Sharp v. Bannon
| Decision Date | 29 May 1953 |
| Citation | 258 S.W.2d 713 |
| Parties | SHARP et al. v. BANNON et al. |
| Court | United States State Supreme Court — District of Kentucky |
Buckley, Stilz & Rouse, Lexington, Boehl, Stopher, Kilgariff, Graves & Deindoerfer, Louisville, for appellants.
Stoll, Keenon & Park, Lexington, for appellees.
In this case a tort-feasor, without notice of an insurance company's subrogation claim, settled a suit brought by the insured and an agreed order 'now dismissed settled' was filed in court. The principal question presented on this appeal is whether this order 'dismissed settled' is a bar to a subsequent action by the insurance company, subrogee, for the same damage.
In behalf of the insured, Charles E. Bannon, the Detroit Inter-Insurance Exchange, on December 9, 1947, paid out under a $25 deductible collision policy, the sum of $951.48 to repair damage to his automobile, after he had been involved in a collision in Madison County on May 23, 1947, with a truck owned by Chester Sharp and Ed Staton, doing business as the S & S Coal Company.
On August 16, 1947, the insured, through his attorney, filed suit in the Madison Circuit Court, in which he sought to recover $600 property damage to his automobile, for wrecker expense and for the loss of use of his vehicle. In all, he prayed for $915. The Coal Company counterclaimed. Thereafter the Coal Company offered to settle the case for $350, and the insured accepted. On January 20, 1948, an agreed order was entered in the Madison Circuit Court dismissing the suit as settled. On January 30, 1948, the Coal Company tendered its check to the insured's attorney, but requested that it not be cashed until the insured had signed a release. On March 10, 1948, the insurer wrote the insured's attorney concerning handling its claim against the Coal Company, which was the first information he had of the subrogation claim. The insured, after receiving the release form sent to him by his attorney, wrote his attorney that they must have had a misunderstanding as to the suit, that it had not been his intention to sue for property damage covered by insurance, and that he could not sign the release because it would prejudice the rights of the insurer.
The insured's attorney informed the Coal Company's attorney of the situation, and the latter told him to go ahead and cash the check because the court order dismissing the suit as settled was a sufficient release. Whether the insured's attorney informed the appellants of the subrogee's claim at this time is not certain, but he probably did. However, this occurred after the judgment was entered in the Madison Circuit Court, but before the check was cashed. The insured's attorney cashed the check and after taking his fee sent the balance to the insured who accepted it.
Approximately six months later, the insurer, as subrogee, instituted the present action against the Coal Company in the Fayette Circuit Court for $951.48, the sum it had indemnified the insured. The Coal Company pleaded, among other things, the settlement agreement with the insured as a defense. The cause was submitted to the court without a jury after the introduction of all the evidence, and judgment was rendered in favor of the insurer for the sum prayed for in its petition. The insurer pleaded and contends, under the authority of Travelers Indemnity Company v. Moore, 304 Ky. 456, 201 S.W.2d 7, that the settlement agreement of the insured and the tort feasor is not res judicata of the present action. In that case we recognized an exception to the rule against splitting a cause of action, and held that an action by the insured against a tort-feasor for personal injuries would not bar the insurer as subrogee from suing for property damage. However, in the case at bar both the insured and the insurer sued the tort-feasor in separate actions for the same property damage. The principles governing such situations are stated in 46 C.J.S., Insurance, Sec. 1209(b), page 155:
'Where the wrongdoer chargeable with notice...
To continue reading
Request your trial
-
Home Ins. Co. v. Hertz Corp.
...A.2d 678; Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Home Insurance Co. (1915), 183 Ind. 355, 108 N.E. 525; Sharp v. Bannon (Ky.App.1953), 258 S.W.2d 713; Pennsylvania Fire Insurance Co. v. Harrison (La.App.1957), 94 So.2d 92; Cleaveland v. Chesapeake & Potomac Telephone Co. (19......
-
Leader Nat. Ins. Co. v. Torres
...Ins. Co. v. Speiker, 97 Ind.App. 533, 187 N.E. 355 (1933); New York Ins. Co. v. Tice, 159 Kan. 176, 152 P.2d 836 (1944); Sharp v. Bannon, 258 S.W.2d 713 (Ky.1953); Pennsylvania Fire Ins. Co. v. Harrison, 94 So.2d 92 (La.Ct.App.1957); Cleaveland v. Chesapeake & Potomac Tel. Co. 225 Md. 47, 1......
-
U.S. Fidelity and Guar. Co. v. Preston
...against him. A subrogee stands in the shoes of its subrogor and has no greater cause of action than would the subrogor. Sharp v. Bannon, Ky., 258 S.W.2d 713 (1953). Preston no longer has a cause of action against the uninsured tortfeasor; ergo, USF & G can acquire no subrogation rights agai......
-
Calvert Fire Ins. Co. v. James
...of the insurer's payment, made settlement with the insured, Kidd v. Hillman, 1936, 14 Cal.App.2d 507, 58 P.2d 662; Sharp v. Bannon, Ky. 1953, 258 S.W.2d 713; or if the insured has obtained judgment, in invitum, against the tort-feasor, Ocean Accident & Guarantee Corp. v. Hooker Electro-Chem......