Watson v. Employers Liability Assur. Corp.

• Decision Date: 15 September 1952
• Docket Number: Civ. A. No. 3700.
• Citation: 107 F. Supp. 494
• Parties: WATSON et ux. v. EMPLOYERS LIABILITY ASSUR. CORP., Limited.
• Court: U.S. District Court — Western District of Louisiana

107 F. Supp. 494

WATSON et ux. v. EMPLOYERS LIABILITY ASSUR. CORP., Limited.

Civ. A. No. 3700.

United States District Court W. D. Louisiana, Shreveport Division.

September 15, 1952.

Luther S. Montgomery and Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, La., for plaintiffs.

Benjamin C. King, Cook, Clark & Egan, Shreveport, La., for defendant.

DAWKINS, Chief Judge.

This suit was filed originally in the State Court for Bienville Parish against the insurer, Employers Liability Assurance Corporation, Ltd. (called Employers), alone of the Gillette Safety Razor Company (called the Razor Company), and was moved here by the defendant on the ground of diverse citizenship. The removed record was filed on April 16, 1952, and on the 18th of the same month, plaintiff filed an amended complaint adding the said insured as a party defendant. On April 28, Employers moved to dismiss the suit against the insurer on a plea of unconstitutionality of the direct action statute, No. 541 of the Louisiana Legislature of 1950, LSA-R.S. 22:655 and note. On the same day, it filed objections to the allowance of the amended complaint making the Razor Company a party defendant, and, in the alternative, "to drop it" from the case.

Thereafter, motions of the same general character, pleading insufficiency or improper service, etc., as in the Bish case, No. 3697 on the docket of this court, were filed by defendant. Plaintiffs then filed a second amended complaint making the Gillette Company a party defendant. They prayed that this second amendment, with the original and first amended complaint, be served upon both the Gillette Company and the Razor Company, and for judgment against them "as the Court may determine is the proper corporate entity". In a certificate at the foot of the second amended complaint, counsel for plaintiffs certified that "a copy of the above and foregoing supplemental and amended complaint has been served upon defendant, Gillette Safety Razor Company" and upon Employers "by mailing same to its attorneys of record * * * and that service is being made upon defendant, The Gillette Company, through the proper United States Marshal".

On June 25, counsel for defendant filed on behalf of Employers a similar motion objecting to the allowance of the second amended complaint, and, in the alternative, "to drop" the Gillette Company as defendant.

On April 11, 1952, by agreement of counsel, all pending motions submitted were taken under advisement on briefs.

The issues involved in the motion to dismiss insurer (Employers) on the ground of the unconstitutionality of Act 541 of 1950 are the same as in Bish v. Employers' Liability Assurance Corp., Ltd., D.C., 102 F. Supp. 343, which was sustained. Nothing in the arguments has caused this court to change its views, but they have been, in effect, sustained in Fisher v. Home Indemnity Company, 5 Cir., 198 F.2d 218, by the Court of Appeals for this Circuit in its decision handed down on June 30th last. The only difference is that the suit was filed here after the change made in the State law by the Acts 541 and 542 of 1950, LSA-R.S. 22:655, and note, 22:983, subd. E, applying to all policies of insurance whether...