State Farm Fire and Casualty Company v. Rossini

P.2d accept a deter- compel us to does not that there is by the Commission mination STATE FARM FIRE AND CASUALTY in the evidence. a conflict COMPANY, Appellant and Cross-Appellee, judice, Katz testified the case sub Dr. In trauma, opinion the lift- in his Diamond’s, ing of trash container at Rossini, ROSSINI and Bertha Frank G. hus- heart Dr. Richter testi- caused the attack. wife, Appellees band and petitioner’s Cross-Appellants. heart attack was fied vessels, closing clogging of the caused No. 2 CA-CIV 889. vein, in- actual cause of his and that the Appeals Arizona, Court lack to the heart. farction was a of blood Division 2. However, Richter on cross-examination Dr. 18, March 1971. physical exertion would testified that Rehearing April 9, Denied 1971. heart attack and that contribute to the May 11, Review Granted may possibly accelerated it. the case of Thiel v. Industrial Commis-

In

sion, 445, 447, 711, Ariz.App. 404 P.2d

(1965), we stated: respondent duty

“It is not the In-

dustrial Commission to find that the em-

ployment conditions of the deceased were attacks’,

THE the two ‘heart cause of merely employ-

but that the conditions of Awere cause.

ment

‘Where a worker died from a heart at-

tack, activity job precipi- if his on attack,

tated the heart or accelerated

death, petitioner meets the burden proving causal connection be- employment

tween his and the dece-

dent’s In death. Revles Industrial

Commission, 352 P.2d Ariz.

this court held:

“Second, injury an industrial need death, sole cause in order dependents entitle decedent’s benefits, appears long

death as it

that the contributed to and ac- injury ’ celerated the (emphasis inevitable.”

theirs) Commission,

“Russell v. Industrial (1965).”

Ariz. 402 P.2d 561 at 564 find

We no conflict the evidence.

For the foregoing reasons the award

set aside.

STEVENS, DONOFRIO, J., J., P.

concur. plaintiffs’

and also that re-' the limit of cdvery $10,000.2 plaintiff- The facts as follows: passenger oper- a husband was in a vehicle Chandler, Tullar, Richmond, by Udall & by ated his in a son when it was involved Udall, Tucson, appellant D. B. and operated by for with a Darlene collision vehicle cross-appellee. Dixon. Neither son Miss Dixon the nor liability had Plaintiff was the insurance. Arnold, Arnold, by & T. Somers Jack named insured automobile under a valid Tucson, appellees cross-appellants. and for liability policy with insurance State Farm coverage. which included uninsured motorist HOWARD, Judge. accident, driving After the the son’s Rossini, plaintiffs and in the Mrs. privileges his were revoked because of court, complaint trial naming filed a State carry liability coverage. In need to failure Dixon, Farm and one Darlene as defend- employment, purposes of his license of for ants. (1) Two claims were asserted: the Motor he obtained forms from release Against damages the Dixon for incurred as Division, exchanged releases Vehicle and negligence alleged oper- result her in of by signed Dixon, giving with Miss her one ating a motor which resulted vehicle by signed himself and his father. another injury plaintiff-husband, (2) the and to driving subsequently privileges His were contract, Against Farm for breach of State procured liability insur- restored he after pay coverage refusal to benefits of ance. (cid:127)policy by plaintiff-husband. it to issued the coverage the Farm on State denied responsive pleading State Farm filed a grounds plaintiff that had the the violated Two, alleging alia (cid:127)Count inter that policy provisions by signing a of release plaintiff binding had executed fair and re- ob- an uninsured tort-feasor without first against leases their which barred claim approval taining written of the insurer. State Farm.1 subject provision The exclusions stipulation counsel, Pursuant of Count policy provides: insurance complaint respect 'Two of the with to cover- apply “This under: insurance does not court, age sitting was tried to the without ijc sfs jury, prior to trial on Count One. The >‘fi bodily injury (n) coverage to an U pretrial designates