
    Frank KINLER v. E. J. ROSS et al. v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY et al.
    No. 5690.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 1974.
    Rehearing Denied June 6, 1974.
    On Rehearing July* 29, 1974.
    
      Lemle, Kelleher, Kollmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for third-party plaintiffs-appellants.
    Dillon & Williams, Gerard M. Dillon, New Orleans, for defendant and third-party defendant appellee Fireman’s Fund Ins. Co.
    Mouton, Roy, Carmouche, Hailey, Bivins & McNamara, Henry D. McNamara, Jr., Lafayette, for third-party defendant-appel-lee American Mutual Liability Ins. Co.
    Before STOULIG, J., and MARINO and MALIK, JJ. Pro Tern.
   THOMAS J. MALIK, Judge Pro Tem.

Plaintiff in the original demand claimed a large sum in damages from multiple defendants, among them appellants here, John Ross and Ralph Waits. Ross and Waits are executive officers of Bancroft & Ross Co., employer of plaintiff. Also named as defendants were American Mutual Liability Insurance Co., who had coverage in favor of Ross and Waits for several years prior to and including 1967, and Fireman’s Fund Insurance Co. who provided coverage from January 1, 1968 and thereafter. The date of discovery of the injury was August 9, 1968.

Fireman’s Fund filed an answer on its own behalf and on behalf of Ross and Waits in which it was asserted that American Mutual was the proper party defendant. American Mutual also denied coverage, and refused to answer on behalf of Ross and Waits.

A third-party demand against both insurers was filed by.Ross and Waits through their own attorney claiming each insurance company had the obligation to defend and indemnify the executive officers. Fireman’s Fund admitted their policy and agreed to defend Ross and Waits but denied coverage again asserting that American Mutual was the proper insurer. American Mutual continued to rely on their answer denying coverage.

The main demand brought by plaintiff Frank Kinler was settled prior to trial, each insurance company making contribution to the settlement, following which both insurance companies filed motions for summary judgment asserting that there was no obligation to reimburse the insureds for the costs of their individual defense. The trial court granted the two motions from which ruling this appeal results.

The sole issue presented on appeal is the propriety of the trial court’s judgment dismissing the third-party demands by way of summary judgment. This Court is of the opinion that summary judgment was improper insofar as American Mutual Liability Insurance Co. is concerned, having failed to file its policy although ordered to by the lower court on March 24, 1972, two months before the first motion was filed.

It appears from the record that Associated Indemnity Corporation-Fireman’s Fund Insurance Company fulfilled its obligation under its policy, which was filed into the record, tendered a defense to appellants without reservation except to allege that the injury complained of occurred prior to its insuring agreement, and during the policy period of American Mutual. Such a defense made introduction of the American Mutual policy of prime importance, as well as the promise of a defense by American Mutual in the event the trial court determined that the injury was caused before Associated Indemnity Corporation-Fireman’s Fund policy period. In that event Ross and Waits would have had no protection, American Mutual having denied coverage as well as liability.

Summary judgments should be looked on with favor by trial courts whenever possible, however, where the entire crux of a case revolves around the policy provisions of insurance and said policies are not admitted into evidence, this court cannot determine how the responsibilities of the parties could be determined without a review of those contracts. No matter how reasonable a surmise that these appellants are unlikely to prevail in the lower court, the record lacks the necessary ingredient with which to compare this case to Breitenbach v. Green, La.App., 186 So.2d 712, which sets out the present law on the subject of the insurers’ obligation to defend an insured.

The summary judgment dismissing the third-party demand was premature insofar as American Mutual is concerned, without introduction of its policies of insurance, therefore said judgment is reversed in favor of appellants as to American Mutual Liability Insurance Company as this matter is remanded.

Associated Indemnity Corporation-Fireman’s Fund Insurance Company is dismissed from this action, all costs of this appeal insofar as this defendant is to be borne by John Ross and Ralph Waits.

STOULIG, J., dissents with written reasons.

STOULIG, Judge

(dissenting).

I respectfully dissent.

