*1 аgainst ap- figures statute authorizes costs The map lines on the written including degrees parties, Aron- all Earl indicating these G. various parently represented. son as one of the highway evidence grade which the party placed thereon brought by were disclosed action is an admin- This Ap- produced a witness. as istrator, person expressly who authorized ground of upon objection pellee’s prosecute statute to it. Costs are properly hearsay sustained. chargeable repre- estate or surviving (the sented husband and chil- Finally, to the come we dren) unless the costs the court orders by appel advanced plausible contention charged against “for the administrator propriety of the relates to It lant. mismanagement or bad faith in such ac- dis judgment costs and for personal finding mismanage- tion”. There is no against administrator. bursements faith; and, indeed, appellee ment or bad rep brought action in his Appellant expressly disclaimed such contention. capacity administrator. as resentative wrong- appellant objects The only per as mentioned children The statute, 61-7-3, ful death Sec. A.C.L.A. damaged as a result who were sons amended, does not “disclose wrongful alleged and are death right against personal to assess costs collectively parties individually to the or representative of the deceased.” But. suit, except as beneficiaries. no such assessment was made provides, pertinent against “The statute qua this case the administrator * ** administrator, question representatives personal moot. * * * an in judgment action maintain It follows that is like- ** * wise correct far as jury amount re so taxation for done exclusively any, costs decreed. covered, be if shall judgment husband or the decedent’s is affirmed. the benefit * * ”2 children wife action authorized evident that the It and here involved is for the law surviving husband benefit brought The administrator children. authority of the statute for persons. of those exclusive benefit FIDELITY & AMERICAN CASUALTY COMPANY, Inc., Appellant, A.C.L.A.1949, provides 55-11-65, Sec. follows: PAUL-MERCURY INDEMNITY ST. prosecuted “In an action or de- COMPANY,Appellee. executor, by an administra- fended 16441. No. express tor, trust, or trustee of an Appeals expressly States Court person United authorized Fifth Circuit. prosecute or there- statute defend July in, shall recovered in or- costs dinary cases, but such shall costs Rehearing Deified Oct. chargeable upon collected estate, party repre- fund, or off judge
sented, unless the court or shall order the same to re-
thereof plaintiff off the defendant сovered mismanagement
personally for faith such action the de-
bad thereto.”
fense
2. Ch. S.L.A.1949. *2 Montgomery, Ala., Ball, ap- Fred
pellant. Williams, Birmingham, Harold John Pemberton, Montgomery, Ala., W. appellee. RIVES, BROWN, Before JONES Judges.
Circuit Judge. BROWN, R. Circuit JOHN strikingly facts, simple, On neither conflicting, complex again nor we have problem an Insurer who has writ- n and taken the ten Assured’s go urging premium, elsewhere, him to tentatively finally, if because another ought- is, to, be, liable whole, part half, for the In loaf. moving process generally Insurer garbs appealing itself robes. of casting that, some so assured itself strange role, what it it asserts so often 5H liberally While truck Estes drove truck. should denied that being employee of and, man- was toe hold unloadеd a bare construed consignee enough Larsen, Inc., Larsen & ages of a make itself *3 job-site, injured con- Estes was when the of another a construction force to employees negligently an- by with Larsen allowed another tract made cargo heavy piece which, fall no cir- of truck’s to under assured and other benefit, on him. cumstance, for made its was Farm Casualty Maryland v. Southern Co. In- Estes sued who called on its Larsen Cir., Co., 5 Casualty Insurance Bureau surer, Indemnity Paul-Mercury St. Com- 679; Automo- Services 235 F.2d United pany Paul) (St. undertake the defense to Cir., Russom, bile Association Comprehensive its and General of Co. Insurance General F.2d Policy1 Liability (ACP Automobile Co., Casualty Fire America Western Form). occurrence, injury, Cir., Casual- Continental clearly of amount the claim were within Suttenfield, 236 F. ty Company v. the broad of St. Paul 2d 433. Up stage, plain to Paul had a St. obligation indemnify Coming Lar- to defend and as it does is here. So it all but sen. seem accident and the assureds forgotten match Insurers two By the circumstance fortuitous against against clause, clause the accident occurred in Alabama where exclusion, denial, in this claim legal categorically issue not was adversaries. between fortuitous
