*1 demanding at state in the present (d) he was not charged. offense time decided, is controlled issue, previously while not
The second Extradi- interpreting Uniform of other courts decisions 629.02, 629.05, and 629.19. 2, Act, 5, St. tion §§ 19; (Colo. 1975) See, Tanksley, g., 2d 827 v. P. Buffalo e. 1972). see, (Tex. And Cleaver Castor, 2d Ex Parte 481 W. S. (1971). cases These State, 336, N. 2d 700 187 W. v. dis- asylum has governor state support view that fugitive before cretionary authority extradition of a to order asylum been satis- violating has the law the state sentence for discre- governor has the act the fied. We believe that under only prisoners but tionary authority to order extradition interpret parolees, act. also and we so Affirmed. FABER, AND NATURAL
ELEANOR MOTHER FABER, MINOR, KIM OF A GUARDIAN JAMES ROELOFS AND OTHERS.
TRI-STATE MUTUAL INSURANCE ANOTHER, AND COMPANY APPELLANTS.
250 W. 817.
January 1977 Nos. 45818. *2 Faegre Brooks, & Wright appellant Benson and W. for Tri- State Mutual.
Erickson, Zierke, Kuéerer, McKenna, Utermarck & Charles Zierke, R. and Wilhelm, appellant D. Gerald Mutual Service.
Winter, Lundquist, Sherwood & Athens and Marvin E. Lund- quist, respondent plaintiffs.
Peterson, Popovich, Flynn, Knutson, Knutson & James E. Ruud, Ronald respondent C. school district. Otis, Peterson, Yetka, JJ.,
Heard before and considered by and decided the court en banc.
Otis, Justice. Roelofs, years ago, in Faber us two This case before (1973). a student Kim Faber was 212 N. 2d 856 W. Edergton injured Elementary He was at the School. Christian bus, slipped, alongside school he ran out into the street owned defendant fell under the wheels. The bus was Brouwer, Roelofs, hired driven defendant Arnold James students at Independent No. District and serviced School Elementary jury found owner the Christian School. The negligent, negligent, Ele- the driver the Christian the bus 20-per- 25-percent negligent, mentary school district School negligence, negligent and Kim 35- cent on each of two items Damages negligent. $145,800 percent $66,000 Kim and father, expenses, Faber, for Kim’s medical were Kim’s Wilbert Judgment reduced was entered respect amount. to the district for With $94,700 amount it was ordered: Judgment Plaintiff, Faber,
“That Kim is entitled *3 Defendant, Independent School District No. Edgerton, $50,000.00; in of the amount that said Plaintiff is also Judgment may to entitled for such additional amount as sub- be sequently determined to covered insurance in have been ac- exceed not to 466.06, with Minnesota cordance Statutes $44,770.00.” of sum 1974, Wilbert judgment affirmed.
