14 N.W.2d 31 | Wis. | 1944
Plaintiffs-appellants were injured in an automobile collision on July 26, 1941, between an automobile operated by one Chester Gruchalski and an automobile operated by one Arnold Coaty. Plaintiffs were passengers in the Gruchalski car, insured *362 by the defendant-appellant Continental Casualty Company. The Coaty car was insured by the defendant-respondent American Indemnity Company. Plaintiffs commenced their action against the American Indemnity Company by service of summons and complaint on June 21, 1943. Thereafter, on motion of the American Indemnity Company, the Continental Casualty Company was interpleaded as a party defendant, and the pleadings were accordingly amended.
On August 30, 1943, the American Indemnity Company moved for an order for summary judgment dismissing the complaint of the plaintiffs upon its merits and the cross complaint of the defendant Continental Casualty Company. The motion for summary judgment was on the ground that plaintiffs had not brought an action against Coaty or served notice as provided by sec. 330.19 (5), Stats., within two years from the date of the collision. Plaintiffs' action against Coaty's insurance carrier was commenced within the two-year period. A summary judgment was entered December 30, 1943, wherein it was adjudged, (1) that the plaintiffs' complaint was without merit as to the defendant American Indemnity Company; (2) that there were no questions of fact presented by the pleadings, adverse examination, and affidavits in support of said motions and in opposition thereto; (3) that the plaintiffs' complaint should be dismissed on the merits as to the defendant American Indemnity Company, with costs against the plaintiffs in the sum of $146.69; and (4) that the cross complaint of the defendant Continental Casualty Company should be dismissed on the merits as to the American Indemnity Company, with costs against the defendant Continental Casualty Company in the sum of $100.
The plaintiffs appeal, and defendant Continental Casualty Company also appeals. In its decision on the motion for summary judgment, the trial court said:
"The defendant, American Indemnity Company, had issued to Arnold Coaty a policy of insurance covering the accident in question. The policy was one wherein the insurance carrier agreed to indemnify the assured against the loss sustained. After two years had expired from the happening of the accident there was no liability on the part of Arnold Coaty, it being completely barred by the statute. The cause of action was completely wiped out. There being no liability on the part of Coaty then there is no liability on the part of the insurance carrier because under its contract there is no one to indemnify. Coaty not being liable the insurance carrier is not liable."
Since the enactment of ch. 341, Laws of 1925 (sec.
There can be no doubt as to the right of plaintiffs to pursue their action against Coaty's insurance carrier alone. See *364 Elliott v. Indemnity Ins. Co.
While respondent concedes plaintiffs' right to sue the insurer of the Coaty car alone, it argues that the liability of the insurer is contingent upon the existence of a valid cause of action against the alleged tort-feasor (Coaty), and that such cause of action must continue to be in existence until final judgment is entered. This contention cannot be sustained. The answer is in the language of the statute, "the insurer shall be liable to the persons entitled to recover for the death of any person, or for injury to person or property, irrespective of whether such liability be in praesenti or contingent and to become fixed or certain by final judgment against the insured." In support of its contention respondent cites Lasecki v. Kabara,
"Recovery for injuries sustained as a result of the negligence of an operator of an automobile may, under certain circumstances, be had in an action brought against the insurance company alone but a cause of action against the insured must exist."
The case is not in point. In that case the plaintiff, an unemancipated minor, never had a cause of action against his deceased parent, therefore he had no cause of action against the parent's insurance carrier. In the instant case at the time the action was commenced plaintiffs had a cause of action against Coaty and his insurance carrier, with the right to sue either or both. They chose to bring their action against the insurance carrier alone. The action was properly commenced by service of summons and complaint on the insurance carrier within two years from the date of the accident. *365
Respondent also cites Wiechmann v. Huber,
"Under the law and the facts of this case respondent is not entitled to recover for the death of her husband against Huber, the assured, because, as conceded by all concerned, her cause of action for wrongful death against him or his estate has abated. It is quite impossible to read into the statutes [secs. 85.93 and 260.11] an intent to create a liability on the part of the insurance carrier completely dissociated from the liability of the insured."
In Hunt v. Dollar,
"We can perceive no such effect either of the statute or of the decision cited. [Oertel v. Fidelity Casualty Co.
It must be noted that the terms and conditions of sec. 85.93, Stats., are a part of the insurance policy with like force and effect as though printed in the policy, and this is true whether the policy be considered an indemnity policy or a liability policy. Of course, unless there was a cause of action against the assured Coaty at the time the instant action was commenced, there would be no right of action against his insurance carrier. Whether the plaintiffs might ultimately prevail in the litigation is not the test. The complaint alleges a cause of action which plaintiffs had a right to maintain against Coaty and his insurance carrier or against either. Such cause of action existed on the 21st day of June, 1943, the date on which this action was begun. That date was within the two-year period from the date of the accident. Further discussion seems unnecessary.
The defendant-appellant Continental Casualty Company made no objection to respondent's motion for summary judgment. It states in its brief:
"This separate appellant believes that the judgment of the trial court should be affirmed, and the only reason this separate appellant has taken a separate appeal is to preserve its cause of action for contribution in the event that the judgment of the trial court should be reversed."
By the Court. — Judgment reversed. Cause remanded for further proceedings according to law. *367