Appeals from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1966, No. 2881, in case of Richard P. Dennis v. New Amsterdam Casualty Co.
James J. McCabe, Jr., with him Duane, Morris & Heckscher, for defendant.
Gordon W. Gerber, with him Dechert, Price & Rhoads, for plaintiff.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.
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These are cross appeals from a judgment in the Court of Common Pleas of Philadelphia, in favor of the plaintiff, Richard P. Dennis, the appellee in this appeal and against New Amsterdam Casualty Company, the appellant in this appeal, in the amount of $6,049.45; and an appeal from the judgment in favor of the defendant company, the appellee in this appeal, in the claim of the plaintiff Dennis, the appellant in this appeal, in the amount of $17,500.00.
The facts are as follows: Dennis was a truck driver for Commercial Concrete Company, Inc., an insured of
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New Amsterdam. While so employed, on August 19, 1954, Dennis while backing his truck in the Norristown yard of his employer ran over one Harry Lobnitz, a fellow employee of Commercial Concrete Company, Inc., Lobnitz was killed. The administrator of Lobnitz's estate brought an action against Dennis and his employer in the Federal District Court. In the first trial of this case, a directed verdict for Commercial Concrete Company, Inc. was entered on the grounds that the only liability to Lobnitz's estate was for workmen's compensation. There was a hung Jury on the question of Dennis' liability. At the second trial against Dennis, it was a directed verdict for the defendant, Dennis, but as a result of an appeal of Lobnitz's estate the Circuit Court of Appeals granted a new trial.
When this case was about to be retried there was a settlement by agreement entered into by Dennis and Lobnitz's estate. The pertinent portion of this agreement is as follows: "Counsel for plaintiff and counsel for defendant agreed to accept the Judge's settlement figure of $17,500.00 with the understanding that Richard P. Dennis would promptly pay the sum of $1,000.00 and would agree to institute suit against the New Amsterdam Casualty Company to recover the full settlement figure of $17,500.00. Should full recovery be achieved, the sum of $16,500.00 will be paid over to plaintiff in accordance with the order of Court relating to distributions. If there is a recovery of less than the full $17,500.00 claim, whether by way of compromise verdict or by settlement, 94.28571% (16.5/17.5) of that recovery will be paid over to the plaintiff in accordance with the order of Court relating to distribution. It was further agreed that defendant would not compromise the $17,500.00 claim without approval of plaintiff or his counsel. It was further agreed that should there be a judicial decision that only the $1,000.00 would go to defendant and in the latter case the $16,500.00
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would go to plaintiff. It was also understood that Dennis would regard himself as trustee of plaintiff's claim for $16,500.00 and, as well, as trustee of any funds obtained as a result of asserting that subrogated claim."
Dennis thereafter brought an action in assumpsit in the Court of Common Pleas of Philadelphia seeking indemnification under the terms of an automobile comprehensive insurance policy issued by New Amsterdam to Commercial Concrete Company, Inc. Dennis claimed he was entitled to $17,500.00 as per the settlement agreements and $6,049.45 in legal fees and ...