Viani v. Aetna Ins. Co.

• Decision Date: 03 August 1972
• Docket Number: No. 10714,10714
• Citation: 501 P.2d 706,95 Idaho 22
• Parties: Lawrence G. VIANI, Plaintiff-Respondent, v. AETNA INSURANCE COMPANY, a corporation, et al., Defendants-Appellants.
• Court: Idaho Supreme Court

Page 706

501 P.2d 706

95 Idaho 22

Lawrence G. VIANI, Plaintiff-Respondent, v. AETNA INSURANCE COMPANY, a corporation, et al., Defendants-Appellants.

No. 10714.

Supreme Court of Idaho.

Aug. 3, 1972.

Concurring Opinion Oct. 6, 1972.

Moffatt, Thomas, Barrett & Blanton, Boise, for Aetna Ins. Co.

Elam, Burke, Jeppesen, Evans & Boyd, Boise, for Allstate Ins. Co.

Clemons, Skiles & Green, Boise, for American Casualty Co. of Reading, Pa.

Cosho, Humphrey & Southcombe, Boise, for plaintiff-respondent.

McFADDEN, Justice.

This case arises from a gunshot wound suffered by plaintiff-respondent Lawrence G. Viani due to the negligence of Andrew Bowles, the owner of the pistol. In an earlier, separate action Viani recovered a $14,622 judgment on a jury verdict returned against Bowles. That judgment has become final. Vaini thereafter brought this action against defendants-appellants Aetna Insurance Company (hereinafter 'Aetna'), Allstate Insurance Company (hereinafter 'Allstate'), and American Casualty Company of Reading, Pennsylvania (hereinafter 'American Casualty'), alleging that each was the insurer of Bowles and liable to pay the judgment. Among other points decided by the district court as part of its judgment, the court held each appellant was an insurer of Bowles and was required to pay one-third of of the $14,622 judgment and one-third of the costs of defense in that litigation. The three insurance companies appealed, each maintaining a distinct and independent position. Only Aetna has conceded liability, but due to the existence of 'other' insurance contends its share of the Viani v. Bowles judgment is too great. Bowles is a professional architect and had been retained by one Bonny to inspect and oversee the construction by a general contractor of his mountain home located in Pioneerville. Viani, a carpenter, had earlier done some independent contracting work on this project; apparently he was not an employee of Bowles for that work. On August 12, 1966, Bowles asked Viani to accompany him to the cabin site to aid him in finishing a few items which the general contractor had left unfinished. Viani agreed and the two left that day in Viani's pickup truck which was used to haul tools, building materials, and their camping gear. The next day, August 13, the men completed their work and returned to Boise, planning to leave shortly thereafter to inspect some mining property.

Upon returning to Boise, Viani drove to Bowles' home and parked his pickup in the driveway. Viani proceeded to unload his tools as well as Bowles' comping gear. In the process he tossed Bowles' bedroll from the truck bed onto the driveway. Unknown to Viani, the bedroll contained a loaded pistol which discharged when the bedroll hit the ground, the bullet wounding Viani.

There are three (3) separate policies of liability insurance which arguably provide coverage for the accident. Bowles had a 'homeowner's policy' issued by Aetna covering his Boise residence with a policy limit of $50,000. Bowles also owned a 'comprehensive general-automobile liability' policy issued by American Casualty, the limits of which were $100,000. The owned a 'Crusader' automobile liability policy issued by Allstate, specifically covering his pickup with him as the 'named insured,' the limits being $10,000.

Viani instituted an action against Bowles for negligently causing his wounding seeking $48,000 in damages. Bowles' insurer, Aetna, tendered the defense of the action to Allstate as Bowles was an 'omnibus insured' under Allstate's policy. Allstate accepted and defended Bowles at the trial where the jury returned a $14,622 verdict. Viani's attempt at executing his judgment against Bowles proved fruitless and he thereupon instituted this action against these insurance companies to satisfy the judgment.

EFFECT OF THE PARTIAL SUMMARY JUDGMENT

Before discussing the separate issues presented by the appellants for resolution, a procedural question raised at oral argument must be answered. Viani's amended complaint ¹ was duly answered by each of the insurers. Additionally, Allstate cross-complained against Aetna for its costs of investigation and defense of Bowles. Thereafter various affidavits ² and a deposition, plus exhibits consisting of the three policies, related correspondence, along with the pleadings and jury instructions of the Viani v. Bowles trial were submitted. The case was discussed at a pre-trial conference where the parties agreed that certain of the issues could be treated as having been submitted to the court on motions for summary judgment. They also stipulated that the portion of Viani's trial memorandum or brief describing Viani's agreement with Bowles could be considered by the court as the facts related to the alleged employer-employee relationship (discussed infra).