battle foreclosed, Osborne had automobile policy2 Osbоrne, carrier, with an Omnibus Insured was the contract excess, pro rata, (chartered) and a of the truck clause rather than leased owner clause, question. Amer- Other Insurance and unload his driver. Estes was ing a use Fidelity Company, Inc. truck constituted ican (American) permission, Insurer. Osborne’s Paul Osborne’s with St. 2. The 1. Larsen & upon maintenance imposed ity. cident To jury, which the icy.” cause tained sured. provided: tional Standard all sums nual damages sured under this broad obligated §500,000/§l,000,000, “I. “I. pay any person any pay damages, including loss of time premium §1435.89, American form was To sickness him law for With limits Coverage Coverage by any person or оn behalf of For time for care and loss bodily upon to pay resulting therefrom, insured shall reason of the Larsen, arising services, pay or use of the automobile.” bodily injury on behalf or resulting therefrom, sus- him injury, A— Automobile A— by disease, including persons, out bodily injury liability. Ine. was a named reason Insured shall become Bodily because of the insured all sums §100,000/§300,000 at an estimated an- damages, including damages form: become law or contract liability imposed persons.” captioned Larsen was in- with caused Injury Liabil- Liability services, the Insured ownership, sustained bodily obligated including limits death at liability death “Na- care Pol- be- ac- in- in- 4. American 3. The American Use injury of the course use the while dent sured surance thereof.” for the use use mission of the named and, person who is a named organization such coverages stated includes the coverages, qualified of this supplied son “(d) “(a) “III. of the automobile contrary, of the automobile for or except arising out of the maintenance employer.” using does to of such the automobile same Definition of ‘Insured’. The with organization legally responsible word ‘insured’ wherever to any employee policy definition, injury A includes [*] pinpoint thereof, provided where death respect also includes employer when apply: automobile and employment in to B loading than the [*] specifically of another or to and in provided applicable to insured. insured; is with with injured problem): any person Item death of [*] other any person business of named iiv- the actual respect (emphasis unloading stated to purposes any 5: an acci- insured to used in the parts [*] “(c) such per- per- un- to legal right familiar, no understand- had vindicate. All it madé the now but ably surprising As- had to its was a itself announcement as between defense Paul, Larsen, assured, it, did its own sured Larsen that obligation Larsen, Assured, American’s available Lar- owe indеmnify assured, sen someone as an Paul to defend or because omnibus the St. no apply. had Larsen did not else—a with whom relationship whatsoever— contractual change This did not when St. Paul in- obliged defend. St. American was declaratory judgment stituted this ac- right this under Paul claimed the to do against Larsen, Osborne, tion and, the “Other Insurance” endorsement5 good measure, *4 for under the ano- policy. its nymity Roe, of John Doe and Richard employees four the or stage, five manual labor had no Paul But at this St. negligence of rights policy. Larsen caused Estes’ whose whatever American’s under brought play harm and ligation ob- it, intо St. Amer- Paul’s and Paul not a St. was to very agreements to defend acts. This those whatsoever had made no ican present justiciable controversy did would, be- would Paul that it or with St. tween Paul complete St. and But neither do, anything. Larsen. Paul was St. Larsen stranger. nor John Does and sub- his allied had no St. Paul total then sought any by rogation rights, Richard Roes swer, relief an- by special endorse- for claim, otherwise, against itself, ment, cross or those Larsen and between So, (or Osborne). any payment American while “In the of arose event answered, not, American was in and then the suit policy” which had under this jousting as a awas now, substantive matter it or been ever made. entirely between gers, unrelated two stran- interloping stranger, Paul an St. Still foreign having other, to each and and American this called on to defend legal no common fiction or source Paul was declined. Whether St. was otherwise. right right the con- on or was posture important keeps This it Em- of the Omnibus and the struction ployee sharp interpreta- focus that in the American’s Exclusion clauses6 of (and policy tion of Em- policy was, Paul and American’s the as between St. only. ployee Exclusion, 6, supra) American, note this matter St. an academic light anything entirely must be viewed in the that Paul сould not then demand re- this is related to which St. the American’s from American on defense urges against Assured, any demand, Paul own Paul St. fusal to abide with ard of “valid and insurance” to modified collectible Paul’s standard form was St. insurance reason “de- “unavailable” an stated: endorsement which liability otherwise,” which, nial of or of occur- “If there exists at the time course, American did and still does. terms other under rence insurance is entitled (cid:127)of which the Named Insured general policy American’s under n to coverage, protection and the cov- then Exclusions stated: erage provided policy ex- shall be this policy apply: “This does not good, ** such other cess over above injury “(d) bodily or If, be- and collectible insurance. valid any employee death insured exclusion, limitation, ** denial of cause employment engaged in the while liability otherwise, under or engaged insured, or while of operation, unavailable such other insurance repair maintenance named insured hereunder then automobile; subject shall, terms, condi- to its [bodily inju- “(e) A operate primary limitation, tions any obligation ry], for which the protection insurance any company as his insured Insured.” Named may be held liable under workmen’s sup- compensаtion (Emphasis first sentence of the above endorse- law.” language plied.) the standard ment position sentence, that Estes The second added American’s (cid:127)endorsement, Osborne, markedly