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ZAGER v. GUBERNICK (ET AL. (03/18/65)

decided: March 18, 1965.

ZAGER
v.
GUBERNICK (ET AL., APPELLANT)



Appeal from judgment of County Court of Philadelphia, Dec. T., 1960, No. 11844-D, in case of Irvin Zager et al. v. Irving L. Gubernick et al.

COUNSEL

Frank Bielitsky, for appellant.

Max Meshon, with him Eilberg, Meshon & Brener, for appellees.

Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., and Woodside, J., absent). Opinion by Flood, J.

Author: Flood

[ 205 Pa. Super. Page 169]

A settlement of plaintiffs' claim for damages in an automobile accident was negotiated by an independent adjuster on behalf of the appellant casualty company, the insurer of the driver of the other car. The appellant denies the authority of the adjuster, Gubernick, to make this settlement for it.

The accident occurred on February 22, 1960. A few days later the plaintiffs' attorney wrote to the owner and to the operator of the other vehicle, requesting the name of their insurance carrier. Thereafter Gubernick advised the attorney that he was handling the claim. He arranged an examination of plaintiffs by defendant company's physician and received an itemized statement of the losses sustained by the plaintiffs. He continued to negotiate and it was agreed by him and the plaintiffs that the sum of $4200 should be paid to plaintiffs in settlement. Releases of the

[ 205 Pa. Super. Page 170]

    insured, executed by plaintiffs in October, 1960, were sent to Gubernick, who in turn mailed them to the office of the defendant company. The releases did not disclose the name of the appellant. They were never returned to plaintiffs' attorney, but payment was not made thereunder, and plaintiffs' attorney's numerous demands upon Gubernick for payment were met with the explanation that there was a clerical delay.

Gubernick first disclosed the name of the appellant to the plaintiffs' attorney on January 17, 1961, and on the same day the appellant's vice president, Mr. Heimbach, notified the attorney by telephone that the insurance company would not accept the settlement since it was too high. He also stated that Gubernick was "one of their best adjusters" that he had "been working for them for quite some time" and had "never given them a release in the past which they had questioned" but in this case he had exceeded his authority.

Under date of January 25, 1961, Heimbach wrote the attorney a letter of explanation in which he stated: "Under date of October 26, Mr. Irving L. Gubernick, independent adjuster who is handling this case in our behalf, presented a set of releases totaling $4200.00 . . . . We promptly advised Mr. Gubernick that the releases were being rejected . . . ." The letter also said that Gubernick was advised "that it was our assumption that he had negotiated settlement with you continent [sic] upon the fact acceptance or rejection on the part of the company, particularly in view of the amount suggested and involved, which definitely does exceed the authority granted by this company to any outside adjuster."

Judge Kallick, sitting without a jury, concluded that the adjuster had been authorized to make full settlement of the claims, and found for ...


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