order several issues insured or loss re- care or of services tried, including plaintiff be whether had insured, respect coverable an with coverage uninsured motorist under insured, legal repre- to which such so, policy and State Farm if whether State pay- any person of entitled to sentative Farm to have the issues of was entitled shall, coverage ment under this liability damages the amount of arbi- and company, consent make written of pursuant policy. trated of to the terms judg- any prosecute settlement or with 'The that there un- trial court ruled was any any person or against action ment insured motorist legally may organization liable who be plaintiffs’ pursuant claim thereto was sub- *” * * therefor; parties ap- ject to Both arbitration. conditions pealed judgment, State Farm as One from person plaintiff payment any under determination event of coverage, the com- respect to ruling with arbitration the uninsured motorist .as to requisite appealed judgment separate from had 1. Dixon answer to both The filed purposes negli finality appeal counts, the rule since for included a denial amended, require- A.B.S., gence affirmatively plead alia, 53(b), inter “express ment of an determination which exonerated execution of releases complied arising with. direction” her for claims out of from the accident. pany entitled, would be purports to the extent of copy. a Xerox Is payments, proceeds such to the your signature? might settlement or result my signature right A. That there any rights recovery the exercise of but paper. I didn’t read the person against any person organ- of such or Q. piece paper Is your son legally responsible ization bodily you sign asked ? injury payment because of which the had Right. A. been made. it, Q. right? You can read trial, At a release Right. A. pertinent into admitted evidence. Q. part your You didn’t it read son release is as because follows: just you, sign told ‘Please this, Dad. ARIZONA HIGHWAY DEPARTMENT get I my need this li- driver’s MOTOR VEHICLE DIVISION ? cense.’ RELEASE OF LIABILITY A. That is all. That is all. TO: MOTORVEHICLE DIVISION F.R. Case No. you any- Q. any Did money receive or Financial Responsibility 8117060 Service 11207060 thing your like that of because 2324 N. 20th Ave. Accident signing this release? Phoenix, Arizona 85009 Date (I) (We) good undersigned, valuable No, sir, and con- A. I didn’t. sideration, do release hereby Dixon, Q. Miss girl that was driv- DARLENE EVAN DIXON car, ing bring the other did she ever (Name released) being Party any paper you to- and ask around 2309 North Ralph_ sign it at all ? Address) (Complete No, of and any A. from and all claims sir. and on for/or occurring account of a motor vehicle accident on or August you Q. anything Did with do about day ll 1967 in which the un- dersigned were involved your giving the or did son release paper; piece do that to get FRANK G. ROSSINI SR. release) (Signature giving of party you go get did and down it ? 933 W. Drexel Rd._ my just He took it house. A. No. (Address) just my He it took house and sign he told here me to because plaintiff, questioned The when about the wanted his driver’s license. release, execution of this testified: “Q. After Q. A. Yes. paper place, how your driver’s license? Do you son for him so he could the accident remember when that ask long you after the sign occurred accident, piece get took did his Q. Other than Q. A. Yes. ^[*] Is have indicated address your H* home address 933 your writing ^[*] name your W. ^[*] Drexel your signature, ? also? ^[*] which Road, that ^[*] you. remember, you long do after how right.” A. That’s it accident was ? Although appeared the document month, guess. just A. About I He notarized, plaintiff signed denied had he paper took the out to house and also- notary public. before Plaintiff sign told me read here. I didn’t be- signed that he document testified paper. I didn’t I know what his could cause son asked him so he writing. him get driving privileges his restored to that, get it, in- Q. you Let me although to look at what is he read he didn’t just purpose. marked State’s A him Exhibit tended to use it for