This which we was Faber, substituted mother, Eleanor Faber died and Kim’s plaintiff Faber. Wilbert for as judgment on the appeal for this
This concerns Company Mu- insurers, Mutual Insurance Tri-State of two Company.1 district Casualty Insurance The tual Service general liability policy with limits has a with an in this court for order dis Defendant James Roelofs moved unnecessary opinion missing appeal to rule This makes as to him. on the motion. is addi- bodily injury person. school district to each The Mu- s’
tional insured under Roelof automobile tual, involved liability. The three issues same limits judgment coverage available appeal (1) in are: Is this coverage (2) Is policy? to the school under the Tri-State coverage avail- policy? (3) is also available under the Mutual If Tri-State, or able from liable for is Tri-State $100,000? coverage trial held that was available court policies up both to that Tri-State was liable coverage questions, We affirm to on issue but reverse of the liability. extent of Tri-State’s
I following The Tri-State contained the exclusion: bodily apply injury property “The insurance does or damage arising ownership, operation, out of the maintenance, use, loading unloading any aircraft, or automobile or water- owned, operated craft any or or hired for the insured or of- ficer, employee teaching, supervisory or member or ad- purpose ministrative staff thereof. For the of this exclusion the any word ‘hired’ shall be deemed include contract furnish transportation pupils from schools.” negligence school district found liable because of its (1) acting failing in establishing route, or act in (2) bus acting failing establishing or loading act in bus and unload- ing procedures. coverage or Whether was afforded for this policy, under the terms Tri-State is nevertheless estopped denying from because of its action con- trolling the defense action without a reservation of rights.2 Tri-State controlled the school district’s defense
2 district court stated a memorandum: “The Court is satisfied majority (the that the rule insurer has waived *4 courts interchangeably) in these to use these cases terms its de seem coverage of no fense in those cases in which it has assumed and Here, directed defense an the action its insured. Tri-State only assumed control and conducted the whole trial to verdict but it 432 through appeal in court. first this of the action
the initiation right deny cover- its gave reservation of never notice of a It fully facts, decisions, are discussed age.3 Upon which our such (1930),4 hold Johnson, 138, 231 N. W. 817 in v. Oehme denying estopped under the from Tri-State language following approval from Oehme, cited with we Chicago Big Muddy Co. 141 Corp. C. & C. Employers & L. A. v. (7 962, 1905): Cir. F. error, taking and domin- plaintiff in control
“The of the act keeping damages, control and such ion of the action entered, de- judgment without notice to the until dominion liable under did not consider itself in error that it fendant taking control in error the policy thereby from defendant — policy, construction of the action —is and dominion deny- acts, plaintiff estops contemporaneous error from any liability, at an end. To take other ing that action is now that case, ef- be to hold that the assurer could view assured, might, fectually tie action that the hands of might policy, not, on a construction close of the be covered being then, policy, determined the terms the cause against it, upon reading policy, as- insist that closer ought defense, and its sured to have been left to make its own at 152, 231 N. 822. own risk. cannot be the law.” 181 Minn. This W. argues have been insured must be shown to before the can be prejudiced by insurer’s conduct insurer raising noncoverage. defense of Such ap- post-trial proceedings controlled and all and conducted all conducted proceedings, including petition rehearing pellate which denied. any way coverage At no time did Tri-State indicate in denied right reserving deny or was its plaintiffs.” claims of the two Employers Corp. Mann 123 Minn. 143 N. v. Lia. Assur. W. 794 (1913). 4See, (1930); also, Maloney, Peterson 181 Minn. W.N. ' (1944). Cowan, 317, 14 N. W. Simons v.
433 be- respect rule case to an insurer who withdraws from apply argued trial.5 It should fore has been that the same However, rule our cases as the at bar.6 one prejudice conclusively when presumed to the insured will be complete insurer the defense without exercises over control rights. reservation of 478, Corp. Minn.
In Tozer Accident 94 v. Ocean & Guarantee (1905), 103 N. 509 at not afford W. issue did injuries employed contrary law.' to a child child labor to the employee injured, de- Such an and the insurer undertook to plaintiff $5,000, fend the claim. offered to settle for Eventually, policy limits, amount of the and the insurer refused. plaintiff’s point, the verdict of returned. At insurer denied under the held that the insurer We was liable for the amount Mr. Brown Justice argued prejudice in dissent that no had been shown other than to the liability ($7,750) extent eventual exceeded the plaintiff’s allowing ($5,000), settlement offer and that the in- sured to recover the entire amount allowed him to recover prejudiced by when he was not actions. The ma- insurer’s jority, by indicating specifically in the face this dissent by holding prejudiced, how the insured was that the insurer denying will preju- be from when to do so will insured, implicitly prejudice dice the presumed held that will be controlling from the act insurer the defense.
