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Continental Cas. Co. v. Fleming

MARCH 6, 1964.

CONTINENTAL CASUALTY COMPANY, A CORPORATION, AND NEW HAMPSHIRE INSURANCE COMPANY, A CORPORATION, PLAINTIFFS-APPELLEES,

v.

WILLIAM F. FLEMING, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Coles County; the Hon. ROBERT F. COTTON, Judge, presiding. Affirmed.

CROW, P.J.

This is an appeal by the defendant, William F. Fleming, from two judgments, — one in favor of the plaintiff Continental Casualty Company for $570.48 and one in favor of the plaintiff New Hampshire Insurance Company for $570.48. After the plaintiff Continental Casualty Company filed its complaint, the plaintiff New Hampshire Insurance Company intervened and filed its complaint also against the defendant. Motions to dismiss were denied, and the defendant answered, denying most of the substantial allegations thereof, but not denying the allegations that the plaintiffs were corporations authorized to do business in Illinois. A trial before a jury was had, but at the close of all the evidence the court directed verdicts in favor of the plaintiff Continental Casualty Company for $570.48 and in favor of the plaintiff New Hampshire Insurance Company for $570.48. Judgments were entered thereon. The defendant's post trial motion was denied and this appeal followed.

Both plaintiff insurance companies had paid a single collision damage loss on the same insured vehicle arising out of the same accident. Thereafter the plaintiffs ascertained that the defendant had been paid by both of them for the same loss and each demanded a refund from the defendant, which the defendant refused. It is not denied that the two policies of insurance were in force at the time on the same vehicle. The court allowed a recovery for each plaintiff in the foregoing amount of $570.48, which was computed after giving the defendant credit for one-half the applicable premiums paid, and which judgments, in effect, require the defendant to refund to each plaintiff one-half of the smaller of the two payments, namely, that of the Continental Casualty Company, which was for $1,316.97 (which check the defendant had kept), and which judgments, in effect, required the plaintiffs to pro rate or share the larger of the two payments, namely, that of New Hampshire Insurance Company, $1516.97, which was the amount of insurance proceeds actually ultimately paid and delivered by check to the repair man who repaired the damaged car.

The plaintiff Continental Casualty Company in its complaint, as amended, alleged that it was a corporation authorized to do business in Illinois and that on October 4, 1959, it issued a policy of insurance to Columbia Machine, Inc., which, inter alia, covered a certain 1959 Chrysler Crown Imperial automobile owned by the defendant, William F. Fleming (an employee of Columbia Machine, Inc.); that the coverage, in part, included $100 deductible collision insurance; that the defendant was involved in an automobile accident on January 12, 1960, and damages to his automobile were sustained in the amount of $1416.97; that the automobile was repaired; and that upon receipt of a claim by the defendant for reimbursement the plaintiff paid the defendant $1316.97 (being that loss, as so reported, less the $100 deductible). That plaintiff further alleged that at the time of the occurrence the defendant also had a policy covering the same automobile, with $50 deductible collision insurance, with New Hampshire Insurance Company; that on receipt of a claim by the defendant to New Hampshire Insurance Company for the same damages to the same automobile arising out of the same occurrence, a duplicate payment was made to the defendant by the New Hampshire Insurance Company of $1466.97 (being the loss, as reported to that company, less the $50 deductible thereunder); and that Continental had no knowledge of the New Hampshire policy at the time Continental paid the defendant. The plaintiff Continental alleged its $1316.97 payment was made through mistake, the defendant was not entitled thereto, and, as amended, prayed judgment for $658.48 (one-half of the $1316.97 payment of Continental).

