12 N.W.2d 59 | Wis. | 1943
United States Guarantee Company, plaintiff and respondent, and Liberty Mutual Insurance Company, defendant and appellant, were insurance carriers of Jos. Schlitz Brewing Company. Brant Nielsen, Inc., entered into a contract to paint certain elevators on the premises of Jos. Schlitz Brewing Company, and while Walter Gaurkee, its employee, was on a ladder engaged in painting an elevator, he was severely injured by reason of a tractor colliding with the ladder. The tractor was owned by Jos. Schlitz Brewing Company, and was operated by Fred Conrad, one of its employees. Gaurkee sought and received workmen's compensation from his employers. By virtue of permission contained in sec.
It is undisputed that if no other insurance had been in effect except defendant's policy, it would have been liable for the entire damages in question. With an additional policy in effect, defendant now seeks to avoid contribution, claiming that plaintiff's policy is specific as to coverage and that defendant's policy is general and the liability of the specific policy is primary, thus releasing defendant. Plaintiff's policy covered all motor vehicles of assured wherever used, including the one that caused this injury. Assured owned and operated a large number of motor vehicles in the conduct of its business. Defendant's policy covered hazards that arise when members of the public come upon assured's premises to do business with it or by the company's invitation, which included Gaurkee, the injured person, and was limited to injuries occurring on the specific premises or public highways immediately adjoining. Defendant's contention is not sound. The purpose of each contract was to cover the loss in question. Both contracts were general for the type of losses covered. Defendant relies on Trinity Universal Ins. Co. v. General Accident Fire Life Assur. Corp.
Defendant's policy provided that no action shall lie against it unless the loss has been definitely determined, (a) by final judgment after trial of the issues in an action against the assured, or (b) by agreement of the parties made with the consent of the company. It is claimed that none of these conditions have been complied with, and the action therefore cannot lie. The Gaurkee action was brought to trial and settlement made the second day of the trial. The settlement was approved by the court and order was made for the distribution of the funds as provided by sec.
It is next contended that when plaintiff paid the full amount of damages to Gaurkee, the payment made by it in excess of its proportionate share as provided in the "other insurance" clause in the policy was voluntary and no recovery can be had. In examining the facts under which this claim is made, we find that defendant, under the terms of its contract, was required to defend assured in the Gaurkee action. Its contract provided as follows:
"To defend in the name of and on behalf of the assured any suits which may at any time be brought against the assured on account of such injuries not herein excluded, including suits alleging such injuries and demanding damages *322 therefor, although such suits, allegations or demands are wholly groundless, false or fraudulent."
This part of the contract was effective even though defendant may have disclaimed liability for damages if any were recovered. If it desired to negative any waiver of its rights by so defending, all it had to do was notify the assured it was not waiving any of its rights or defenses in respect to coverage or its liability. Hickey v. Wisconsin Mut. Ins. Co. (1941)
Defendant was requested to defend the Gaurkee action and refused to do so. The assured was fortunate enough to have other insurance and thus it was not required to assume the defense itself. The plaintiff by and under its contract with assured agreed "to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages." In paying the damages to Gaurkee it performed the terms of its contract with the assured, as the defendant had breached and violated its contract for a like liability. By the terms of its policy plaintiff was subrogated to the rights of the assured which, under the decisions, is a substitution of one person in the place of another with reference to a lawful claim or right. It is a device adopted or invented by equity to compel the ultimate discharge of a debt or obligation by one who in good conscience ought to pay it. Leonard v. Bottomley (1933),
By the Court. — Judgment affirmed.