Prejudice presumed insurer, by taking because the control rights, away of the defense without a reservation of takes right the insured his to control the defense as he fit and to sees negotiate make or Johnson, a settlement. Oehme v. 181 Minn. 138, 151, 817, (1930); 231 Cowan, N. W. 822 Simons 217 v. 317, (1944); Gamble-Skogmo, 14 N. W. 2d 356 Inc. Paul v. St. 5 Benson, 314, Minnesota Mutual Fire & Cas. Co. v. 292 Minn. (1972). N. W. 2d 446 6 Keeton, 6.4(f), p. Law, generally, Annotation, Insurance 368. See 1148, 38 A. L. R. 2d to 1161. (1954).
Mercury 91, 103, 64 N. W. 2d Ind. 242 Minn. Co. simple procedure Because the to him insurer has available giving rights, him from estop reservation of a notice of having denying without when he controls defense given such a result.7 notice is a harsh estopped by argues action
Tri-State then that it cannot be controlling required to defend the defense because it was Buehl, Vanguard Republic Ins. Co. action under duty (1973), an insurer has a which held that W. to defend the at least one the claims asserted insured if *6 “corollary coverage. rule” policy him is within the It as a cites proposition 1148, Annotation, a L. R. 1179: stated in A. against policy lia-
“It action whom a seems that if an one to bility upon insurance been issued is based claims some of has not, then which are within the the and some insurer, by defending action, recovery upon not, the the after asserting coverage, a claim not the within noncoverage.” considered, however, Before Annotation rule can be there must be asserted a insured both claim within and a coverage. argues claim without upon Tri-State that the claims plaintiffs eventually which coverage, recovered were without the coverage negligent there was asserted a claim within — supervision of the children at school. This contention is based upon language II, paragraph IV, the italicized of count of the complaint: Independent 581, Edger-
“That defendant District School No. ton, carelessly negligently, contrary applicable and rules and regulations, supervise operators failed to and instruct unloading buses loading relative to the pas- and of student sengers at the various schools for which defendant said recognized That such is our law has been Boulet v. Mutual Millers Illinois, (8 1966) Security Insurance Assn. of F. 2d 619 Cir. and Ins. (D. 1952). Jay, Supp. Co. v. F. service, agreed said buses have contracted or
district had arid supervise children negligently carelessly and to. failed arrange- schools, proper and safe make students at said failed to from said unloading loading children of said ments for and dangerous and permitted negligently carelessly buses, and loading unloading procedure and condition hazardous various schools of the exist reference to the students arrangements.” (Italics supplied.) pursuant to the above serviced difficulty argument is that * * * * * * arising “bodily injury use” out excludes injuries bus. If Kim’s arose out the use of bus. negate coverage policy, sufficient under the Tri-State coverage. then no paragraph there is claim in IV which is within general It matters not that the italicized clause is a claim of negligence; injuries arose out of the use of the bus apply. being any exclusion There not claim within cover- age, argument falls. presenting
While Buehl Tri-State refers to a situation bar, similar the one at the exclusion clause in Buehl was dif- * * * case, ferent. apply did use “to the * * * (1) automobiles.” 295 Minn. note N. W. 2d complaint alleged 427. The (1) vicariously defendants were liable negligent motorcycle use of son, on the of their (2) negligent failing son, knowing to control their of his *7 dangerous propensities. The latter claim was to held be within policy coverage, alleged negligence as common-law parental supervision, negligence in the use of automobile. an however, bar, In the apply merely case at the exclusion does not automobile, use bodily injuries arising to the of an out of distinguishable. the use of an automobile and is thus II
Mutual contracted as follows: pay
“To on behalf of the insured all sums which the insured legally obligated pay damages shall become of as because including any time disease, death at bodily injury, or sickness by any person, by caused accident resulting therefrom, sustained auto- arising ownership, maintenance use of of out mobile.” an “additional in- stipulated the school district was
Mutual clause of the sured” under the omnibus by buses insured run over one of school Kim Faber was negli- by absolved of Mutual. The and owner were both driver negligent respect gence. The school district was found (1) routes, (2) establishment of establishment bus bus loading procedures. requires indemnify the school district contract it to
