Defendant estate were prepared by counsel for the Plaintiff, and costs relative to the appeals of the Defendant estate were paid by counsel for the Plaintiff or reimbursed to the administrator of the Defendant estate, in connection with the appeal.

11. Prior to the initiation of the appeals, an Answer was filed by the insurer on behalf of the Defendant estate, subject to reservation of rights, and the Plaintiff filed extensive interrogatories, which were answered, in behalf of the Defendant estate by the attorney for the insurer, and interrogatories were directed to the Plaintiff, together with requests for admissions, on behalf of the Defendant estate, by the attorney for the insurer, to which no response has been made by the Plaintiff.

12. On February 3, 1970, while the appeals were pending, and approximately four months after the filing of the interrogatories and requests for admissions, directed to the Plaintiff, on behalf of the Defendant estate, counsel for the Plaintiff went to the office of the Administrator of the Defendant estate with the prepared Agreement which is attached to the Plaintiff's Motion for a Consent Judgment. The Agreement was signed by the Administrator of the Defendant estate, at that time, as requested by counsel for the Plaintiff. The Agreement provides that the Plaintiff will seek satisfaction of the Judgment therein provided only from the rights of the Defendant estate in and to the insurance policy, and assigns to the Plaintiff all rights of the Defendant estate in and to the insurance policy, and all rights of the Defendant estate, under said policy, against American Home Assurance Company, alleging failure of the said company to defend this cause of action.

13. The Administrator of the Defendant estate admits that at no time has he made any investigation or inquiry to determine the merits of the Plaintiff's claim or of the controversy between the Plaintiff and the Defendant estate. He further admits that at no time has he consulted with or advised the heirs of the Defendant estate or the widow of the Decedent Merle Ravenstein, nor any one else concerning the Agreement of February 3, 1970, submitted by Plaintiff's counsel and executed by the Administrator. Further, he has had no communication with the Court in the Probate Proceeding of the Defendant's estate concerning said Agreement or his execution of the same. He also admits that he at no time has undertaken to assert any defense to the Plaintiff's cause of action, on behalf of the Defendant estate, or to secure counsel for such purpose, and that he at no time has advised the insurer that he was dissatisfied with the defense asserted by the insurer on behalf of the Defendant estate, or that he did not wish the insurer to proceed with the defense of said estate, and that he is satisfied with the defense that has been asserted by the insurer on behalf of the Defendant estate.

14. The Defendant Administrator further concedes that, at no time, has he sought the advice of independent counsel concerning his actions in connection with this proceeding or with the Declaratory Judgment action, and that he has relied upon the advice, and consented to the requests of Plaintiff's counsel relative to the procedures which he should follow and the actions which he should take in this proceeding, including the execution of the Agreement of February 3, 1970.

15. In statements to the Court Plaintiff's counsel frankly admits the giving of advice to the Administrator of the Defendant estate for the purpose of directing his actions, and in connection therewith asserts the right to do so on the basis of what the Plaintiff contends is the...

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