Carlton Jasper Luehrs v. Utah Home Fire Insurance Company

450 F.2d 452 Carlton Jasper LUEHRS, Appellant, v. UTAH HOME FIRE INSURANCE COMPANY, Appellee. No. 24617. United States Court of Appeals, Ninth Circuit. Sept. 30, 1971. Harold Goldman (argued), Phoenix, Ariz., for appellant. Craig R. Kepner (argued), of Moore, Romley, Kaplan, Robbins & Green, Phoenix, Ariz., for appellee. Before BARNES and HAMLEY, Circuit Judges, and BYRNE, District Judge * . HAMLEY, Circuit Judge: 1 On June 10, 1965, an automobile accident occurred in Glendale, Arizona, involving a taxicab owned by Glendale Cab Company, Inc., and driven by Ancie B. Slaughter, and a vehicle operated by Wilma Grace Gustafson. A passenger in the taxicab, Thelma Louise Luehrs, was killed as a result of the accident. Her husband, Carlton Jasper Luehrs, commenced a wrongful death action in an Arizona state court against Mr. and Mrs. Gustafson, Ancie B. Slaughter, and Glendale Cab Company, Inc. 2 The public liability insurance carrier for the cab company, pursuant to a policy covering the company and Slaughter as operator of the cab, undertook defense of the suit for those two defendants. 3 In the wrongful death action the state court awarded Luehrs judgment against all defendants in…

On June 10, 1965, an automobile accident occurred in Glendale, Arizona, involving a taxicab owned by Glendale Cab Company, Inc., and driven by Ancie B. Slaughter, and a vehicle operated by Wilma Grace Gustafson. A passenger in the taxicab, Thelma Louise Luehrs, was killed as a result of the accident. Her husband, Carlton Jasper Luehrs, commenced a wrongful death action in an Arizona state court against Mr. and Mrs. Gustafson, Ancie B. Slaughter, and Glendale Cab Company, Inc.

The public liability insurance carrier for the cab company, pursuant to a policy covering the company and Slaughter as operator of the cab, undertook defense of the suit for those two defendants.

In the wrongful death action the state court awarded Luehrs judgment against all defendants in the amount of sixty thousand dollars. The public liability carrier paid its full policy limits on the judgment, and Luehrs has also recovered *454 ten thousand dollars from the Gustaf-sons’ liability insurer.

However, more than half the amount of the judgment remained unpaid, and Luehrs then applied to the state court for a writ of garnishment against Utah Home Fire Insurance Company (Utah), asserting that Utah may be…

(concurring):

I concur only because I feel bound by Barrow Development Co. v. Fulton Insurance Co., 418 F.2d 316 (C.A.9, 1969) and London v. Standard Oil Company of California, 417 F.2d 820 (C.A.9, 1969). I retain the hope that one day someone will have the courage to admit he erred and will seek to have the Supreme Court order this state court litigation remanded to the state court where it belongs. (See the authorities cited in my dissent in Barrow).