Spear v. Monk

23 Pa. D. & C.2d 685, 1961 Pa. Dist. & Cnty. Dec. LEXIS 379

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: March 3, 1961
• Docket: No. 5; no. 589
• Status: Published

Opinion

Reimel, J.,

This matter comes before the court on the preliminary objections of additional defendants to defendant’s complaint.

Plaintiff in his complaint demands damages for the failure of defendant, who is an insurance broker, to renew a certain policy of insurance issued by the Travelers Insurance Company as a result of which plaintiff was not covered by insurance when his premises were damaged by water. Defendant has joined additional defendants on the basis that they are alone liable, or are jointly and severally liable or are liable over to defendant.

The Pennsylvania Rules of Civil Procedure permit the joinder of any person not a party who may be alone liable, or liable over to defendant on the cause of action declared on or jointly and severally liable thereon with him: 4 Anderson Pennsylvania Civil Practice Rule 2252.

Plaintiff’s action against defendant is for his failure to perform an act, as a result of which plaintiff has sustained a loss. Defendant’s complaint against additional defendants pleads the existence of an oral binder of insurance and a contract of insurance which furnished coverage to plaintiff.

Defendant’s complaint does not aver that the cause of action for which plaintiff seeks relief is the same. Plaintiff alleges that defendant failed to take the action necessary to renew the insurance. Defendant alleges that additional defendants failed to issue the policies or canceled the policy and that there were outstanding oral binders affecting insurance.

The claim of defendant is not predicated upon the cause of action declared on by plaintiff. The contracts of insurance, if any existed, are separate and distinct from the contract between plaintiff and defendant. Therefore, the court enters the following order

Order

And now, on March 3, 1961, the preliminary objections of additional defendants are sustained. The complaint of defendant against additional defendants is dismissed.