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DAVIES v. NATIONWIDE INSURANCE COMPANY (05/25/65)

decided: May 25, 1965.

DAVIES, APPELLANT,
v.
NATIONWIDE INSURANCE COMPANY



Appeals from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1963, No. 1050; Court of Common Pleas No. 3 of Philadelphia County, March T., 1963, Nos. 4162 and 4163, in cases of Sophie Davies v. Nationwide Insurance Company; Same v. Max E. Cohen.

COUNSEL

Stanley M. Poplow, for appellant.

Bernard J. Avellino, with him Charles L. Ford and Max E. Cohen, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 418 Pa. Page 204]

Sophie Davies (Mrs. Davies) has appealed from an order of the Court of Common Pleas No. 1 of Philadelphia County which sustained Nationwide Insurance Company's (Nationwide) preliminary objections and dismissed her complaint in trespass.*fn1

The factual background of this litigation is lengthy and complex. It begins on April 5, 1953, when an automobile driven by Albert V. Davies (Davies), in which Mrs. Davies was a passenger, collided with a car being driven by Wiley B. Dotson (Dotson), in which Dotson's wife was a passenger. As a result of the collision, Davies was killed and Dotson's wife and Mrs. Davies sustained personal injuries. At the time of the accident, Nationwide insured Davies against "personal injury claims" under a "family automobile policy" issued to him.

Dotson and his wife instituted suit against Davies' estate. Max E. Cohen, Esquire, Nationwide's attorney,

[ 418 Pa. Page 205]

    entered his appearance on behalf of the estate. At approximately the same time, Mrs. Davies brought suit against Dotson*fn2 who subsequently joined Davies' estate as additional defendant. The Dotson suit was settled and Davies' estate was released of all liability and was removed as an additional defendant in Mrs. Davies' action. Mrs. Davies subsequently settled her suit with Dotson. All these activities occurred prior to March 1956.

In May 1961, Mrs. Davies instituted a trespass action against her husband's estate to recover damages for her injuries sustained in the April 1953 accident. Nationwide disclaimed any responsibility under the policy and a judgment in the amount of $11,149.80 was entered against Davies' estate. There being no funds in the estate, Mrs. Davies then instituted garnishee proceedings against Nationwide, which proceedings are still pending.*fn3

On July 10, 1963, Mrs. Davies filed a trespass action against Nationwide alleging that Nationwide had: (1) breached its obligations to Mrs. Davies as a beneficiary under its "family policy"; (2) failed to recommend the institution of suit against Davies' estate in 1954, and, had such suit been commenced, she would have been able to collect the full measure of the damages she sustained in the accident; (3) failed to exercise the duty it owed Mrs. Davies to see that her rights did not suffer through its inattention, misrepresentation or equivocation; (4) prejudiced her rights by obtaining a ...


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