Canadian Indemnity Co. v. Republic Indemnity Co. of America

Appellee petitions for a rehearing saying that in stating in our opinion that the requisite amount in controversy was not shown to exist we overlooked the fact that the record showed that appellee’s policy, referred to in the opinion, had “limits of liability of $25,000 for each person injured.” This, says appellee, satisfies the jurisdictional requirement. *604 It says we should deem the complaint amended to disclose this fact. As authority for its position appellee cites C. E. Carnes & Co. v. Employers’ Liability Assur. Corp., 5 Cir., 101 F.2d 739 .

We think that cases such as the one cited are not apposite here. The Carnes case presented the question whether a liability policy covering a truck from which liquid butane gas had escaped and killed or injured a number of persons covered the hauling and unloading of such gas. There is no question or controversy here concerning any matter other than which of two insurance companies must defend and otherwise satisfy such action as might arise out of the accident described in the complaint.

While the policy may have had limits of $25,000 “for each person injured”, it does not appear here that any person whatever was injured. All that…

In this case Elsie Arno had a Willys automobile and appellee, Republic Indemnity Company, plaintiff below, had issued to her a policy of insurance covering public liability and property damage arising out of the operation of the Willys automobile. The same policy also provided similar protection for Mrs. Arno with respect to other private passenger automobiles while being operated temporarily by her as a substitute for the Willys, the insurance as to such substituted automobiles to be excess insurance over all other valid and collectible insurance available to Mrs. Arno.

On January 2, 1952, the Willys automobile was being repaired at the garage of Harry C. Dow who had permitted Mrs. Arno to use his Studebaker car temporarily while the Willys was being repaired. The appellant, Canadian Indemnity Company, had issued to Dow a similar policy of insurance covering the Studebaker car and insuring not only Dow but any other person operating the automobile with his consent. The complaint herein shows that on that date, while Elsie Arno was driving the Studebaker car, “it was involved in an accident with a motorycle belonging to the defendant City of Los Angeles and being operated by…