changed In- it coverage. (Larsen) sured, was no stand- hence there Insured’s favor from a way: And, process works this on the con- to it. Larsen. obligated trary, every to defend (1) there is should Paul is not reason that it insurance; interpreted written, applied Larsen if Larsen has (2) cover, they because other insurance and if Larsen has the words should used (b) might applied though (a) Assured and is an Omnibus even the result Employee in that “other” Exсlusion be less favorable to one apply. contract, policy does not but is nonetheless now who quite satisfied with it. controversy pending, In this sole then party beneficiary of the contract. Prin- ciples other contract between those this determining ployers different as to utes or parties (American Osborne). contract “other” tract between the Larsen), vorably plete stranger, 238 Ala. no action clause of ance between it and claima this make it better or signment) sured vail tion sured under American’s Paul’s all then fails in the effort to Southern Farm 12, St. subrogation What we are This has crucial simply then stratеgic advantages Title assured, judgment Paul neither is may Co., supra, the judgment (named position Ins. to the assured. and construing no basis for 28, procedures 26, it is favored status give, construction opinion expresses Alabama Code Co. of Alabama or one who under state stat- suit seeks 189 after solely necessary Maryland status is neither that in implied those Bureau creditor between application saying omnibus) So. seeking has — words indemnity, *5 assaying importance parties more assured, Larsen, compliance a case is deemed a third 58. reading nor cases, entirely which often policy. St. Paul anticipatory reap Casualty is to construe an- And, as a com Casualty a vicarious as an insurer reasonable satisfaction claimant, with acquired (by who has simply (St. v. well the defense none. This of one con- clauses to or a that Johnston, which, into that of an as for there most with different Paul v. tactical Section be far Insur v.Co. as to third this: posi paid Em pre and the for while fa as proper construction of the words ployment of the insured admittedly while whether such bama Workmen’s And it then plain coverage only in those roneous. authority 43, sured’ contained in exclusion clauses injured party omnibus ly er of the insured while ceived sured or аn additional insured under the In supra, the term coverages, [*] Code ¤ language “bodily injury sured Osborne. Estes (Osborne), We The Erie In this Estes was an The that it does not expressly peremptory [*] concluded that (e) 1940, claiming coverage leaving engaged language think that as to compensation that “This District Alabama7 his conclusion [note clause “Insured,” » light, “includes the * * * Tit. sustained his ** proceeds stating, note handwriting 6, supra] some for Daniel’s read- insured be is an to terms the American 26, employee Judge, * * * * * plain * * * § the “better excluding with * apply Compensation Act, to state engaged 253 et uses subject employment cases *.” * * * 146 under the of thе insured declares, does not .” * * * named insured” respect injuries equally simple, whatsoever to it. And Estes 3, supra, on the any employee in which seq., direct. F.Supp. controversy emphatical- in the em- of the in- liabilities. the that existing insured, exclude and re- ‘the apply.” “ * * wall, * * Aft- Ala- uses (d) 39, er- in- in- ‘ special caveat, implied state, result, 7. We sound a bind- Louisiana every diversity ease, ing us, contrary. on this is would be Employers’ Liability Alabama alone and does not bind Pullen v. Insurance state, Corp., 867, Court as to So.2d 373. other 230 La. 89 as 514 given circumstances, enough ing, law will us to indicate reveals according uphold
probable
to its
would take.
the contract
Alabama
course
64,
Kilby
import.’
Tompkins,
Car
true intent and
304 U.S.
[Erie L. Co. v.
Foundry
Georgia
817,
act
&
Co.,
58
Co. v.
515 may be on does not advance, keeps made both sides tainable from him having necessity being party lessen Alabama whose as of “intention” Alabama, And, inception to make we may a choice. taken must-do the same. into pic- account. He enters the initial ture insofar as the named assured assaying in When it comes to and insurer determine the сircumstances tent, looking contract we are they under and the mu- extent through eyes of Ameri Osborne and tually persons intend that such third They can. con are the to the to be extended benefits. This has wisdom course, tract. Of when the facts occur for, argument unlike the Amer- made give him that incident ican that the named assured have cannot status, an Omnibus the bene Assured is give intended to ficiary Omnibus Assured oc of the contract and for that cost, insurance without there casion amor is a his to it. But advantage phous never, nature, substantial assured and that the fact seldom, identity which the is his known or ascer- takes account аs into
224 N.C.
Manamay,
dent
987;
795, appeal
121 N.Y.S.2d
Associated
A.L.R.
pany,
2d
smith,
has
Omnibus
does not
ington
pi,
ployee
lowed
Pierce,
Law
Service Mutual Ins.
clusions that
of
liability.’
collectively,
their
and Rhode Island.
should
age. Exercising
to increase the limits of the
clause, apparently
primarily
didly acknowledge
tent
more than one insured
‘the insured’ is used
rather
(and
*7
(named
Cases either
“Severability
Employers
New York
754;
asserting
New
always
Ins.
