refused judgment on the attachment. On appeal, the Supreme Court of Pennsylvania considered this issue and the case against insured on the merits in companion cases. After affirming the judgment against insured on the merits ( Di Gregorio v. Skinner et al. (No. 1), 351 Pa. 441, 41 A.2d 649), the Court said, Id., (No. 2), 351 Pa. 448, 41 A.2d 653, 654, 159 A.L.R. 760:
'The only question before us is one of law and involves primarily the interpretation of the following provision of the policy issued by the garnishee * * * : ' * * * No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor, until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial * * * .'
'In view of our affirmance of the judgments entered against Skinner (the insured), there can now be no question as to the finality of the cause of action as to him. That, we are convinced, solves the present controversy, for 'the amount of the insured's obligation to pay' has 'been fully determined.' * * * '
The Court's view clearly was that affirming a judgment on appeal 'finally determines' the 'obligation to pay,' and, I feel its opinion indicates the converse view as well; i.e., prior to affirmance on appeal, the obligation is not yet finally determined. This conclusion is reinforced by the fact that the lower court had regarded the obligation as not yet 'finally determined' on an entirely different ground; i.e., two co-defendants covered by the same policy, were to be tried again.
Neither counsel has called to my attention, nor does independent research reveal, any Pennsylvania cases indicating a contrary conclusion. The cases cited by plaintiff are not concerned with the precise issue before the Court. Accordingly, therefore, I feel that under the applicable law plaintiff's motion must fail.
However, plaintiff finally contends that in any event, the case is governed by a Pennsylvania statute, 40 P.S.Pa. § 117, which provides that:
'No policy of insurance * * * shall hereafter be issued * * * unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages * * * and stating that in case execution against the insured is returned unsatisfied * * * because of such insolvency or bankruptcy, then an action may be maintained by the injured person * * * against such corporation, under the terms of the policy, for the amount of the judgment * * * .' (Emphasis supplied.)
Since the reason plaintiff cannot execute judgment against defendant, even though no supersedeas has been filed, is defendant's admitted financial irresponsibility, plaintiff argues that the insurance company must immediately be liable to the amount of its policy. However, the statute makes clear that the right given plaintiff is suit against the insurance company for its liability under the terms of the policy, and it is the Court's conclusion that the company is not yet liable under the policy, either to the insured or plaintiff. Cf. Ferguson v. Manufacturers' Casualty Ins. Co. of Philadelphia, 129 Pa.Super. 276, 195 A. 661; Selden v. Metropolitan Life Ins. Co., 354 Pa. 500, 47 A.2d 687.
Accordingly, therefore, judgment for plaintiff on his motion for summary judgment will be denied.
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