The complaint, as amended, by the intervening plaintiff New Hampshire Insurance Company alleged, in substance, that it was a foreign corporation authorized to do business in Illinois; that on August 1, 1959, that company issued its policy of insurance to the defendant, William F. Fleming; that the policy insured a 1959 Chrysler Crown Imperial four door hardtop, which was owned by the defendant; that he was and is an employee of Columbia Machine, Inc.; that the policy insured the vehicle against collision and extended coverage and, in part, included $50 deductible collision insurance; on January 12, 1960, the automobile was damaged in an accident in the amount of $1516.97 and was repaired; that the defendant made a claim against that company for reimbursement of the damages and the company paid the defendant $1466.97. The plaintiff New Hampshire further alleged that at the time of the occurrence and for a period of time theretofore the defendant, through his employer, Columbia Machine, Inc., was covered by a fleet policy of insurance issued by Continental Casualty Company, covering the same vehicle, with $100 deductible collision insurance, and that as a result of the occurrence the defendant made claim to the Continental Casualty Company in the amount of $1316.97; that the defendant has been paid duplicate payments arising out of the same accident, the same damages, and the same transaction by the plaintiff Continental Casualty Company and the plaintiff New Hampshire Insurance Company; that New Hampshire had no knowledge of the existence of a policy on the vehicle with Continental; and that the $1466.97 paid by the intervening plaintiff to the defendant and received by him was through mistake and that the defendant was not and is not entitled thereto. The plaintiff New Hampshire prayed, as amended, for a judgment of $658.48 (one half the $1316.97 payment of Continental), which was the smaller of the two payments.

It appears from the evidence that prior to August 1, 1959 the defendant carried a policy of insurance, including $50 deductible collision coverage, on his automobile with the plaintiff New Hampshire Insurance Company. He said he did not know the name of the insurer. The renewal premium was paid in January 1959. He was an employee of Columbia Machine Co. The defendant was notified sometime shortly after January, 1959, by his employer that they had insured his automobile (and others) under a fleet policy (with Continental Casualty Co.) and had deducted the premium of $150.93 from his monthly commissions. The defendant said he did not know who that insurer was either. The defendant permitted the agent of New Hampshire to renew that company's policy, making it applicable to a newly purchased auto, — the one involved in the later accident. Knowing that he had coverage with New Hampshire, he wrote his employer May 28, 1959, requesting information as to the type of coverage that they had placed on his car. By a letter signed by an office secretary of his employer, he was advised that he had bodily injury, property damage, medical pay, comprehensive, and theft insurance in certain amounts under the company fleet policy, and what the premium was. No mention was made in that letter of collision coverage. The defendant testified that he did not then know that the company fleet policy obtained by his employer from the Continental Casualty Company also included collision coverage and that he was hence doubly insured as to collision damages to his car. The car was damaged in an accident January 12, 1960, while both policies were in effect. The cost of repairs as determined by New Hampshire Insurance Co. was $1566.97. That company paid the defendant $1516.97. Continental Casualty Co. paid the defendant the loss, as determined by them, less a $100 deductible, or $1316.97. The defendant endorsed the New Hampshire $1516.97 check to the repair man, and the defendant kept the Continental $1316.97 check.

The New Hampshire Insurance Company policy contained an "other insurance" clause relative to physical damages, — collision coverage, as follows, so far as relevant:

"Other Insurance. If the insured has other insurance against a loss covered by Part III of this Policy, the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability of this policy bears to the total applicable limit of liability of all valid and collectible insurance against such loss; . . ."

The Continental Casualty Company's fleet policy issued to Columbia Machine Company, Inc. for the benefit, in part, of the defendant also contained an "other insurance" provision relative to collision coverage as follows:

"Other Insurance. If the insured has other insurance against a loss covered by this endorsement the Company shall not be liable under this endorsement for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss."

The defendant's March 9, 1960 sworn proof of loss to New Hampshire claimed $1516.97, said the actual loss was $1566.97, and included this:

"The total insurance covering perils above stated, including this policy and any other policies (whether valid or not), binders or agreements to insure, was at the time of said loss . . . CV50.00 Ded."

The defendant's February 5, 1960 sworn proof of loss to Continental claimed $1316.97 and included this:

"The actual cash value of the property described by aforesaid policy, the actual amount of loss or damage, the total insurance thereon at the time of said loss and damage as shown by annexed schedule, amount named in this ...


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