Continental Casualty Co. v. Ocean Accident & Guarantee Corp.

Superior Court of Delaware

Continental Casualty Co. v. Ocean Accident & Guarantee Corp.

209 A.2d 743, 58 Del. 338, 8 Storey 338, 1965 Del. Super. LEXIS 66

CourtSuperior Court of Delaware

DecidedApril 22, 1965

Docket122

StatusPublished

Cited by13 cases

This text of 209 A.2d 743 (Continental Casualty Co. v. Ocean Accident & Guarantee Corp.) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Continental Casualty Co. v. Ocean Accident & Guarantee Corp., 209 A.2d 743, 58 Del. 338, 8 Storey 338, 1965 Del. Super. LEXIS 66 (Del. Ct. App. 1965).

Pincite

Opinion

LYNCH, Judge.

*341 It appears from the complaint that there was a collision on July 26, 1959 on the Kennett Pike in Christiana Hundred, between a Volkswagen panel truck, owned by Rental Company and leased to Richards, Inc., and driven by Leonard Richards, Jr., now deceased, and an automobile driven by defendant Hamon, in which Mrs. Hamon and the defendants Sentmans were riding, resulting in the serious personal injuries of Mrs. Hamon and the Sentmans. Mr. Richards was killed in the collision.

Continental had issued a policy of automobile liability insurance to Rental Company which covered liability of the lessees of its motor vehicles. The complaint charges Leonard Richards, Jr. and/or Richards, Inc. had a policy of automobile liability insurance with defendant Ocean, which was in effect on the date of collision; it was further alleged that Ocean has denied coverage and refuses to defend litigation brought by defendants Mrs. Hamon and the Sentmans against the Richards’ Estate and Richards, Inc. Plaintiff, Continental, also claims subrogation rights as against Ocean for any liability payments it has had to make to the injured defendants. Ocean asks the court to declare—

“(1) The existence and extent of coverage of the potential liabilities of Executrix and Richards, Inc. to Hamon and Sentmans under policies issued to Executrix and Richards, Inc. by Ocean.

“(2) The duty of Ocean to defend against such potential liabilities.

“(3) The existence and extent of coverage of the potential liabilities of Executrix and Richards, Inc. to Hamon and Sentmans under the policy issued by Continental to Rental Co.

“(4) The duty of Continental to defend such potential liabilities.

“(5) Whether or not the claims against Rental Co. should be dismissed as provided in 21 Del. C. Sec. 6102(d).

*342 “(6) The ratio in which Continental and Ocean should contribute to any future judgment in favor of Hamon or any of the Sentmans in the above cited actions.

“(7) Such other and further relief as the Court shall deem proper.”

Ocean’s answer denied that allegation in the complaint which read—

“9. At the time of the accident Leonard Richards, Jr. and Richards Inc. had automobile liability insurance policies with Ocean which cover the claims, set forth in the above actions against Executrix and Richards, Inc., and which require Ocean to defend on behalf of Executrix and Richards, Inc. against said claims.”

Its answer, however, otherwise expressly or impliedly admitted the other and remaining allegations of the complaint.

Continental filed requests 6 under Rule 36, Del. C. Ann. directed to Ocean, requesting it to admit that it had issued Policy No. AB 51 — 02—4187 to Leonard Richards on August 16, 1958, covering a 1953 Chevrolet Bel-Air Convertible Coupe, Serial No. BO 17762,2 Dr. Sedan, although this automobile was owned by Leonard Richards, Inc. The requests asked Ocean to admit this policy was in full force and effect on July 26, 1959 — the date of the collision. Ocean filed no answer or response to these requests for admission.

The Rules of Civil Procedure of this Court (Rule 36) provide, among other things, that—

*343 “Each of the matters of which an admission is requested shall be deemed admitted unless * * * the party to whom the request is directed serves upon the party requesting the admission, either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters, or (2) written objections * * *.”

Ocean did neither, so the court, for purposes of the motion, considers (1) that the policies were issued; and (2) they were in effect on the date of the collision, Lowden v. McAndrews, D.C., 2 F.R.D. 36 (1941) and United States v. Jefferson Trust & Savings Bank, 31 F.R.D. 137 (1962).

Continental submitted a certified photostat copy of an application for a title to the 1951 Chevrolet 4 Dr. Sedan, which was signed June 30, 1959, showing title was taken in the name of Leonard Richards, Inc.

Ocean, however, as part of its discovery, submitted an affidavit made by an officer of Lawson Cooper Company, Ocean’s Agent — the pertinent portions of which are:

“* * * that he is the President of Lawson Cooper, Inc., the agent through which Ocean Accident and Guarantee Corporation, Ltd. policy No. AB 51 — 02—41—87 referred to in the plaintiffs brief in support of its motion for summary judgment, was written; that on some date between July 6,1959 and July 26,1959, the date of Leonard Richards, Jr.’s death, Lawson Cooper, Inc. received from said Leonard Richards, Jr. a request for cancellation of said policy, a copy of which request is attached.”

The so-called request is in the following form:

*344

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