and tenants' policy). Because a possibility exists that the defendant will be legally obligated to reimburse the plaintiff for a judgment rendered against him in the pending personal injury action, the defendant must give the plaintiff a complete and unqualified defense in that action.
This disposition of the case on the issue of Aetna's duty to defend leaves open for decision at the most appropriate time, the conclusion of the trial in the pending personal injury action, the question of whether the defendant is legally obligated to reimburse the plaintiff for any judgment which may be rendered against him therein. Should he prevail in that action, the issue of whether Aetna is required to reimburse him will of course become moot. On the other hand, should he be unsuccessful, the Court and jury will be able to determine, on the basis of all the evidence adduced at a full trial, exactly how the accident occurred and whether Aetna, U.S.F. & G., or both are obligated to pay the judgment.
The plaintiff has asked for a judgment awarding him the costs of this action, including reasonable attorneys' fees. This request was not mentioned during the trial, and no argument relating to it - either oral or in briefs - has been made at any time. The Court is unable on its own initiative to find any justification either in the insurance policy in question or in the general law for departing in this case from the ordinary rule which disallows awards of attorneys' fees and therefore will not award them here.
II. The Third-Party Complaint
The third-party defendant, U.S.F. & G., moved prior to trial to dismiss the third-party complaint against it, claiming that it was not a party who, in the language of Federal Rule of Civil Procedure 14(a), "is or may be liable to * * * [the defendant] for all or part of the plaintiff's claim against him." That motion has been renewed at this time.
No argument to assist the Court has been offered by the defendant, third-party plaintiff, either during the trial or in its briefs. The Court has, however, on its own initiative carefully considered the third-party complaint, despite its doubts as to whether the defendant is seriously concerned with the matter. No contract exists between the defendant and U.S.F. & G. upon which liability for the plaintiff's claims may be based. Nor does any kind of tort liability exist between the two insurers. Instead, as stated by Aetna in its "Memorandum of Points and Authorities in Opposition to Motion to Dismiss," the only possible validation for the third-party claim lies in the fact that it "is a derivative one and under the subrogation clause of the policy issued to the plaintiff, this defendant is entitled to claim from the third-party defendant all or part of the plaintiff's claims against it."
In the light of the full defense which the third-party defendant is giving the plaintiff in the pending personal injury action and the absence at this point of any indication that it will not continue to do so or that it will not pay any judgment rendered against the plaintiff which it is legally obligated to pay, the third-party complaint is completely premature and conjectural. The complaint will therefore be dismissed, without prejudice, of course, to the issues raised in it being reopened at a later time.
Let this memorandum be considered the Court's findings of fact and conclusions of law.
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