239 Johns, (Ky.App. 587 377 S.W.2d dealings Coles v. questioned his with about When Badon, ; (La. 109 1964) Haley So.2d Dixon, that she Miss testified App.1957). and asked had come to his home her father not do so. sign a but he did him to release able to read Rossini was discussing the docu- he denied ever Also reading the release signed he when Dixon bearing signature his with Miss ment knowledge of it, charged he was with the agreement having bargain made or or precluded at its contents. He was her. with he tacking grounds that did it on the testified that he had asked son read import, the failure to its since know sign father to the release because “I wanted artifice not due to some the release money my needed more get license and to, of, chargeable fraud nor was or He since I was financial also trouble.” Honeycutt, party Cowart v. released.

testified that after his father had Corbett (1962); S.E.2d N.C. release, notary public he took it to a Bonney, 202 Va. S.E.2d requisite He obtained notarization. ; Mutual Fire Millers In (1961) Morris v. signature identified his father’s re- on Company Texas, 343 S.W.2d surance lease and “Darlene stated name Release (Tex.Civ.App.1964); 76 C.J.S. Evan was the Dixon” inserted on release 25(b). § he had form when it notarized. Consequently, when State Farm purpose excluding provision The aof release, ad into the introduced evidence liability policy of the insurer under the Rossini, by it sus mittedly executed Mr. where insured makes a settlement with proving a de tained its burden of person injuries for liable his however, position, fense. Rossini’s Mr. insurer, the consent of the has been stated lack for the release was invalid was by protection a courts number of to be for seeking to of Since he was consideration. subrogation rights against of the insurer’s release, his was operation avoid the uninsured motorist assurance invalidity. proving of its the burden no or settlement will be obtained Loan Savings and Wagoner Mountain v. rights in which of the insurer in 1962); Assoc., (10th Cir. F.2d 403 311 adequately protected. Volkswagen Insur (Mo. Elliston, 285 369 Dawes v. S.W.2d Taylor, Company ance v. 201 624 So.2d Thies, Ill.App.2d 35 App.1963); Hudson v. ; (Fla.App.1967) Mills Farmers Insur v. 189, (1962). N.E.2d 182 760 124, Exchange, Cal.App.2d ance 231 41 Cal. court, deciding the trial in The ; Rptr. (1964) 650 Allstate Insurance Com plain question in of of favor Charneski, pany 325, v. N.W. 16 Wis.2d 114 tiffs, release was apparently found that the question 2d (1962). 489 has been No supported binding. A release must be not respect validity raised with of this Burrows, 258 by v. consideration. Sloan release, provision.3 It has a been held that Lilenquist Mo (Mass.1970); 303 N.E.2d purposes allowing for of the uninsured mo Monk, tors, 390 P. Inc. v. 64 Wash.2d requirements the Fi torist to meet Clack, ; 43 Ariz. Maine v. (1964) 2d 1007 Responsibility a nancial Law constitutes Release 76 (1934); 33 P.2d 283 operates an in “settlement” to absolve C.J.S. consideration, it supported 10. If not liability uninsured § surer of under the mo Fire and Cas binding. is not Southwestern coverage, notwithstanding torist the motives Atkins, (Tex. ualty 892 v. 346 S.W.2d Co. prompting Amer execution of release. Inc., ; su Lilenquist Motors Civ.App.1961) Fidelity Company Fire Insurance v. ican ; person third Richardson, to a 1966) pra. Although benefit 486 (Fla.App. 189 So.2d Company, any problem presented Insurance S.W.2d as to the tual 3. Nor is (Mo.App.1966) ; withholding v. Accident Oren General of con- effect of State Farm’s Co., So.2d 581 Fire Life Assurance of this & so as to constitute a waiver sent (Fla.App.1965). Kisling provision. g. M. Mu- E. A. v. F. may consideration, be sufficient the benefit that Mr. Rossini executed the release with- must be promise. the inducement for the out intention to release his son and Kam Ming Ho, Chin Chun Kam merely perpetrate v. Hee a fraud on the Motor Haw. (1962); 371 P.2d 379 Restate- Department. Vehicle presented The facts ment, 75; Contracts Con- Williston on here § are in marked contrast to those in tracts, 113; 3rd Ed. Haley Badon, Contracts supra. § C.J.S. § Haley, In plaintiff neither the nor the and, defendant liability carried insurance only presented The evidence to the prevent order suspension driving of their court, believed, trial apparently privileges, agreed to file certificates to was that no upon benefit was conferred they effect had released each other Mr. Rossini request or another at his nor releases, damages. from all for legal was a detriment to Miss Dixon bar Subsequently, were executed and filed. gained case, being him. Such plaintiff damages, filed suit for the defend- we find no error as to the deter defense, ant asserted the release mination. action was dismissed. The however, argues, actually State Farm contended that his release did differences, permit compromise amount Rossini to his avoid the release admittedly signed by him, merely with the defendant but to enable for the his son get license, purpose Department leading driver’s of Pub- would Safety believing contravention of the lic he Responsibil Financial into had released ity Badon, liability. Law. Haley In the case the defendant from The Louisi- supra, appeals validity appellate Louisiana ana court court sustained the indi if, cated counsel, that by as the mutual releases and declined hearken intimated to the mutual plaintiff’s solely releases were executed to the claim that he was “not to forestall suspension the the from releasing revocation or serious” about defendant parties’ the licenses, liability. such conduct would be public safety inimical to the nullify the classify cannot Mr. Rossini’s conduct We purposes for Safety Responsibil which the say, plaintiff Haley that the with ity Law was enacted. The court stated: do, us that he as State Farm would have the Financial Re- intended to contravene parties “If the can be said to have been sponsibility evidence reveals Law. The guilty of such wrongdoing, it would con- only paper for his son that he public travene policy the of this state for license. We get his so he could driver’s judicial courts to lend aid and com- con- Rossini’s decline to denounce fort either of them. In such circum- and deceit constituting such fraud duct as stances, the law will not itself concern any If there was judicial to bar relief. as differences, with their but would leave pass upon, it not duplicity, a matter we do parties position in the it finds them.” was not his. 98 So.2d at 112-113. agree challenge We with the trial Farm court’s State Plaintiffs principal purpose ruling set Respon- that State Farm was entitled to the Financial sibility protection pay paid Law is under the medical public of the off sums out using highways limiting coverage, thereby plaintiffs’' hardship ments financial might recovery $10,000. result from no more than the use of total auto- by concedes, mobiles financially irresponsible agree, that and we drivers. State Farm Transportation Wade, Ins. Farmers. Co. v. the recent decision of Bacchus v. 106 Ariz. 269, ; P.2d 264 (1970) Group, Ariz. P.2d Kill- Ins. Schecter v. ingsworth, issue, dispositive requiring 93 Ariz. of this (1970) 380 P.2d is (1963). However, to the setoff nothing we find in the as reversal of record of the case at bench which indicates allowances.

