Marley v. Bankers Indemnity Ins.

8 R.I. Dec. 273

• Court: Superior Court of Rhode Island
• Decided: April 22, 1932
• Docket: No. 87983
• Status: Published

Opinion

BLODGETT, J.

Heard upon plea in abatement.

Action of debt on judgment.

Judgment was obtained by plaintiff against one Beatrice Coben for $1,500 and costs $46.80 for damages resulting from a collision of two automobiles, upon wbicb judgment no amount bas been paid.

Beatrice Coben beld a policy of defendant insurance company, in tbe usual form of sucb policies, agreeing therein to indemnify said Coben for any damages assessed against ber up to $7,600.

Tbe action is brought under See. 7 of Chapter 268 of tbe General Laws of 1923.

Tbe plea raises two questions:

(1) Whether or not debt on judgment is the proper form of action.

(2) Whether or not a return of “non est inventus,” upon an execution issued in such action against Cohen, is necessary after a recovery of judgment as aforesaid, before an action can be brought against tbe insurer.

Sec. 7, Chapter 268, General Laws 1923 is as follows:

“Every policy hereafter "written insuring against liability for property damage or personal injuries or both, other than payment of compensation under Chapter 92 of tbe General Laws, shall contain provisions to tbe effect that tbe insurer shall be directly liable to tbe injured party and, in tbe event of bis death, to tbe party entitled to sue therefor, to pay him tbe amount of damages for which sucb insured is liable.

“Such injured party, or, in tbe event of bis death, tbe party entitled to sue therefor, in bis suit against tbe insured, shall not join tbe insurer as a defendant.

“If, however, tbe officer serving any process against the insured shall return said process “non est inven-tus,” tbe said injured party, and, in the event of bis death, tbe party entitled to sue therefor, may proceed directly against tbe insurer.

“Said injured party, or, in tbe event.of bis death, tbe party entitled to sue therefor, after having obtained judgment against the insured alone, may proceed on said judgment in a separate action against said insurer; Provided, however, that payment in whole or in part of sucb liability by either tbe insured or tbe insurer shall, to tbe extent thereof, be a bar to recovery against tbe other of tbe amount so paid; and provided further that in no case shall tbe insurer be liable for damages beyond the amount of tbe face of tbe policy.

For plaintiff: A. A. Arabian, Edward H. Ziegler. For defendant: Fergus J. McOsker.

“All policies made for the insurance against liability described in this section shall be deemed to be made subject to the provisions hereof, and all such policies inconsistent herewith shall be void.”

Up to the conclusion of this section providing for the repeal of acts inconsistent therewith, it will be noted that same consists of a series of sentences and each is followed by a period mark.

In the first sentence, it is the evident intention of the legislature to provide a clear and summary remedy against an insurer.

The second sentence provides that the insurer shall not be joined in an action against the insured.

The third sentence provides that the insurer can be proceeded against directly in case the officer serving any process shall return same “non est in-ventus.”

The fourth sentence provides that any injured person after having obtained judgment against the insured may proceed in said judgment in a separate action against the insurer.

It would seem to the Court that it is plain that the intention of the legislature was to provide a summary action against the insurer after the person injured had obtained judgment against the insured.

In fact, our Supreme Court in Miller vs. Metropolitan Ins. Co. of New York, 50 R. I. 166, at page 170, uses this language in construing this section:

“It was to enable collection to be made from the indemnitor even if the insured had not been found, or had not after a recovery of a judgment paid the same.”

Plea in abatement denied.