Company v. Wyoming National Bank, 1947, 356 Pa. 226, 51 A.2d 719, 170 A.L.R. 1060; Fedas v. Insurance Company of Pennsylvania, 1930, 300 Pa. 555, 151 A. 285; Rigby v. Great Atlantic & Pacific Tea Co., 1939, 139 Pa.Super. 543, 13 A.2d 89, affirmed 1942, 344 Pa. 674, 25 A.2d 401; 19 Am.Jur., Estoppel, § 83 et seq.; 14 Pa.Law Encyclopedia, Estoppel, § 25. An essential element of estoppel is that the party claimed to be estopped must have acted in such a way as to cause the complaining party to change his position to his injury in reliance thereon. Fedas v. Insurance Company of Pennsylvania, 1930, 300 Pa. 555, 560, 151 A. 285, 287.
In both Malley and Perkowski, the injury sustained by the insured was the surrender to the insurance company of the exclusive conduct of the case. In the instant case, plaintiff has failed to allege, nor can the court perceive, any element of injury. Defendant was under a contractual obligation 'to undertake the defence, until it could confine the claim to a recovery that the policy did not cover * * *.' Lee v. Aetna Casualty & Surety Co., 2 Cir., 1949, 178 F.2d 750, 753; Cadwallader v. New Amsterdam Casualty Co., 1959, 396 Pa. 582, 152 A.2d 484, 72 A.L.R.2d 1242. While the defendant at no time prior to the termination of the two lawsuits gave any clear indication to plaintiff that it would deny coverage, nevertheless plaintiff was not compelled to surrender the exclusive conduct of the case. Plaintiff retained counsel of his own choice to represent his uninsured interests. i.e., DiPrampero trading as Keystone Transit Company and DiPrampero trading as Keystone Auto Company insofar as liability might be incurred in excess of the limits under his coverage with defendant. There is nothing to indicate that plaintiff was not entirely satisfied with this individual representation. Moreover, the parties have stipulated that the settlement agreement in the death action was fair and reasonable, and credible testimony has been received that the verdicts in the personal injuries action were favorable to DiPrampero.
McGee v. United States Fidelity & Guaranty Co., 1 Cir., 1931, 53 F.2d 953, is a remarkably similar case. There the insurance company undertook the defense of a malpractice action without a reservation of rights. After certain facts which revealed non-coverage appeared during the course of the trial, the company immediately gave notice of disclaimer. During the entire trial, the insured was represented also by individual counsel who remained active throughout the case. In an action brought by the insured against the insurance company to recover the amount of the verdict, the court held that under the circumstances the company was not estopped to assert the defense of non-coverage. In refusing to invoke the estoppel doctrine, the court reasoned that since the insured had individual counsel, he was in no way prejudiced by the conduct of the company.
In determining the question of coverage and the effect thereon of the verdicts in the personal injuries actions in Fayette County, the court initially observes that the denomination in the pleadings of the fictitious names under which DiPrampero conducted his two enterprises does not serve to add as party defendants two separate entities. The court in the Fayette County actions properly was not concerned with which 'hat' DiPrampero wore at the time of his alleged negligence. Such incidental questions arose solely between DiPrampero and his insurance carriers.
Any negligence attributable to DiPrampero, acting as either Keystone Auto or Keystone Transit, entitled claimants to recover. Thus it is incumbent upon this court to determine the precise acts of negligence upon which the jury based its verdicts.
Insofar as DiPrampero's coverage with defendant is concerned, the only circumstances occurring on May 13, 1955, under which defendant might become obligated to its insured are twofold: first, if DiPrampero were negligent in his inspection of the brakes and such negligence was the proximate cause of the injuries and death; or second, if the bus were being used in connection with the business of Keystone Auto Company.
The question of ownership is unimportant except as it tends to shed light on the intended use of the bus.
An examination of the testimony in the personal injuries action fails to reveal any evidence which would support a jury finding as to negligent inspection. The only testimony on this point is that the brakes were inspected by Keystone Auto Company at an indeterminate time prior to the accident, that prior to May 13, 1955, Petro experienced no difficulties with the brakes, and that the accident occurred when Petro was unable to bring the bus to a stop by applying the brakes. Moreover, all the credible testimony in this case clearly points to the fact that at the time of the accident, the bus was being used in connection with the operations of Keystone Transit Company. While the testimony of Petro and DiPrampero in this court was contradicted to a large extent, both unqualifiedly testified in the personal injuries action that the sole purpose for Petro's driving the bus from his home to DiPrampero's garage was to make a charter run to Pittsburgh under DiPrampero's P.U.C. authority. This is supported by the testimony of Karl Loughead, principal of the Nemacolin Public School, who stated that he had chartered a luxury bus from DiPrampero for 3:45 P.M. to take a group of school children to Pittsburgh, but that DiPrampero had furnished a standard school bus which arrived late. Considering the fact the Petro's bus was a luxury type bus, the court must conclude that the school bus was substituted by DiPrampero after learning that Petro's bus was involved in the accident and would be unavailable for the charter trip. The use of this bus as a public or livery conveyance is expressly excluded from the coverage afforded by defendant.
Conclusions of Law
1. The court has jurisdiction over the matter in controversy.
2. Defendant is not estopped from asserting the defense of lack of coverage.
3. The plaintiff is not entitled to recover from defendant any amounts for which he became obligated by reason of the accident of May 13, 1955.