Plaintiffs’ other contention is that not extend scope of the arbitration policy provision requiring agreement submission beyond import fair of its of the uninsured motorist claim to arbitra impressed argu- terms. Nor are we tion cannot be invoked Farm ment clogged State courts will be with it coverage. agree. “piecemeal” since denied litigation. Employers' We do not See Fire Garney, Co. v. 348 Mass. Ins. provision policy The arbitration of the 205 N.E.2d 8 (1965). provides, pertinent part: subject provision, Under the not is “10. person making Arbitration. If right damages recover from State claim company under and the U Farm which is made but arbitrable agree person legally do not that such is right damages to recover from the unin- damages entitled to recover from the motorist, sured Miss Dixon. The words operator owner or of an uninsured auto- upon per- “Matter or matters which such bodily injury mobile because to the son company agree” in the do insured, agree or do not as to the amount provision clearly arbitration refer payable hereunder, shall, party then each mentioned, previously namely, two issues upon either, written demand of select right damages from the recover competent and disinterested arbitrator.” operator owner or of an uninsured auto- At the outset we feel com- constrained damages. mobile and the amount of such ment on the uniformity lack of in decisions construing provision, Farm’s to the State arbitrability particular of a issue involv- plaintiffs dependent upon coverage is un ing an uninsured motorist endorsement.4 policy, der the plaintiffs' as well as on the Some courts take the view all issues legal right damages from an uninsured arising under the uninsured motorist cover- motorist. or not the Whether exclusion age are to be submitted to arbitration. See provision applicable A,L.R.3d Anno. 29 3. Others hold clearly § issue therefore not only the issues of the liability of the purview pro within the the arbitration other motorist and damages the amount of policy. vision of the The trial court’s resulting therefrom subject to arbitra- ruling respect with arbitration was tion while relating issues coverage under therefore correct. judicial are for determination. provide judgment is modified seq. 5 et Ibid. § plaintiffs up that the are entitled to recover In the cases of Volkswagen the limits of the motorist uninsured Ins. Co. v. Taylor, supra, respects and and all in other Visselli v. American Fidelity Co., judgment 155 Conn. is A.2d affirmed. (1967), it recognized was that the defense HATHAWAY, J., concurs. violating a clause prohibiting settlement without the insurer’s consent an McGUIRE, Judge, (specially concur- arbitrable issue. ring). view, We legal believe that the in all the latter I to concur am unable majority opinion issues are not but do reasoning within the in the scope of the provision, pretrial arbitration in From the more concur the result. sound. Parties agreement transcript testimony to an it arbitration and the order only validity bound re- clearly appears arbitrate issues which that the by the clear language com- agreement, their lease as to the defendant insurance they agreed Specific pany put to arbitrate. in issue Western and tried. Casualty Surety & requested nor Strange, findings Co. were not Mich. of fact App. presump- (1966). they N.W.2d 572 is a We can- were made and there Coverage, Widiss,

4. See UninsuredMotorist 6.17. § judge every tion that the trial found fact

necessary support insofar reasonably this be inferred from can majority evidence. As mentioned in

opinion appeared it re- had sign requested

fused a release when signed Dixon document was,

knowing what and that the docu- it presented

ment was to him his son who not even filled in Dixon’s name when

had

his father it. To this is added greatly advantage

fact that both get Dixon the son signature greatly

father’s to his dis-

advantage give it. unusual Without

circumstances of this or nature I similar judgment. not sustain the

would Judge

NOTE: HERBERT F. KRUCKER requested

having that he be relieved matter, Judge

consideration JOHN A. McGUIRE was to sit called participate

stead the determination

of this decision.

482 P.2d 491

STATE COMPENSATION FUND and Mc Corporation Culloch Oil of Califor nia, Inc., Petitioners, DELGADILLO,

Antonio Romero widow of Margarito Delgadillo, deceased, R. Respondent Claimant, Arizona,

The Industrial Commission of Respondent.

No. 1 CA-IC 449. Appeals Arizona, Court of Division Park, Counsel, by Ron- Robert K. Chief Department A. Meitz, Phoenix, petitioners ald M. March 1971. Compensation and McCulloch State Fund Rehearing Denied March California, Corporation of Inc. Oil Wahl, counsel, L. Jr., Donald William C. Phoenix,

Cross, Counsel, Former Chief Arizona for Commission of Industrial respondent.

Case Details

Case Name: State Farm Fire and Casualty Company v. Rossini

Court Name: Court of Appeals of Arizona

Date Published: May 11, 1971

Citation: 482 P.2d 484

Docket Number: 2 CA-CIV 889

Court Abbreviation: Ariz. Ct. App.