Mutual’s damages legally obligated pay if the because arising bodily injury by by accident and sustained Kim caused legally obli- out of the use of the bus. The district is school school bodily gated pay damages in- damages. arose because by jury Kim, he was run over sustained caused accident when by the school bus. argues injuries the use”
Mutual that the did not “arise out of argues the owner school bus. It that neither the driver nor injuries negligent, out and that therefore “arose of” negligence g., some other event, e. two-fold district’s con- respect boarding procedures. This to bus routes tention, accepted, rewriting phrase of if the last would result * * * “arising negligent clause to read out of use reads. automobile.” That is not how 'arising mean phrase “The out of’ is not to be construed ‘proximately thought by.’ expressed words caused ‘arising comprehensive out the use automobile’ is phrase phrase than a broad in service. The itself is much broader ‘proximately caused use of automobile.’ ‘arising causally with, ‘proxi- words out of’ mean connected ‘ mately by’ causation, i.e., re- caused use. “But for” a cause and
437 poli- satisfy provision the enough the relationship, suit ” 1.22, pp. Liability Insurance, 1-57. Long, cy.’ 1 Law of King, H. A. v. Fire In Union Mutual Ins. Co. icy on an plaintiff slipped and mechanic fell (1973), 2d 335 garage. pushing her driveway car out of the insured’s while maintenance, negligence operation, in the There involved was no automobile; any negligence arose the accumu- or use of the driveway. Nevertheless, lation the insurer held of ice on the provision liable that is neces- same at issue here. “All sary causally connected use or is that the accident with the A. maintenance insured 113 N. H. vehicle.” 336.8 following policy Mutual’s contention would founded if be well agreed applied to insurance for limitation Bodily this case: “It is that the Damage Injury Liability Liability apply Property does injury, sickness, disease,
to loading out of death or destruction which arises -unloading automobile, prem or of an if on the accident occurs (including ways adjoining) owned, ises immediately rented or con person person against employer trolled either or of the brought sickness, whom injury, claim made or suit is for such dis ease, respect death apply or destruction. This limitation does not brought against following to claims made or suits insureds: “(a) individual, or, insured named if the named insured is spouse, household; if a resident of the same “(b) employee a bailee or borrower of or an of either the automobile insured; of them or named of the “(c) truckman, any if the named insured is classified and rated as a person organization, any agent thereof, engaged employee or or or transporting property by the business of in- automobile for named others; subject sured any or for nevertheless the limitations of en- specifically applicable dorsement made a to truck- men; “(d) person any organization only respect other or to his (a), (b) or its because of acts or of an insured under omissions (c) above.”
Then, have unless its arose because of the acts or omissions the driver or owner. Both However, driver and owner were exonerated. found trial court Mercury Gamble-Skogmo, Ind. Co. Inc. St. Paul injured ¡91, (1954), Lyngstad *9 64 2d one was W. reassembling implement known while he was a farm as a Cock Gamble-Skogmo Lyngstad’» employer shutt swather. had soldi disassembled, swather, it, an shipped on the back of and had destination, reached insured truck. When the truck 1/2-ton began prior Lyngstad the swather and others reassemble removing injured. jury Lyngstad The from the truck. was Gamble-Skogmo failing give negligent proper as found sembly injury not instructions. We held that did arise out truck, notwithstanding the fact that the of the use the insured of injuries arising unloading operations. policy covered out of The injury place have whether reas taken swather was ground; simply or on the truck was sembled on the truck Ill, injury, not even a “but cause. 