Capital Insurance & Surety Co. v. Kelly

361 F.2d 567 CAPITAL INSURANCE & SURETY CO., Inc., Appellant, v. John V. KELLY as an individual, John V. Kelly as an heir to the Estate ofMarjorie A. Kelly, Deceased, John Kelly, a minor, and Don V. Kelly, a minor, both heirs to the aforesaid Estate, By and Through John V. Kelly, their fatherand nextfriend, Appellee. No. 20302. United States Court of Appeals Ninth Circuit. May 18, 1966, Rehearing Denied June 23, 1966. Walter S. Ferenz, Barrett, Ferenz & Trapp, Oakland, Cal., for appellant. E. R. Crain, Agana, Guam, for appellee. Before HAMLEY, JERTBERG, and ELY, Circuit Judges. ELY, Circuit Judge. 1 This appeal presents the question of whether, in the Territory of Guam, a claim which arises from the negligent operation of a motor vehicle and which has permanently abated as against the tortfeasor because of his death may be successfully prosecuted against his automobile insurer under a Guamanian statute (Guam Gov.Code 43354) permitting such insurers to be sued directly. 2 The appellant is an insurance company which, on October 24, 1964, carried a policy which was written in terms of indemnification and ran in favor of Dale S. Jones. The policy generally covered the…