Travelers Insurance Company v. Sindle, Civ. A. No. 1539.
Decision Date | 23 August 1960 |
Docket Number | Civ. A. No. 1539. |
Citation | 186 F. Supp. 8 |
Parties | TRAVELERS INSURANCE COMPANY, a corporation, Plaintiff, v. Mrs. Thelma S. SINDLE, Mrs. Thelma S. Sindle, Administratrix of the estate of Argus A. Sindle, Deceased, Betty Jo Sindle, Shelba Jean Sindle, Stasi Motor Freight, Inc., Richard F. Pitts, and M. E. Daniels, d/b/a Rogers Oil Company, Defendants. |
Court | U.S. District Court — Western District of Arkansas |
Shaw, Jones & Shaw, Fort Smith, Ark., for plaintiff.
Warner, Warner & Ragon, Fort Smith, Ark., Joyce & Wing, Fayetteville, Ark., Ralph W. Robinson, Van Buren, Ark., Hardin, Barton & Hardin, Fort Smith, Ark., for defendants.
There is before the court the motion of plaintiff for summary judgment pursuant to Rule 56, Fed.R.Civ.P., 28 U.S. C.A.
Complete diversity of citizenship between the plaintiff and the defendants exists now and has at all times material herein. The amount involved exceeds $10,000, exclusive of interest and costs.
In considering the motion, it is necessary for the court to determine from the pleadings, depositions, admissions on file, the affidavits and ore tenus testimony and exhibits, whether there is a genuine issue as to any material fact. If there is no genuine issue as to any controlling material fact and the moving party is entitled to a judgment as a matter of law, the motion should be granted, but if there appears to be any genuine issue as to a material fact, the motion must be denied.
In Rubenstein v. Dr. Pepper Co., 8 Cir., 1955, 228 F.2d 528, at page 533, the court said:
The complaint of plaintiff for a declaratory judgment of nonliability on the claim of Mrs. Thelma S. Sindle, individually, and as administratrix of the estate of Argus A. Sindle, deceased, on behalf of the estate and next of kin, was filed on June 20, 1960. On July 11, 1960, a pretrial conference was held, which was attended by the attorneys for all parties except the attorney for Mrs. Sindle, individually and as administratrix. At that time the defendant, Stasi Motor Freight, Inc. (hereinafter referred to as Stasi), was allowed until July 22, 1960, to file its response to the motion for summary judgment. Stasi had prior to that time and on June 28, 1960, filed answer to the complaint. At his request the defendant, M. E. Daniels, d/b/a Rogers Oil Company (hereinafter referred to as Daniels), was allowed until July 27, 1960, in which to answer the complaint.
Prior to the first pretrial conference on July 11, 1950, the defendants, Richard F. Pitts and Daniels, had filed their motion for summary judgment on the pleadings and exhibits, and included therein a motion to dismiss the complaint of the plaintiff.
The motion of plaintiff for summary judgment was likewise filed on July 8, 1960.
On July 27 the defendant Stasi filed its response to the motion for summary judgment, and on the same date the defendants Pitts and Daniels filed their answer to the complaint of the plaintiff. No response other than the answer to the complaint was filed to the motion of plaintiff by defendants Pitts and Daniels.
With the record in that condition, the court deemed it advisable to request all the attorneys to complete the record in order that the motion of plaintiff for summary judgment might be determined. Accordingly, on August 2, 1960, the court addressed a letter1 to all the attorneys.
On the same date the court, in an effort to aid the parties as to procedure, also called the attention of all the attorneys to Marion County Co-Op Ass'n v. Carnation Co., D.C.W.D.Ark.1953, 114 F.Supp. 58, and the decision of the Court of Appeals for the Eighth Circuit appearing in 8 Cir., 1954, 214 F.2d 557, affirming 114 F.Supp. 58.
In accordance with the suggestion of the court contained in the letter appearing in the footnote, another pretrial conference was held on August 15, 1960, at which time Daniels introduced the original policy as Exhibit 1; a letter dated May 29, 1959, addressed to him by Walker Brothers, Inc., general insurance underwriters, to which was attached certain port of entry cards for each of the units insured under the policy (Exhibit 2); and a memorandum addressed to Daniels by an employee of Walker Brothers, Inc., containing a list of the equipment for insertion in the policy (Exhibit 3).
In paragraphs V, VI and VII of the complaint the plaintiff alleged:
It was further alleged that defendant, Mrs. Thelma S. Sindle, individually and as administratrix of the estate of Argus A. Sindle, deceased, for the benefit of herself, the estate of the deceased and the next of kin, filed her complaint in the Crawford County Circuit Court against Stasi, Daniels and Richard F. Pitts, seeking damages on account of the injuries and death of the said Argus A. Sindle. Attached to the complaint is a copy of the various pleadings filed by the parties in the Circuit Court. It does not appear necessary to refer further to the pleadings in the State Circuit Court as to the issues between the various parties made by the pleadings in the case.
That upon the filing of the said complaint in the Circuit Court, the defendants Daniels, as the named insured, and Pitts, as an alleged agent of Daniels, tendered liability thereunder, if any, to the plaintiff by virtue of said policy hereinbefore referred to; that the plaintiff is under no duty to defend and is under no liability for any cause of action as set out in the suit in the Circuit Court or on account of the accident; that all of the acts of the parties involved in said accident and said accident were wholly without the terms of said liability insurance policy, and all liability under and by virtue of same are excluded from the policy; that upon the tender of the defense of said case by the defendants Daniels and Pitts, the plaintiff addressed by registered mail its letter reserving all its rights under its policy and that such action on the part of the plaintiff was effective to reserve to it all its rights as expressed in said policy.
In the answer filed by Stasi, the defendant admitted that prior to July 8, 1959, the date of the accident, Daniels...
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