Seaborn v. Preferred Acc. Ins. Co. of N.Y., 34363

• Decision Date: 02 July 1952
• Docket Number: No. 34363,34363
• Citation: 206 Okla. 626,246 P.2d 365
• Parties: , 1952 OK 249 SEABORN v. PREFERRED ACC. INS. CO. OF NEW YORK.
• Court: Oklahoma Supreme Court

Page 365

246 P.2d 365

206 Okla. 626, 1952 OK 249

SEABORN v. PREFERRED ACC. INS. CO. OF NEW YORK.

No. 34363.

Supreme Court of Oklahoma.

July 2, 1952.

Syllabus by the Court.

1. An insurance policy which provides it will pay all sums which insured shall become obligated to pay by reason of liability imposed by law, and which prescribes the procedure of determining liability, is a liability policy.

2. The named insured in a liability policy cannot sue and recover against the insurance company prior to determination of liability by judgment or by written agreement of the insured, the claimant and the company, where provisions of the policy require such method of determination of liability.

3. A general demurrer to a petition may be sustained only where it is so defective that, taking all facts as admitted, no cause of action is stated entitling plaintiff to any relief.

P. D. Erwin, Chandler, for plaintiff in error.

Draper Grigsby and James D. Foliart Oklahoma City, for defendant in error.

PER CURIAM.

This is an action brought by Luther Seaborn, plaintiff, against Preferred Accident Insurance Company of New York, defendant. Plaintiff owned and operated a produce and feed store and an electrical appliance store in Chandler, Oklahoma. Plaintiff procured a public liability policy from the defendant insurance company, which was in full force and effect on November 28, 1947, at which time plaintiff's wife, Athea Seaborn, slipped, fell, and sustained serious injury while visiting in plaintiff's store. Plaintiff sent his wife to a hospital and secured medical treatment and purchased drugs, both in Chandler and Oklahoma City. Surgery was performed. The total bills for such combined services was in the sum of $1,604.50, which plaintiff paid. Plaintiff, the named insured, sued the insurance company for reimbursement of the amount paid, attaching the policy as an exhibit. The trial court sustained the defendant's demurrer to plaintiff's petition from which the plaintiff appeals.

The issues to be decided were, first, does the policy indemnify against liability or loss; second, can the named assured sue and recover against the insurance company prior to a determination of the liability by judgment or by written agreement by the third party; and, third, does the emergency medical and surgical expense clause in the policy permit the named assured to pay for the medical, surgical and hospital expense for treatment and recover such loss from the insurance company?

1. Under the 'Insuring Agreements' of its contract, it is provided:

'1. To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages * * *.'

The procedure for determining the liability of the insured is specifically defined in paragraph ten under 'Conditions' as follows:

'10. Action Against Company--No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all of the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined, either by judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the company.'

This policy, from reading its provisions, is a liability policy. Liability of the insurer is dependent upon the liability of the insured. The liability of the insured, as provided by the policy, is to be finally determined by judgment against him or by written agreement of the insured, the claimant, and the Company. Insurance Law and Practice, Appleman, Vol. 7, Sec. 4261. Boling v. Ashbridge, 111 Okl. 66, 238 P. 421. Conley v. U. S. F. & G., 98 Mont. 31, 37 P.2d 565.

Plaintiff did not allege in his petition that liability of the insurer had accrued by reason of judgment or by written agreement as provided by the policy. He only alleged that he paid the bills. Therefore, on the face of the petition no cause of action was stated, except as to possible emergency treatments and expenses.

2. Title 15 O.S.1951 § 216, and sections 8 and...