[DOWNLOAD] "Maryland Cas. Co. v. Employers Mut. Liability Ins. Co." by United States Court Of Appeals Second Circuit ~ Book PDF Kindle ePub Free

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• Title: Maryland Cas. Co. v. Employers Mut. Liability Ins. Co.
• Author : United States Court Of Appeals Second Circuit
• Release Date : January 17, 1953
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 68 KB

Description

This is an appeal by the defendant from a judgment against it upon a policy of liability insurance issued to the "Smedley Company of Hartford, Connecticut." The action was tried to Smith, J., without a jury upon the pleadings and the following stipulated facts. The plaintiff had itself insured not only the Smedley Company in the sum of $100,000 against any liability for personal injuries caused by its motor trucks; but in the same policy had also insured "any person while using an owned automobile * * * provided the actual use of the automobile is by the named insured or with his permission." The defendant on its part had insured the Smedley Company alone in the sum of $50,000 against the same liability. Each policy contained the customary subrogation clause: i.e., "In the event of any payment under this policy, the company shall be subrogated to all the insureds rights of recovery therefor against any person"; and each also contained the customary "other insurance" clause: i.e., "if the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss." The Smedley Company owned a truck driven by one of its drivers, Amendola, which struck and killed a man called Duchene, whose administrator sued both the Smedley Company and Amendola in the Connecticut Superior Court, claiming $100,000 damages. The plaintiff assumed the defence of this action; but the defendant refused a demand of the Smedley Company to assist. The plaintiff settled the action for $7,500, to recover one third of which amount - $2,500 - it brought this action under the two clauses quoted above; and it is common ground that the settlement was reasonable. In addition, the plaintiff demanded judgment for one half the cost of defending the action, relying for this upon the following clause in the defendants policy: i.e., "the company shall (a) defend any suit against the insured," and "(c) pay all expenses incurred by the company." The judge gave judgment for the plaintiff, among other reasons because he thought that the defendant had forfeited any right of subrogation against the plaintiff by refusing to assist it in the defence of the action, brought by Duchenes administrator. 112 F.Supp. 272.

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