Wirth v. Maryland Casualty Company

• Decision Date: 06 November 1973
• Docket Number: Civ. A. No. 7466-A.
• Citation: 368 F. Supp. 789
• Parties: Jeanette A. WIRTH and John P. Ryan, Plaintiffs, v. MARYLAND CASUALTY COMPANY, Defendant.
• Court: U.S. District Court — Western District of Kentucky

368 F. Supp. 789

Jeanette A. WIRTH and John P. Ryan, Plaintiffs, v. MARYLAND CASUALTY COMPANY, Defendant.

Civ. A. No. 7466-A.

United States District Court, W. D. Kentucky, Louisville Division.

November 6, 1973.

Philip L. Grauman, Louisville, Ky., for plaintiffs.

John P. Sandidge, Louisville, Ky., for defendant.

OPINION AND ORDER

ALLEN, District Judge.

This case comes before the Court on motions by both parties for summary judgment. The plaintiffs have moved for partial summary judgment only, on the issues of the defendant's liability on its insurance policy. The defendant has moved for summary judgment on the entire action.

The facts of this case are rather complex in detail, but they may be briefly summarized. In 1964, the plaintiff-Wirth sustained an eye injury when she was struck in the face by a firecracker while watching a parade. One of the floats in the parade was a locomotive-like vehicle owned by the 40 & 8 Club, and insured by the defendant, Maryland Casualty. The plaintiff-Wirth brought suit against 40 & 8 in Jefferson Circuit Court, Jefferson County, Kentucky, claiming that the firecracker was thrown from its vehicle. Maryland Casualty declined to defend 40 & 8 on the basis that its policy did not cover the firecracker accident. The plaintiff-Ryan represented 40 & 8 as attorney in the Jefferson Circuit Court action.

After a trial before a jury, judgment was entered in favor of the plaintiff-Wirth and against 40 & 8 in the amount of some $66,000.00. A subsequent suit was filed in Jefferson Circuit Court by the present plaintiffs against Maryland Casualty, claiming that it acted in bad faith when it refused to defend 40 & 8, and that it was liable on its insurance policy issued to 40 & 8. In October, 1972, that case was duly removed to this Court. The plaintiff-Wirth seeks to recover the totality of her judgment against 40 & 8 from Maryland Casualty, or at least the limits of its insurance policy, some $20,000.00. The plaintiff-Ryan seeks to recover his fee for the defence of the original suit, some $1,250.00.

This case presents the Court with two separate questions of law, the first regarding the sufficiency of notice given by 40 & 8 to Maryland Casualty, and the second concerning the interpretation of the language of the insurance policy between them. There are no genuine issues as to any material facts, and this case is appropriate for disposition in a summary proceeding.

The question of notice was not pressed by either party, and the Court agrees that it is not significant. The evidence shows that 40 & 8 gave notice to Maryland Casualty about 18 days after one of its members was served with a summons, a not unreasonable time under the circumstances, since the member served was not an officer of the club, nor was he authorized to receive process. There is no real contention that the 18 day period between service of process and notice to the insurer was insufficient notice such as would provide a defence under the policy.

There is also some question that two members of 40 & 8 learned about the accident some months before suit was filed. However, their testimony at the first trial shows that the extent of their knowledge was that a woman had been injured by a firecracker while watching the parade in which their vehicle participated. There is no evidence that they knew that their club was even allegedly involved. The Court does not believe that there was any reason for them to have notified Maryland Casualty on the basis of this rather sketchy, casual information.

The issue of interpreting the language of the insurance policy is more serious. In the first place, the policy in question was a standard automobile insurance policy, providing normal coverage. It is true that a higher than normal premium was charged, but this was based upon higher risk rather than upon expanded coverage. The parties clearly considered the use of the vehicle in parades, and the consequent greater risk of injury. However, there is no evidence that they contemplated covering anything other than the ordinary risks of driving an automobile. No specific reference to firecrackers or injuries to parade spectators or anything similar was made in the policy.

The important clause of the policy in question reads as follows:

I COVERAGE A-BODILY INJURY LIABILITY

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person caused by accident and arising out of the ownership maintenance or use of the automobile.

The operative words are ". . . arising out of the ownership, maintenance or use" of the 40 & 8 vehicle. If the policy language is found to include the firecracker accident, then the plaintiffs are entitled...