Travelers Indemnity Co. v. MICHIGAN MUTUAL LIABILITY CO.

• Decision Date: 01 September 1966
• Docket Number: Civ. No. 66-C-5-L.
• Citation: 259 F. Supp. 606
• Court: U.S. District Court — Western District of Virginia
• Parties: The TRAVELERS INDEMNITY COMPANY and the Fidelity and Casualty Company of New York, Plaintiffs, v. MICHIGAN MUTUAL LIABILITY COMPANY, Robert F. Lawhorne, and Clarence George, Jr., Defendants.

259 F. Supp. 606

The TRAVELERS INDEMNITY COMPANY and the Fidelity and Casualty Company of New York, Plaintiffs, v. MICHIGAN MUTUAL LIABILITY COMPANY, Robert F. Lawhorne, and Clarence George, Jr., Defendants.

Civ. No. 66-C-5-L.

United States District Court W. D. Virginia, Lynchburg Division.

September 1, 1966.

S. J. Thompson, Jr., Caskie, Frost, Davidson & Watts, Lynchburg, Va., for Travelers Indemnity Co.

Norman K. Moon, Williams, Robertson & Sackett, Lynchburg, Va., for Fidelity & Casualty Co. of New York.

R. W. Duling, Wicker, Baker & Goddin, Richmond, Va., for Michigan Mutual Liability Co.

Shuler A. Kizer, Kizer, Hess & Robey, Buena Vista, Va., for State Farm.

FINDINGS OF FACT AND CONCLUSIONS OF LAW.

BARKSDALE, District Judge.

This action came on for hearing on July 29, 1966, a stipulation of agreement of facts was filed, evidence was taken, oral argument of counsel was heard, and the court at that time not being advised of its judgment, took time to consider. Thereafter, requested finding of fact, conclusions of law, and briefs of counsel for all corporate parties hereto, have been filed and considered by the court.

The court being now fully advised of its judgment, doth hereby find the facts specially and states separately its conclusions of law thereon, pursuant to Rule 52(a), F.R.Civ.P., as follows:

FINDINGS OF FACT.

(1) The corporate parties herein, The Travelers Indemnity Company, a Connecticut corporation, The Fidelity and Casualty Company of New York, a New York corporation, and Michigan Mutual Liability Company, a Michigan corporation, are all insurers licensed to do business in Virginia.

(2) The Fidelity and Casualty Company of New York issued its policy of automobile liability insurance to defendant, Robert Franklin Lawhorne, covering a 1960 Mercury automobile, effective from May 2, 1964 to May 2, 1965. The Travelers Indemnity Company issued its policy of automobile liability insurance to defendant, Clarence George and wife, covering a 1958 Ford automobile, effective from April 12, 1964 to April 12, 1965. Both these policies were in force on October 29, 1964, and each afforded "Uninsured Motorist Coverage" as required by the Virginia Uninsured Motorist Law (Sec. 38.1-381, Code of Virginia).

(3) Michigan Mutual Liability Company issued and delivered to United Insurance Company of America of Chicago and others, as named insureds, a comprehensive automobile liability policy effective from January 1, 1964 to January 4, 1965. This policy is a fleet type policy insuring numerous motor vehicles owned or hired by United Insurance Company, for the use of, and used by, its agents in many states including Virginia. On the inception date of the policy, all additional automobiles acquired by United Insurance Company by lease or purchase and delivered to their agents for use, were automatically covered by the Michigan Mutual policy. By periodic audits, Michigan Mutual learned of additional automobiles acquired by United Insurance Company and delivered to its agents for use, and charged United an additional premium based upon the date of delivery of said automobiles. In such an audit, Michigan Mutual learned that a 1965 Ford automobile had been delivered to George at Buena Vista, Virginia, for his use as an agent for United in Virginia, on October 29, 1965. When the 1965 Ford was delivered to George, a book of instructions was also issued to him advising that the 1965 Ford was covered by Michigan Mutual's policy, and an identification card, bearing the signature of the President and Secretary of Michigan Mutual, and the policy number of the Michigan Mutual policy showing the expiration date of the policy, January 1, 1965, was also delivered to George. From the time of the delivery of this policy to George on October 29, 1964, this automobile was always garaged and used in Virginia.

(4) Michigan Mutual's comprehensive fleet type policy effective January 1, 1965, shows that, in addition to premiums charged for public liability coverage (bodily injury, property damage, etc.), it charged a premium of $819.00 for "Uninsured Motorist Coverage" with limits of 10,000/20,000 dollars. Michigan Mutual's "Automobile Audit Summary. Schedule of Equipment, Additions and Deletions" shows under "Additions", as of 10/29/64, a "1965 Ford, Buena Vista, Va., C. George", and shows that additional premiums were charged on this automobile for coverage of liability for bodily injury, property damages, etc., as well as "U. M.", with limits of "15/30/5", which are the required limits under the Virginia Uninsured Motorist law.

(5) On December 3, 1964, both defendants Lawhorne and George, were employees of United Insurance Company and lived and worked in the Buena Vista, Virginia, area. On that date, December 3, 1964, while Lawhorne was driving the 1965 Ford, with the permission of George who was riding with him, they were involved in an accident in Amherst County, Virginia, which they assert was caused by the negligence of an unidentified motorist. Both Lawhorne and George have filed...