Review 65
ranks),
in the
with adverse
2 Wash.2d
531;
*Continental
of
than what it
be construed as
or
Standard
York,
”
Fire
Assured:
does not cover suits
Co.,
65 S.D.
expand coverage
Miss.
App.Div.
omnibus) claiming
Indemnity Corp.
but
Ninth Circuit and Wisconsin
publication
Shawcroft v. Standard Acci
denied 281
been the underwriter’s
what
shore
but
v.
Mut.
Employee
the new
named insured
767;
holding
31 S.E.2d
South Dakota and Wash-
177 Wash.
of Interests:
Maryland Casualty
the inclusion herein of
the advocate’s
(1955).
Casualty Co.,
that their thesis
Surety
679,
now in
Casualty Company
Liability
up
indications
rejected Mississip-
Co., Sup.,
581,
is,
Birrenkott
particular
Greaves v. Public
446,
severally
or
the authors’
99 P.2d
law
shall
the authors can-
limiting
Exclusion clause
(1955)
So.
Louisiana
276 N.W.
App.Div. 1069,
indicating
general
119 N.Y.S.2d
ought
& Ins.
because it
156 N.Y.S.
the cover-
v. Wach
company’s
article is
Webb v.
148 Fla.
420,
standard
privilege
30 P.2d
and not
operate
v. Mc
Kansas
insured
an em
*Gibbs
use:
is
to an
Com
joins
term
725;
con
Co.,
fol-
Co.
be,
an
Note
Mut. Auto. Ins. Co. v.
258 Wis.
now
cidental.
Wis.
ployee having
Mann v.
Tenn.,
47 N.W.2d
sured as
Va.,
hicle
151,
P.2d
ance
1956,
firmed, Cir.,
house Association v. Cal-Farm Insur
rest
cussed,
Shanahan v. Midland Coach
Cas.
Church,
dens, Inc.,
alty
v.
Casualty Company
ployee
Co.
Vt.,
ant
753, 29
nity
Omnibus
Connelly
(d),
Cases
Employers’ Liability
Behner,
:
Valley
v. Deerfield
Minn.
Co. of
Ins.
expressly
76 N.W.2d
heavily
5
233,
Co., 1956,
Co., D.C.Pa.,
109;
Casualty
230 La.
These
133
3
F.Supp.
A.2d 540.
So.2d
Sandstrom v. Clausen’s
234 Wis.
employee against
either
F.Supp.
v. London & Lancashire Indem
Assured: Lumber Mutual Casu
Co., Cir.,
Co. of
F.2d
Faulstich, 1951,
the named insured
67 N.W.2d
262 Wis.
Lima Bean Growers & Ware
534,
America,
317; Zippel
does cover suits
F.Supp. 955;
Ginder v.
which Omnibus
on a
supra.
867,
cases
a status of Omnibus As-
252;
holding
Co. v.
exсluded under
841;
142
Kan.
10 N.W.2d
46 N.W.2d
New York v.
486;
Valley
155,
600. Wisconsin cases
89 So.2d
49
special
567,
Cal.App.2d 126,
68 R.I.
Pearson
involve cross-suits
of
*Kaifer v.
In some it
*American
writers whether
that,
circumstances,
House,” Maryland Casualty Company cide
fee
controversy”
In
there was no “actual
with-
v. Southern Farm Bureau
meaning
Judg-
Declaratory
Cir.,
Company,
F.2d
in
235
surance
683,
5
Act,
Dotschay
ment
are not
28 U.S.G.A.
or elsewhere.
§
Courts
E.
for
Carnes
Use and
of Alfonso v. Nation-
remake the contract. C.
Benefit
Liability
Company
Employers’
Assurance
al
Co.
Mutual
v.
Insurance
District
Corp., Cir.,
Columbia,
v.
Cir.,
101 F.2d
Williams
5
246 F.2d
Gen-
Com eral
American Automobile Insurance
pany, Cir.,
Insurance
of America Western
Co.
v.
Casualty Co.,
Cir.,
Fire &
F.2d 704.
241 F.2d
289; cf. United Pacific Insurance Com-
by the District Court
The declaration
pany
Casualty Company,
v.
Ohio
American-Fidelity
policy
that the
836; Maryland Casualty
Com-
Casualty Company,
Om-
Inc.
covered
pany
Hubbard, D.C.Cal.,
F.Supp.
Larsen, Inc.,
Assured, Larsen &
nibus
697; Oregon
Company
Insurance
Auto
injury
received
Estes
for an
Guaranty
Fidelity
United
States
employment
Osborne
for
of his
course
Company, Cir.,