Security Insurance Company of New Haven v. White

• Decision Date: 28 August 1956
• Docket Number: No. 5270.,5270.
• Parties: SECURITY INSURANCE COMPANY OF NEW HAVEN, Appellant, v. Gertrude June WHITE, Executrix of the Estate of Park Wyatt, deceased; Frances Roberson, Ferris Pittman, Joe Riley, Jeff L. Polk and Mack M. McGrew, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

236 F.2d 215 (1956)

SECURITY INSURANCE COMPANY OF NEW HAVEN, Appellant, v. Gertrude June WHITE, Executrix of the Estate of Park Wyatt, deceased; Frances Roberson, Ferris Pittman, Joe Riley, Jeff L. Polk and Mack M. McGrew, Appellees.

No. 5270.

United States Court of Appeals Tenth Circuit.

August 1, 1956.

Rehearing Denied August 28, 1956.

COPYRIGHT MATERIAL OMITTED

Edgar Fenton, Oklahoma City, Okl. (Elliott C. Fenton, Oklahoma City, Okl., on the brief), for appellant.

Charles E. Dierker and Gus Rinehart, Oklahoma City, Okl. (Butler, Rinehart & Morrison, Oklahoma City, Okl. on the brief), for appellee, Frances Roberson.

Kenneth Abernathy, Shawnee, Okl. (Abernathy & Abernathy, Shawnee, Okl., on the brief), for appellee, Gertrude June White, executrix.

Before BRATTON, Chief Judge, PHILLIPS, Circuit Judge, and ROGERS, District Judge.

BRATTON, Chief Judge.

This case concerns itself primarily with questions under a policy of automobile liability insurance. Park Wyatt and Gertrude J. Wyatt were husband and wife, and they resided at Shawnee, Oklahoma. He was engaged in the practice of law and she was a housewife. The Plymouth automobile which they used for business and pleasure was registered in her name. Sadie Sue Buchanan was an authorized policy writing agent at Shawnee for Security Insurance Company of New Haven. Acting through such agent, the insurance company issued its renewal policy of liability insurance covering the automobile. Gertrude J. Wyatt was the named insured, but the policy contained the recital "Occupation of the named Insured is Husband — Attorney at Law * * *." According to its terms the policy became effective June 2, 1954, and expired June 2, 1955; but it provided among other things "if however, the named Insured shall die * * * within the policy period, this policy, unless canceled, shall, if written notice be given to the Company within sixty days after the date of such death * * * cover (1) the named Insured's legal representative as the named insured, and (2) under Coverages A and B, subject otherwise to the provisions of Insuring Agreement III, any person having proper temporary custody of the automobile, as an Insured, and under Coverage C while the automobile is used by such person, until the appointment and qualification of such legal representative but in no event for a period of more than sixty days after the date of such death. * * *" In addition to the policy of automobile liability insurance, the agency at Shawnee also issued policies of insurance covering the dwelling in which Park Wyatt and Gertrude Wyatt resided and the household effects therein. Gertrude J. Wyatt was the named insured in each and all of such policies. Park Wyatt ordered the policy covering the automobile and the policies covering the dwelling and the contents thereof. The premiums thereon were charged to his account with the agency. He made payments from time to time on such account. The last five payments were made under dates of April 3, July 10, September 25, October 8, and October 14, respectively. Gertrude J. Wyatt died intestate on August 21, 1954. After her death, Park Wyatt continued to use the automobile. While he was driving the automobile on November 8, 1954, it was involved in a collision with an automobile being driven by Jeff L. Polk. James Roberson, Ferris Pittman, Joe Riley, and Mack M. McGrew were passengers in the automobile driven by Polk. Polk, Pittman, Riley, and McGrew sustained personal injuries, and James Roberson and Park Wyatt suffered fatal injuries. Gertrude June White was appointed executrix of the estate of Park Wyatt, deceased. Frances Roberson, surviving widow of James Roberson, deceased, Polk, Pittman, and Riley, filed separate actions against Gertrude June White, Executrix of the Estate of Park Wyatt, deceased, for damages arising out of such collision; and McGrew asserted liability. The executrix demanded that the insurance company defend such actions; that it pay within the limits of the policy any judgments rendered therein; and that it pay all costs and expenses incurred by her in connection with the investigation of such claims and the defense of such actions. The insurance company then instituted this action for a declaratory judgment that the policy had expired prior to the time of the fatal collision, and that the company was under no duty to defend the actions for damages or to pay any part of the judgments which might be rendered therein against the estate of Park Wyatt, deceased. Gertrude June White, executrix, Frances Roberson, surviving widow of James Roberson, deceased, Polk, Pittman, Riley, and McGrew were joined as parties defendant. The defendant Gertrude June White, executrix, pleaded among other things that plaintiff was promptly informed of the death of Gertrude J. Wyatt; that plaintiff was promptly notified of the death of Park Wyatt and immediately thereafter it conducted an investigation of the accident; that plaintiff was notified promptly of the institution of the several actions for damages; that plaintiff denied liability under the policy and refused to defend the actions upon the ground that the policy expired sixty days after the death of Gertrude J. Wyatt and was not in effect at the time of the accident; that plaintiff neglected and failed to tender return of any part of the unearned premium upon the policy; that by its acts and conduct, plaintiff waived any right to deny liability or to refuse to defend the suits or otherwise to comply with the policy; that such defendant was compelled to defend the actions for damages; and that the costs incurred and to be incurred by her in such defense were approximately $13,500. The other defendants severally pleaded that the policy was in effect at the time of the accident; and by cross complaint, they sought to recover upon it. The court entered judgment determining and adjudicating that the plaintiff was obligated to defend the estate of Park Wyatt, deceased, against the claims arising out of the accident; and further determining and adjudicating that the defendant Gertrude June White, executrix, recover from plaintiff $10,504.02, being the amount of attorneys fees and costs which she had expended or had become obligated to expend in connection with the investigation of the facts relating to the accident, in defending the several suits for damages, and in defending this action for a declaratory judgment. Plaintiff appealed.

The judgment of the trial court was predicated in part upon the ground that appellant was estopped to assert that the policy was not in force and effect at the time of the accident. Appellant challenges that ground as sustainable basis for the judgment. The tenor of the argument is that the policy had by its own terms expired sixty days after the death of the named insured and prior to the date of the accident, and that a contract of insurance cannot be created by estoppel. A contract of automobile liability insurance cannot be created by estoppel. But that principle has no application here. The general rule having pertinent application in this case is that if an insurer with knowledge of facts which would bar liability under an issued and outstanding policy continues to recognize liability by treating the policy as being in force and effect, it waives the bar and becomes estopped to plead such facts to escape liability. Sovereign Camp W. O. W. v. Pettigrew, 98 Okl. 138, 224 P. 545; Commercial Standard Insurance Co. v. Remer, 10 Cir., 119 F.2d 66; United...