242 Minn. situs of for” 392. The absence of even “but 64 N. W. 2d for” causal relation injury precluded and the cover between the use of the vehicle age. 150, 154.9 bar, Annotation, In the at Kim A. L. R. 2d case by relation was run over the insured vehicle. The causal coverage. present. Mutual’s affords HI provides liability $50,000 of for limits $300,000 oc- “bodily person” injury” “each to “each Liability” states: currence.” “Limits of Under liability bodily injury “Coverage stated A—The limit of com- person’ the limit of the applicable ‘each schedule injury damages bodily sus- liability because of pany’s for all upon lease, own, premises or control the school district did not (Kim adjoining which, struck on which, accident occurred. was ¡Christian School, parochial Elementary school the street next to the Thus, apply. attended.) the limitation does he which question of whether deal with the other cases cited Mutual “using” be “additional insured” as to was the automobile so someone conceded that has Mutual the omnibus clause. within relevant. insured, cases so those are is an additional occurrence; any but sub- one as the result person tained one respecting person’, the total lia- provision ‘each ject to the above bodily injury damages company bility all because of any one occur- persons result or more as the sustained two bodily injury stated rence shall not exceed the limit of applicable in the schedule as ‘each occurrence’.” 117 N. W. Holtz v. Mutual Service Co. Cas. injured (1962), Holtz in an automobile accident. Mrs. was injuries, She was and Mr. Holtz was awarded for her expenses. The de- $5,857.16 awarded medical Mrs. Holtz’s fendant’s insurer had issued a limits person”. Holtzes the insurer for “each claimed that awards, total liable for the both while the insurer con- tended that its maximum We sustained the insurer, contention of the and held that the insurer was liable *10 $48,400, Holtz Mrs. for and to Mr. Holtz for difference $48,400 between the $50,000 limits and the award to Mrs. Holtz, or
“Quite clearly $50,000 means that the maximum damages, including exposure amount of defendant’s for all conse- quential damages, occurring any persons by all virtue of injury any single person sustained in a one accident.” 264 126,117 Minn. N. W. 2d 770. Holmgren
In Heisick, 178 N. 2dW. (1970), minor, Holmgren, injured Winton a was an auto- brought mobile (1) accident. His father suit Winton’s name (2) for his injuries, in his own name for his son’s medical expenses and for loss of his services. son’s We held:
“* * * minor, Holmgren, Because Winton was a Herbert his brought father guardian, and natural an action name in Winton’s general damages damages. special and in own name for his Both person injury these claims constituted claims for to one meaning policies type within the of insurance of the here involved.” 287 178 W. 2d 858. Minn. in other Holmgren are the rule settled
Holtz in accord with jurisdictions. Annotation, 1228, 1234, states: A. L. IS R. 3d ‘bodily’ in- fixing recovery policies maximum
“Under jury person, usually limitation held to one been has bodily flowing such applicable damage from to all claims injury, that some and that therefore immaterial it is one suffer- damages may by person than the be claimed other claims, ing damage direct bodily injuries. words, all other sub- consequential, resulting injury person, one are ject to the limitation.” appears rule, been made
This to be the universal we have any jurisdiction aware of has held otherwise.10 which 466.12, requires 3a, to obtain St. school districts subd. requirements meeting 466.04. Sub- insurance of § 1974, 466.04, provided: divisions and 2 of Minn. St. any any Liability municipality “Subdivision claim 1. on scope within the not exceed 466.01 466.15 sections shall wrongful $25,000 “a. act when the claim death one for case; $50,000 any any omission and claimant other single $300,000 any arising of a “b. out of claims number occurrence. damages any punitive on shall include
No award for claim damages. imposed by indi- 2. limitation section on
“Subd. damages claimed of services includes for loss claimants vidual arising support same tort.” or loss of put bodily injuries; awarded Wil- Kim Faber father, Faber, was awarded for Kim’s bert Kim’s medi- *11 Roelofs, 16, 25, 212 expenses. In Faber v. 2d cal W. 466.04, interpreting (1973), we held: § 862 10 only contrary, which have which held the we found to Case Phillips, App. 56, v. 108 Ga. 131 2d Mutual Ins. Co. S. E. Cotton States (1963), State Farm Mutual Ins. survive Auto. does not Co. 355, 144 (1965), reversing Hodges, App. 221 Ga. S. E. 111 Ga. Phillips. (1965), relied which had on S. E. 2d liability ‘any municipality’s claim- “Minn. St. 466.04 to limits essentially separate $50,000. parent’s ant’ to Since the action is action, injured his the child’s that an minor and we feel may are both re- father claimants under 466.04 that each § up $50,000.” cover to