The district court entered an order for partial summary judgment which rejected certain defenses that the insurance companies raised against Viani, ³ and essentially decided that each insurance company was separately liable to Viani on its policy. The partial summary judgment order left for resolution at trial the issue of the conflicting 'other insurance' clauses contained in each policy, the question of which company was to pay for the defense of Bowles, and the apportioning of payment of Viani's judgment and attorney fees among the insurers. As it turned out the actual trial of these remaining issues was abbreviated; the court received evidence limited to attorney fees of Viani and the insurers.

The question has been raised whether those issues resolved by the order for partial summary judgment are subject to review here in that none of the appellants appealed from that order but rather appealed only from the final judgment.

The partial summary judgment order entered by the district court is in effect a pre-trial order resolving, for purposes of the case, those questions about which there was no factual dispute and noting what specific issues remained for trial. This order remained subject to subsequent revision by the court and thus is an interlocutory order. I.R.C.P. 56(c) provides that '(a) summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.'

In the present action there remained after the entry of the partial summary judgment the question of the amount of attorney fees due plaintiff as well as the question whether each of the three insurers would be liable to some extent in light of the 'other insurance' clauses. Thus from the standpoint of plaintiff all his requested relief had not been disposed of by the court and the summary judgment was not a final judgment. I.R.C.P. 54(b); Gerry v. Johnston, 85 Idaho 226, 378 P.2d 198 (1963); Clear v. Marvin, 83 Idaho 399, 363 P.2d 355 (1961); 6 Moore's Fed.Practice §§ 56.20-56.21.

I.R.C.P. 54(b) is also in another way controlling, as there was a cross-claim by Allstate against Aetna. In such a case, in order to make a particular decision a final judgment, the district court must expressly determine there is no just reason for delay and expressly direct entry of judgment. Absent such determination, as is the case here, the order for partial summary judgment 'shall not terminate the action as to any of the claims.'

The relationship of I.R.C.P. 54(a) and I.C. §§ 13-201 and 13-219 also must be noted. Rule 54(a) defines judgment as including a decree and any order from which an appeal lies; what is appealable is governed specifically by statute. I.C. § 13-201 defines a judgment as appealable if it is a 'final judgment in an action or special proceeding commenced in a district court.' A judgment in this sense means a 'final determination of the rights of the parties.' I.C.R. § 10-701. I.C. § 13-219 makes clear what this Court may review by stating that appealable decisions and orders from which an appeal is not taken cannot be reviewed. As the partial summary judgment was not appealable it constitutes an 'intermediate order or decision' affecting the final judgment and may therefore be reviewed under I.C. § 13-219. See Maple v. Williams, 15 Idaho 642, 98 P. 848 (1908).

NOTICE OF OCCURRENCE AND SUIT TO AMERICAN CASUALTY

American Casualty has assigned as error both the conclusion that it received sufficient notice of the injury to Viani caused by its insured, Bowles, and the conclusion that any defects in the notice to American Casualty did not result in prejudice to its position. The heart of its appeal is that the undisputed facts show, as a matter of law, prejudice to its position sufficient to constitute a complete defense to its contractual duty to pay the tort liability of Bowles (presuming its other defenses fail.)

The facts on this issue are not in dispute. After the accident Bowles notified the insurance agent in Boise who had sold him both the Aetna and the American Casualty policies that the accidental shooting had occurred. (It is not apparent from the record whether the notification was written.) The agent, Mr. Summers, stated in his affidavit that his firm did not pass along notice of the accident to anyone else connected with American Casualty., Apparently the subject of the accident may have been discussed by an 'adjuster' employed by Aetna and a Mr. Casey, a claims agent in Boise employed by American Casualty. The adjuster, in his affidavit, asserts that in conversation Mr. Casey stated he or American Casualty was not interested in the matter.

Whether or not American Casualty received notice of the accident, it is unrefuted that it did not received notice of the Viani v. Bowles action, nor were copies of the summons and complaint sent to it. Nothing in the record suggests a local agent for American Casualty was provided with suit papers. No demand was ever made on American Casualty to defend Bowles either by Bowles himself or by the two other insurance companies. The judgment against Bowles became final before...