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Bolender v. Farm Bureau Mutual Insurance Co.

decided: March 7, 1973.

MARGARET COLL BOLENDER, ADMINISTRATRIX OF THE ESTATE OF JAMES P. COLL, DECEASED, APPELLANT,
v.
FARM BUREAU MUTUAL INSURANCE COMPANY AND NATIONWIDE INSURANCE COMPANY



Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C.Civil No. 44399).

Biggs, Kalodner, and Adams, Circuit Judges. Kalodner, Circuit Judge (dissenting).

Author: Biggs

Opinion OF THE COURT

BIGGS, Circuit Judge.

This appeal is concerned with the proper application of the Pennsylvania statute of limitations, 12 P.S. § 31 (1953), to a proceeding by Bolender, administratrix of the estate of Coll, to recover as a third party beneficiary pursuant to a contract of insurance issued by the appellees*fn1 to Laura L. Longstreth. Jurisdiction is founded upon diversity of citizenship, 28 U.S.C. § 1332 (1970). The law of Pennsylvania applies.

A judgment in favor of Bolender in the amount of $22,000 was entered on May 9, 1956 in wrongful death and survival actions against William Longstreth, the son of Laura Longstreth who had been given permission by the latter to operate her automobile, and Bishop, who was operating the automobile at the request of William Longstreth when said car struck and killed Coll. Farm Bureau Mutual Insurance Company had defended William Longstreth in the lawsuit under a reservation of rights agreement and had refused to defend Bishop. The judgment remaining unsatisfied,*fn2 Bolender filed the present suit against the insurer on December 27, 1967, claiming that either or both William Longstreth and Bishop were covered under the insurance policy issued to Laura Longstreth and that the insurer was estopped from asserting the policy limitation of $10,000 due to its lack of good faith in defending the prior suit and negotiating a settlement.

Bolender is suing to enforce the following promise of the insurer contained in the insurance contract: "Coverage F -- Bodily Injury Liability: To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile." Bolender's right to sue the insurer directly as a third party beneficiary of such promise to pay stems from the following provision: "No action shall lie against the Company, unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy, nor until the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.

"Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy . . ."

The appellees do not contest Bolender's right under the above policy provision to bring an action against the insurer as a third party beneficiary of the insurance contract, and Pennsylvania law is clear that such a suit may be maintained.*fn3 But in light of the fact that this action was instituted 11 1/2 years after the judgment against the insured was rendered, the court below granted appellees' motion to dismiss on the ground that this action was barred after six years by the Pennsylvania statute of limitations applicable to contract actions, 12 P.S. § 31. We agree.

It is of course fundamental that a statute of limitations does not begin to run until a cause of action has accrued. But determining the time when a cause of action has accrued is often the subject of dispute, and this case is no exception. Pennsylvania law is replete with simplistic statements concerning the times causes of action accrue. For example, it is said that "the time specified in a statute of limitations does not begin to run until there is an existing right to sue forthwith." New York and Pennsylvania Co. v. New York Central R.R. Co., 300 Pa. 242, 245-46, 150 A. 480, 481 (1930). In Philadelphia, Baltimore, and Washington R.R. v. Quaker City Flour Mills Co., 282 Pa. 362, 367, 127 A. 845, 847 (1925), the Pennsylvania Supreme Court said, "A cause of action accrues at the moment the party has a legal right to sue." And in Bell v. Brady, 346 Pa. 666, 669, 31 A.2d 547, 549 (1943), the Court stated that "a cause of action accrues . . . when one has the right to institute a suit." If the contract is conditional, the statute runs from the time the condition is performed or exists. Tonkin v. Baum, 114 Pa. 414, 7 A. 185 (1886).

Application of the above rules requires affirmance of the dismissal of this action. Bolender's right to sue to enforce the insurer's promise to pay was complete at the time the prior judgment was rendered. As is stated in the policy, "any person or organization or the legal representative thereof who has secured such judgment . . . shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy." (Emphasis added.) Securing judgment was a condition precedent to Bolender's right to sue the insurer directly, and upon satisfying this term, she clearly had "an existing right to sue forthwith," which under Pennsylvania law, starts the running of the statute of limitations.

In an effort to escape the obvious, Bolender contends that since the insurance policy contains no time limitation on an injured party's right to claim payment, that right exists as long as the judgment against the insured remains valid and enforceable.*fn4 The lack of such an express limitation in the policy is irrelevant, however, for the law, 12 P.S. § 31, imposes one. Bolender's position that a refusal of payment by the insurer is necessary to start the statute running is untenable. Refusal by the insurer is not a prerequisite to the right to institute suit to enforce the insurer's promise to pay, a right which Bolender ignored for 11 1/2 years, and the promise to pay was not part of a continuing contract.*fn5

We would end this opinion here were it not for our Brother Kalodner's dissent. We believe that the fundamental misconception of the dissent is its belief that the policy grants the right to sue on a judgment. The right to sue is on the contract, and the judgment is only relevant insofar as it is a condition ...


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