The district court ruled that Tri-State to both Kim was liable up $50,000 each, notwithstanding his father to the ex- press Holmgren policy terms the of and the Holtz and decisions. ruling His initial reason interpretation for that was that our “each claimant” in Koelofs, supra, “incorporated” Faber v. policy into the However, as a matter law.11 in Faber only interpreted we language the “each claimant” in 466.04. § presented with, We were not pass upon, nor did we the standard language “bodily injury” person.” to holding “each Our was that the school district could be held liable to Kim both up $50,000. question father for to as to whether Tri-State is liable by interpreting amount is not answered 466.04 reading decision, our by reading earlier Faber unambiguous, is clear and it uses standard given terms which interpretation. have been A hold- constant ing contrary only grant the school district cov- erage paid premiums, which it no and be inconsistent with language policy itself, holding it would result in our “bodily phrase injury person” each means different things depending upon identity Also, of the insured. we would
11The Supreme district court stated: “In that case Court held that the father and his son are both claimants within the of 466.04and terms may up each recover sought “It is evident that the school to cover its as set out Chapter purchase of insurance and Tri-State knew was provision Chapter. insure school within said every right expect The school had that the Tri-State covered to the extent of for each claimant. The Tri-State incorporates Chapter Liability 466 as a matter of law. school dis- trict extent of to each claimant therefore covered policy.” *12 con- “that plaintiffs, cited the ignore rule” the “basic to
have with ref- presumed contracted tracting to have parties be must making place of at the time to the which exist erence laws contract, policy used making the the At time of the the contract.” universally inter- defined, specifically phrase, a standard meaning. specific preted to have a ruling that gave judge was the trial
The second reason asserting because estopped limits the Tri-State from was taking charge controlling By defense.12 of its action in coverage denying simply estopped from is Tri-State defense that which holds cited to no case have been under the We denying controlling from the defense the insurer is presumed prejudice liability in limits. The excess the insurer to control of his defense when insured surrenders Ac Tozer Ocean to limits. does not act as eliminate the (1905). Corp. 478, 103 N. W. & cident Guarantee denying only prevent that Estoppel to Tri-State acts injury.13 this covers waiver fense The court is clearly lawsuit stated: “The rationale seen in this case. insurer deprives for the doctrine of assumption the insured of its of control estoppel and right and de- to re- re- own defense and further its own counsel so as to control its tain quires cooperate In this to with the insurer in such defense. insured Supreme case, argued post-trial and in the Court Tri-State motions purposes no that 466.04and at the Fabers were one ‘claimant’ for time did claim there was no if Fabers were one it ever facing an uncovered two never knew it was claimants. school issue, to failure to raise this claimant father. Tri-State’s rights opportunity deny coverage, denied the school reserve its fact, protect inter- issue. retain its own counsel on this this issue and Tri-State ests of Tri-State and the school are adverse on $50,000coverage deny as to each should not now be allowed to full claimant, father and son.” 13We note were that the interests of Tri-State and the school district issue, contrary belief of the trial court. not adverse on this to the Throughout action, court, argued main and in purposes Kim 466.04. and his were but “claimant” for father one for, interests, completely This in accord with the district’s obviously Tri-State’s The district court was concerned if be ex- limited to the school district would posed which it would not be insured. Such earlier, judgment case. which we Under affirmed liable Kim’s school district father and to Kim subsequently $50,000' plus may such additional amount be *13 by insurance, to have covered determined been to exceed policy policy The Mutual and the Tri-State each provide coverage. $50,000 Thus, $50,000 covered, of Kim’s first is Kim’s covered, $42,900 $7,100 is and there father’s remains of insur- coverage. goes ance That amount to Kim under the terms of the judgment. course, district court Of had the school district not by been covered Mutual it exposed would have been liability to an uninsured interpretation because of our of the language “each claimant” of in Roelofs, supra. 466.04 Faber v. We trust that school districts will take problem note of this modify coverage accordingly their insurance comply so as to 466.12, mandate St. 3a. subd. judgment of the district court is in affirmed so far as it holds that there is in this case under both the Tri-State policies. and Mutual It is reversed as to the issue of Tri-State’s liability limit of provide modified that each insurer is $50,000, liable $57,100 going for to Kim Faber going Faber, and, modified, to Eleanor as is affirmed.
