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WALKER v. AMERICAN ICE CO.

June 15, 1966

Harvey P. WALKER, Plaintiff,
v.
AMERICAN ICE COMPANY and Aetna Casualty & Surety Company, a corporation, Defendants



The opinion of the court was delivered by: KEECH

 KEECH, District Judge.

 This action is before the court on an attachment issued by the American Ice Company, as garnishor, against National Union Fire Insurance Company of Pittsburgh as garnishee. The attachment arose out of the refusal of National Union to pay a judgment in favor of American Ice Company against Delbert J. Scott for $30,000.00 and costs of $43.00. Resolution of the issue presented will require a determination as to whether, on the facts set out below, the garnishee is precluded from asserting a provision of an insurance contract with Scott's employer, W. W. Chambers, which would exclude coverage of Delbert J. Scott. The facts have been stipulated to by the parties.

 Thereafter, two suits were filed. Harvey P. Walker brought suit against the American Ice Company for damages arising from the accident. National Union Fire Insurance Company of Pittsburgh, the liability and workmen's compensation insurer of W. W. Chambers, joined in Walker's suit against American Ice Company for an amount to which they were subrogated by reason of workmen's compensation and medical payments made to Walker as a result of the accident. In the second suit, Delbert J. Scott similarly sought damages from American Ice, and again National Union joined as plaintiff. E. Willard Hyde, Esq., was attorney for the plaintiffs in both cases. During pendency of both cases, Ernest C. Raskauskas entered his appearance as attorney for the plaintiffs. The two suits were consolidated for pretrial and trial.

 On April 16, 1962, in the Walker case, American Ice Company moved for leave to file a third-party complaint against Delbert J. Scott seeking contribution on the theory that he was jointly liable with the driver of the American Ice truck for the injuries sustained by Walker. The motion was granted. On September 6, 1962, an answer to the third-party complaint was filed on behalf of the third-party defendant Scott by Messrs. Hyde and Raskauskas, as his attorneys. On September 19, 1962, a supplemental pretrial hearing was held concerning the issues raised by the third-party complaint and answer, in which Mr. Raskauskas participated as attorney for the third-party defendant Scott. The consolidated cases were called for trial in this court before Judge Pine on November 6, 1962, and on November 14 trial was concluded. Both Mr. Hyde and Mr. Raskauskas actively defended Scott as third-party defendant in the trial, as well as trying both cases for the plaintiffs. The verdict of the jury in the Walker case was for the plaintiffs for $60,000.00 and on the third-party complaint for the third-party plaintiff, American Ice Company, for contribution against third-party defendant Scott. In the Scott case, the verdict of the jury was for the defendant American Ice Company. Post-trial motion in the Walker case was made and denied, and on January 31, 1963, a praecipe was filed entering the judgment for plaintiffs Walker and National Union Fire Insurance Company against American Ice Company as fully paid and satisfied.

 On February 8, 1963, a judgment was entered by Judge Pine on the verdict in favor of third-party plaintiff American Ice Company against third-party defendant Delbert J. Scott for $30,000.00 and costs of $43.00.

 On the date of the accident, March 4, 1958, the Cadillac ambulance here involved was owned by W. W. Chambers Company and insured for public liability by Policy No. AC50826, issued by National Union Fire Insurance Company of Pittsburgh on December 15, 1957. A specimen copy of this policy is stipulated. The "Insuring Agreements" of this policy contain the following provision:

 
"III. Definition of Insured: * * * The insurance with respect to any person or organization other than the named insured or such spouse does not apply:
 
* * *
 
"(2) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer."
 
"* * *
 
"3rd. Had you at the time of the accident of March 4, 1958 an automobile liability policy issued to W. W. Chambers Co. covering the operation of the Cadillac ambulance involved in such accident? If so, state the number, date issued and policy limits.
 
"Answer: Yes. Policy No. AC 750826 issued December 15, 1957. Our attorney advises us that we do not have to disclose policy limits.
 
"4th. Did the policy referred to in Question 3 extend insurance coverage to employees of W. W. Chambers Co. operating automobiles belonging to said assured and operated in the ...

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