Nationwide Mutual Insurance v. Fidelity & Casualty Co.
Nationwide Mutual Insurance v. Fidelity & Casualty Co.
Opinion of the Court
This is a declaratory judgment case. The plaintiff, Nationwide Mutual Insurance Company (Nationwide), brought a declaratory judgment action against the defendant insurance companies
There are three insurance companies involved. Nationwide insured Snyder. Fidelity & Casualty Company of New York insured Sechan. United States Fidelity and Guaranty Company insured Ralph Myers Construction Company (Myers). Snyder is a trucker. Myers was building a road up in Butler County and Sechan was doing hauling of material for Myers.
On the day of the accident in question Snyder sent some of his trucks to the Myers job and they were put to work in the road building project of Myers. A Snyder truck driven by a man named Plunkard collided with a passenger car driven by a man named Cushey. Cushey was hurt. An occupant of the car named Blakely was killed and another passenger named Neupert
Blakely’s administrator sued, in the Common Pleas Court of Butler County, Cushey, Plunkard, Snyder, Sechan and Myers. Cushey, Plunkard and Snyder settled for $5,000. Who actually paid the money we do not know.
Cushey sued Plunkard, Snyder, Sechan and Myers in Butler County, Pennsylvania. A compulsory non suit was granted, and the case is presently before that court on a motion to remove the non suit. Neupert is also suing the same defendants in the same court. And Neupert' is also adding Cushey as a defendant.
The reason for this controversy among the insurance companies is that each, claims that the policy issued by it has an. excess insurance clause. Not unnaturally, each company insists that it is only liable under the excess clause in the policy it has issued. And each wants someone else to take the main burden.
The trial judge was in error in-giving directions to Nationwide to defend these suits on behalf of the other insurance companies. But the trial judge-was right in refusing to settle all the relations of the insurers among themselves. This is not a proper case for a declaratory judgment at this stage.
The judgment will be reversed and the case remanded to the trial court with the directions to dismiss.
. The jurisdiction of this action is founded on diversity of citizenship. The complaint was filed on December 3, 1957. section 1332 of 28 U.S.C. prior to the 1958 amendment applies.
. In the complaint in this action the name is spelled “Neubert” as it is in the appellant’s brief. However, in the Agreed Statement of Facts and the opinion of the lower court, it is spelled “Neupert”.
. The record is in some state of confusion as to who paid for the settlement. The complaint in this action alleges, and the Agreed Statement of Facts provides, that Cushey paid $2,500, and Plunkard and Snyder paid $2,500 between them. Nationwide’s Motion for Advancement on the Calendar and Speedy Hearing states that the claim was “settled by one of the insurance companies.” Which one is not specified.
. See American Fidelity & Casually Co., Inc. v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Ins. Co., 5 Cir., 1960, 280 F.2d 453.
. “It [the controversy! must be a real andi substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Ins. Co. of Hartford, Conn, v. Haworth, 1937, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617.
. The number of possible verdicts which could be reached in the pending suit brought by Neupert is huge. The jury-
Reference
- Full Case Name
- NATIONWIDE MUTUAL INSURANCE COMPANY, a corporation v. FIDELITY & CASUALTY COMPANY OF NEW YORK, a corporation, and United States Fidelity and Guaranty Company, a corporation
- Cited By
- 2 cases
- Status
- Published