Yetka, (concurring Justice dissenting in part). I portion concur in majority that opinion of the which holds a liability insurer who undertakes control of the defense of a suit its giving insured without notice of a reservation rights liability denying coverage is from later for policy; and, under further, insurer who contracts to pay damages obligated on behalf of the insured all the insured is pay bodily injury arising out of use of an automobile successful, if liability. significantly would have reduced the school district’s by the sub- run over person policy when a
is liable ject vehicle. lim- opinion which portion of
However, I from that dissent recovery on each $50,000' to a total of the maximum a re- son each father and allowed The trial court case. in this The rationale policy. Tri-State covery $50,000 under the in its memorandum: forth is set its decision sought set cover its as that the school evident “It is purchase and Tri-State insurance Chapter 466 out pro- school within the insure the knew it was to right every expect that Chapter. had The school of said vision the extent of covered the Tri-State Chapter incorporates each claimant. Liability to the extent of the school law. as matter of therefore covered claimant is $50,000 to each estoppel and waiver clear- the doctrine of “The rationale assumption of a control and defense ly case. seen right retain deprives the insured of its insurer lawsuit re- own and further to control its defense counsel its own so *14 cooperate the insurer in quires the insured to such defense. argued post-trial and in in motions case, Tri-State In this purposes Supreme that Fabers were one ‘claimant’ for Court no no it that cov- of 466.04 and at time did ever claim there erage school Fabers were one two claimants. never if facing to claimant father. knew it was an uncovered rights deny issue, to failure to this to reserve its raise Tri-State’s own coverage, opportunity retain its to denied the school fact, of Tri- protect the interests it on issue. counsel to this school are adverse on issue and State and the deny as to not now allowed full should be to claimant, each father and son. position Chapter in
“Even if this Court in error its that policy, Tri-State is is included in Tri-State’s or has right deny to the same.” waived this case incongruous on the first time find appears to me to It separate claimants son are the father and came us that before they statute, yet hold that under the and to now under the recovery total “person” and thus limit the are as one to be treated allowing that instead same for both to father and son each recover to only the accident
A school at the time of district had to the school district took out the extent that it had If insurance. liability insurance, logical appears it intended it to me to take to and for which the insurance cover the limits risks recovery. that statute allowed The trial court found in- district did intend do so and that Tri-State it was to knew liability. however, testimony sure record, that no contains finding. support would, therefore, I remand determining purpose court for the sole whether the school dis- trict intended take out insurance and the re- risks covery contemplated by statute, limits whether in- fact, was, surance in so written. majority it company finds difficult find insurance
liable for a contemplate risk it did not and for which it did not premium. collect a agree I concern, but I find just objectionable insurance carrier would collect premium contemplated for a obligated risk and then not be pay when there was a loss within that risk.
Todd, (concurring Justice part dissenting in part). in join I opinion in the of Mr. Justice Yetka.
MacLaughlin, (concurring Justice part dissenting in part). join
I opinion in the of the Mr. Justice Yetka. Scott, (concurring Justice dissenting part). agree I with Mr. Justice Yetka.