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FRANK ET AL. v. NASH ET AL. (EMPLOYERS LIABILITY ASSURANCE CORPORATION (03/14/50)

March 14, 1950

FRANK ET AL.
v.
NASH ET AL. (EMPLOYERS LIABILITY ASSURANCE CORPORATION, LTD., GARNISHEE)



COUNSEL

Peter P. Liebert, 3rd., John J. McDevitt, 3rd., Philadelphia, Paul A. Mueller, Lancaster, for appellant.

William C. Storb, W. Hensel Brown, Lancaster, for appellees.

Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.

Author: Arnold

[ 166 Pa. Super. Page 477]

ARNOLD, Judge.

In this attachment execution the question involved is whether an insurance carrier in an automobile liability policy is relieved from indemnification when the insured does not promptly furnish suit papers to the insurer, regardless of whether the insurance carrier is prejudiced.

The appellant insurance company issued an automobile liability policy to Clarence A. Nash, whereby it was bound to pay all sums which the insured became obligated to pay, by reason of liability imposed by law for damages sustained by any person, caused by an accident arising out of the use of the automobile named therein. The policy also covered the same liability of any person driving the motor vehicle with the permission of the insured.

[ 166 Pa. Super. Page 478]

On November 13, 1945, Nash's automobile was being operated with his permission by his son Robert, and was involved in a collision with a motor vehicle driven by Mary H. Dickason, from which accident Adaline M. Frank sustained personal injuries. Robert A. Nash will hereafter be referred to as the insured.

The insured gave prompt notice to the insurer of the happening of the accident, and the insurer made its investigation.

Mrs. Frank and her husband brought an action of trespass against Robert A. Nash and against Mary H. Dickason, (the driver of the car in which Mrs. Frank was a guest), and Charles L. Dickason, the owner of the vehicle.

The insured retained his own counsel, who accepted service of the writ as to Nash, and ruled the plaintiffs to file a statement of claim, which was done on October 10. On October 22, 1946, Nash's counsel filed an affidavit of defense. No suit papers were then forwarded to the insurance company.

The case appeared upon the trial list for November, 1946, was continued and listed for trial for the week of January ...


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