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November 20, 1968


The opinion of the court was delivered by: Will, District Judge.


This is an action for damages for injuries sustained in an automobile accident. At the time of the accident, defendant Bluth was insured under an automobile liability insurance policy issued by Security Insurance Company. This policy covered Mr. Bluth in the maximum amount of $25,000.00 for personal injuries sustained in one occurrence by one person. The policy also included a promise by Security to provide legal defense for Mr. Bluth as to claims payable under the terms of the policy.

With respect to its obligation under the policy to defend Mr. Bluth against claims presented in this suit, Security has moved to deposit its draft in the amount of $25,000.00 with this court on behalf of the defendant, to be applied to the claims of Joan Landando, thereby exhausting the monetary limit of Security's insurance of defendant Bluth as to claims made as a result of her injuries. Security also seeks an order of this court relieving it of any further obligation to defend Raymond Bluth against any claims of Joan Landando for personal injuries.

The insurance company contends that the opinion of the Seventh Circuit Court of Appeals in Denham v. La Salle-Madison Hotel Company, 168 F.2d 576 (7th Cir. 1948), requires that Security's motion be granted. Defendant Bluth disputes the wisdom of Denham and cites numerous cases to support his position, but seems to concur in Security's view of what the Denham decision would dictate in this case.

The only general statement in Denham directly relevant to the instant motion, however, is that each case involving a promise to defend must be considered independently on the basis of the particular language in the contract at issue, and contrary to Security's assertion that the Denham court was "construing the same policy provisions now before this court", the relevant language here involved is considerably different than the language in Denham. The insurance policy in Denham provided,

    It is further agreed that as respects insurance
  afforded by this policy, Underwriters shall —
    (1) Defend the Assured in his name and behalf
    any suit against the Assured alleging such loss
    and seeking damages on account thereof, even if
    such suit is groundless, false or
    fraudulent * * *. 168 F.2d at 584 (italics

The Court of Appeal's opinion as to this obligation to defend reads in part as follows,

    Numerous cases are cited wherein the courts
  have considered a similar provision. It would
  serve no useful purpose to enter into an analysis
  of such cases as they all depend upon the
  phraseology of the particular provision under
  consideration. By analogy, however, they are of
  no benefit to the defendant's contention. True,
  paragraph (1) gives some color to the defendant's
  argument, but that paragraph is limited to the
  phrase which proceeds it, "as respects insurance
  afforded by this policy." Upon plaintiff's tender
  of $10,000, its liability for the payment of
  losses was extinguished. It was only obligated to
  defendant "as respects insurance afforded by this
  policy," and there being no further insurance
  afforded, we are of the view that its obligation
  to defend

  was likewise terminated. Defendant's theory would
  produce the incongruous situation that plaintiff
  would have a continuing obligation to defend,
  notwithstanding its obligation to pay has been
  exhausted. We are of the view that no such
  liability was intended by the provision in
  question and that it cannot reasonably be so
  construed. Id. at 584.

The essential thrust of Denham is plainly that a court should consider the specific language in the particular contract at issue. It is also clear that in Denham the court focused on the phrase, "as respects insurance afforded by this policy", and found its only possible meaning to be that once payment up to the limit of coverage was made, i.e., "afforded", no further obligation to defend rested with the insurance company.

Although Security repeats the above phrase as though it were present in the instant contract, it is not here present. The obligation to defend in this case is framed as follows in Mr. Bluth's policy with Security,

  — PROPERTY DAMAGE LIABILITY: To pay on behalf of
  the insured all sums which the insured shall become
  legally obligated to pay as damages because of:
    A. bodily injury, sickness or disease including
    death resulting therefrom, hereinafter called
    "bodily injury", sustained by one person; B.
    injury to or destruction of property, including
    loss of use thereof, hereinafter called
    "property damage";
  arising out of the ownership, maintenance or use
  of the owned automobile or any non-owned
  automobile, and the company shall defend any suit
  alleging such bodily injury or property damage and
  seeking damages which are payable under the terms
  of this policy, even if any of the allegations of
  the suit are groundless, false or fraudulent; but
  the company may make such ...

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