The thrust of the third-party pleadings filed on behalf of the original defendants John Ross and Ralph Waits, is for full indemnification from the third-party defendants, American Mutual Liability Insurance Company and Associated Indemnity Corporation-Fireman’s Fund Insurance Company, for whatever sums the third-party plaintiffs may be cast in the original action and in any event for all costs of defense and attorney’s fees.

Third party plaintiffs are entitled under their contract of insurance to (1) a full defense against the claims of the original plaintiffs; and (2) indemnification afforded by the coverage of the policy.

It affirmatively appears from the record that these obligations were fulfilled by one or both of the insurer-defendants.

Upon being tendered the defense of the third-party plaintiffs by a letter of their personal attorney dated February 18, 1970, Fireman’s Fund Insurance Company, through its attorney, advised in its letter of February 20, 1970 that it accepted the tender and would undertake the defense of these parties. Counsel furnished by Fireman’s Fund Insurance Company appeared on behalf of these insured and diligently represented them in all of the proceedings which eventually led to the compromise and dismissal of the original action. Nowhere in the record does the name of plaintiff’s personal attorney appear except on the third-party petition filed on March 23, 1972, long after Fireman’s Fund had undertaken the defense of the third-party plaintiffs on February 20, 1970. With the exception of the third-party pleadings, apparently the letter of February 18, 1970 was the only representation of the third-party plaintiffs by their personal attorney. Neither of these actions can be considered as offering a defense within the contemplation of the contract of insurance.

The original claim was compromised with the entire cost of settlement being borne jointly by the two third-party defendant insurance companies. Since the third-party plaintiffs were not cast in judgment, no indemnification is due. The compromise settlement obviated the need for indemnification.

The failure of American Mutual Insurance Company to accept the tender of defense is of no legal significance under the posture of this case. Had the matter been litigated and the third-party plaintiffs cast in judgment, they could have validly contended that they were entitled to the professional ability of both attorneys; however, since the matter was compromised, the trial skill of counsel was not involved.

Based upon the record as constituted, I am of the opinion that the granting of the summary judgment was proper and should be affirmed.

ON APPLICATIONS FOR RE- ' HEARING

PER CURIAM.

Third-party plaintiffs-appellants, John Ross and Ralph Waits, and third-party defendant-appellee, American Mutual Liability Insurance Company, have filed applications for a rehearing.

The application on behalf of the third-party defendant-appellee, American Mutual Liability Insurance Company, correctly points out that: (1) the majority opinion states that applicant’s motion for a summary judgment is based upon the assertion that it had no obligation to reimburse the insureds for the cost of their individual defense; (2) the said opinion has factually concluded that American Mutual failed to file its policy of insurance though specifically ordered to do so by the trial court; and (3) an interpretation of said policy is essential to the determination of the issues presented by the motion for a summary judgment.

The insurance company submits in these respects we erred. Its motion for a summary judgment was predicated upon the contention that a defense of the third-party plaintiffs had been furnished by applicant’s co-defendant, Associated Indemnity Corporation, at no expense to the third-party plaintiffs-appellants. There were no countervailing affidavits in support of any expenses incurred by the insureds in the defense of the claim asserted by the original plaintiff. Further, it was never ordered to produce its contract of insurance, it already having voluntarily furnished a copy to insureds’ counsel for inspection and copying.

We are of the opinion that the American Mutual Liability Insurance Company should have another opportunity to urge the correctness of the summary judgment granted in its favor.

It is therefore ordered that the applications for rehearing on behalf of the third-party plaintiffs-appellants, John Ross and Ralph Waits, are denied.

It is further ordered that a rehearing is hereby granted to third-party defendant-appellee, American Mutual Liability Insurance Company, for the limited purpose of reurging the correctness of the summary judgment rendered in its favor. The matter is to be submitted on briefs on or before June 17, 1974.

JUDGMENT ON REHEARING

THOMAS J. MALIK, Judge Pro Tern.

We find no reasons in the argument presented by Third-Party, Defendant-Appellee, American Mutual Insurance Company to alter our previous judgment.

The assertion that this parties’ obligation was fulfilled by Fireman’s Fund Insurance Company is no defense, and therefore the judgment of this Court previously rendered is affirmed.  