Wommack v. United States Fire Insurance Company, F-70-C-24.
Citation | 323 F. Supp. 981 |
Decision Date | 08 March 1971 |
Docket Number | No. F-70-C-24.,F-70-C-24. |
Parties | Richard WOMMACK, Mary Lou Wommack, and Michael Wommack, Plaintiffs, v. UNITED STATES FIRE INSURANCE COMPANY, Incorporated, Defendants. |
Court | U.S. District Court — Western District of Arkansas |
Putman, Davis & Bassett, Fayetteville, Ark., for plaintiffs.
Barber, Henry, Thurman, McCaskill & Amsler, Little Rock, Ark., for defendants.
This is a declaratory judgment action commenced September 8, 1970, pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, by Richard L. Wommack, Mary Lou Wommack and Michael Wommack, seeking a declaration that a Professional Comprehensive Personal Catastrophe Liability Policy issued by defendant, United States Fire Insurance Company, Inc., provides coverage to the plaintiff Richard L. Wommack to pay such part of any judgment rendered against plaintiffs in pending personal injury actions as exceeds the coverage provided by any other available insurance.
On September 25, 1970, the defendant filed its answer admitting issuance of the policy in question, but denying any obligation to pay under the terms of the policy until the underlying limits set forth in the policy have been paid. On November 23, 1970, with permission of the court, the defendant filed an amendment to its answer in which it alleged that plaintiff Richard Wommack made a material misrepresentation in his application in failing to note ownership of the 1965 Mustang involved in the accident which brought about the present action, and that defendant was not liable because of such misrepresentation.
The court has jurisdiction because of diversity of citizenship and the amount in controversy, 28 U.S.C. § 1332. The plaintiffs are citizens and residents of Arkansas. The defendant is a corporation chartered under the laws of a state other than Arkansas and has its principal place of business in the State of New York.
On August 11, 1969, the plaintiff Richard L. Wommack, an attorney, submitted an application for a "Million Dollar Professional Policy," in which he stated his name, age, address, and "limits desired, one million dollars"; that he was a practicing attorney in Fayetteville, Arkansas. As to the number, type and garage locations of automobiles owned or hired by him and his wife, he listed the following: one Chevrolet station wagon and one Chevelle sedan garaged at residence. The operators under 25 years of age were ages 19 and 16. He also stated that a liability collision policy was cancelled by State Farm for one chargeable and two nonchargeable accidents by son, and that he had no losses in amounts greater than $10,000 during the last five years.
On August 15, the defendant, United States Fire Insurance Company, Inc., issued its policy numbered XCL 55 73 59 to Richard L. Wommack at Fayetteville, Arkansas, to be effective from August 11, 1969, until August 11, 1972.
The pertinent sections of the insurance contract provide:
Plaintiffs have filed a motion for summary judgment supported by the affidavit of Richard L. Wommack, and defendant has filed a cross motion under Rule 56, Fed.R.Civ.P.
An examination of the pleadings and exhibits thereto, together with the affidavit, establishes that there is no genuine issue as to any material fact. The parties admit that there is no genuine issue of any material fact, and thus the case is one for disposition on the motions now before the court.
On April 17, 1970, the plaintiff Michael L. Wommack, son of the other plaintiffs, was involved in a multi-car accident near Springdale, Arkansas. Michael L. Wommack was under the age of eighteen at the time of the accident. On the 28th of April, 1970, the plaintiffs were named defendants in three actions arising out of the accident heretofore mentioned. The cases are Nos. F-70-C-6, F-70-C-7 and F-70-C-8, Fayetteville Division. The plaintiffs herein alleged the negligence of Michael L. Womack and the liability of Richard L. Wommack and Mary Lou Wommack by virtue of statutorily imputed negligence under Ark.Stat.Ann. § 75-315 (1969 Supp.).1
In the affidavit of plaintiff Richard L. Wommack, attached as Exhibit A to plaintiffs' motion for summary judgment, Mr. Wommack stated:
(a) On April 25, 1969, the Northwestern National Casualty Company issued its policy naming him as the insured and designating a 1969 Chevrolet 8-cylinder automobile as the owned automobile. The bodily injury liability limits in that policy are $100,000 for each person and $300,000 for each occurrence. The policy was in force and effect at the time of the accident.
(b) Also, there was a Northwestern National Casualty Company automobile liability policy in effect at the time of the accident which covered a 1970 Chevrolet Monte Carlo, used chiefly by his wife, and a 1963 Chevrolet convertible used chiefly by his son Michael. The policy limits were $100,000/$300,000 for both cars.
(c) The three cars above mentioned were the only ones operated out of his household.
(d) Also, on April 25, 1969, the Northwestern National Casualty Company issued its policy DA 425-Y-10828S referred to as the small policy, in which he was named insured and designated a 1965 Ford Mustang 2-door hardtop as the insured automobile. The bodily injury liability limits on this policy were $10,000 for each person and $20,000 for each accident. This automobile was the one which was involved in the accident of April 18, 1970, for which he and the other plaintiffs have been sued....
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