Walz v. Agricultural Ins. Co. of Watertown, N.Y.

• Decision Date: 21 July 1922
• Docket Number: 6678.
• Citation: 282 F. 646
• Parties: WALZ et al. v. AGRICULTURAL INS. CO. OF WATERTOWN, N.Y.
• Court: U.S. District Court — Eastern District of Michigan

282 F. 646

WALZ et al. v. AGRICULTURAL INS. CO. OF WATERTOWN, N.Y.

No. 6678.

United States District Court, E.D. Michigan, Southern Division.

July 21, 1922

Cavanaugh & Burke, of Ann Arbor, Mich., and James O. Murfin, of Detroit, Mich., for plaintiffs.

Henry C. Walters, of Detroit, Mich., for defendant.

TUTTLE District Judge.

This is an action, commenced in one of the Michigan state courts and properly removed to this court, to recover upon a certain fire insurance policy. Both of the plaintiffs are citizens of Michigan and residents of this district, the defendant is a citizen and resident of the state of New York, and the value of the matter in controversy exceeds the jurisdictional amount. The cause is at issue upon declaration and plea of the general issue with notice of several special defenses.

The matter is now before the court upon a motion filed by plaintiffs, in which they 'move the court to forthwith enter a summary judgment' for an amount named therein with interest thereon, 'for the reason that the matters in controversy have already been litigated and adjudicated and the defendant is estopped by reason of said adjudication from a further denial of liability in said cause. ' It is alleged in the motion that the claimed right to summary judgment is based upon the files and records in this cause upon the files and records in 38 other causes pending in this court, which, it is averred, 'are all brought by the plaintiffs on the identical cause of action involved in this and other cases'; upon the files and records in 10 other cases alleged to have been recently adjudicated in the aforesaid state court; and upon an affidavit attached to said motion.

The affidavit just mentioned recites that the affiant is an insurance adjuster, and as such has been primarily in charge of efforts to adjust the fire losses involved in the present cause; that 'after the fire giving rise to this lawsuit over 50 of the said companies declined to appraise the loss, and over 50 lawsuits were started (in the said state court) against various corporations, arising out of the same cause of action'; that, wherever legally possible, such suits, including the present one, have been removed to this court; that 'the motions for bills of particulars and for more specific bills of particulars have been made in identical form in all of these cases; that all of the cases are defended by the same attorneys of record; that the defense in all of these cases, as shown by the plea and notice attached thereto is absolutely identical'; that 'deponent is informed and believes that the expense incident to the defense of these cases for witnesses, investigations, experts, and attorneys, is being borne by virtue of assessments made upon these various companies pro rata to the amount of insurance they have carried on the property in question'; that 'the plaintiffs have been informed from the time these suits were commenced of the condition above described concerning the handling of the defenses to the cases.' The foregoing are all of the allegations in said affidavit, which is the only affidavit or other showing presented in support of said motion.

The one counter affidavit filed on behalf of defendant is that of Henry C. Walters, the attorney of record for the defendant, who states therein that while he is such attorney of record he accepted retainers from, and entered the appearances of, all of the defendants in the causes referred to in the aforesaid motion, being actions severally brought against them by the plaintiffs herein, now pending in this court and in the state court already referred to, under an arrangement requiring him to, at all times, conduct defenses to the said actions, under the direction of a certain firm of Chicago attorneys with respect to 10 of said causes and under the direction of another Chicago attorney with respect to the remainder of said causes; that 'he has conducted the said defenses, in so far as the said actions have progressed, under the direction of the aforenamed Chicago counsel, respectively'; that he is informed and believes and therefore states that one of said counsel expected to attend and take part in the trials of the causes recently disposed of in the state court, but was prevented from so doing by court engagements and by illness; that motions for new trials (copies of both of which motions are attached to the affidavit) have been filed by the defendants in the two cases in the state court the judgments in which are claimed by the plaintiffs herein to establish the estoppel asserted against the defendant in the present action; that 'the said motions have both been filed by direction of the defendants, respectively, and are being prosecuted in good faith'; that 'if the said motions, or either of them, be denied, writs of error or a writ of error as the case may be, will be sued out by the said defendants, or defendant, in the Supreme Court of the state of Michigan and prosecuted to a conclusion'; and that 'it is the belief of deponent that, if new trials are not granted, the judgments entered in the said circuit court for the county of Washtenaw will be reversed on appeal to the said Supreme Court because of errors committed during the trials thereof.' These comprise all of the allegations in the said affidavit. The motions for new trials just referred to show that one of them is based upon 38, and the other upon 13, separate grounds, all of which appear to be of a substantial, rather than frivolous, character.

It is urged by plaintiffs that the defendant in the present case and (like the defendants in the other cases arising out of the one fire involved) is conclusively bound by the verdict and the judgment thereon in the first of such cases already tried (that of the present plaintiffs against the Peninsular Fire Insurance Company in the state court), because, as is alleged by plaintiffs, this defendant joined in the defense of that previous case, involving the same questions as are involved herein, and thereby became a privy to the defendant therein, and that therefore that judgment is res adjudicata in the present action, and the defendant here is estopped from again litigating the questions decided in that case. In support of this contention, plaintiffs rely on the decision of the Circuit Court of Appeals for this circuit in the case of Greenwich Insurance Co. v. N. & M. Friedman, 142 F. 944, 74 C.C.A. 114 (certiorari denied, 200 U.S. 621, 26 Sup.Ct. 758, 50...