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MICHIGAN MILLERS MUTUAL INSURANCE COMPANY v. UNITED STATES FIDELITY AND GUARANTY CORPORATION (10/22/82)

filed: October 22, 1982.

MICHIGAN MILLERS MUTUAL INSURANCE COMPANY, APPELLANT,
v.
UNITED STATES FIDELITY AND GUARANTY CORPORATION



No. 2839 October Term, 1978, APPEAL FROM THE ORDER OF THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA, CIVIL ACTION--LAW DIVISION, DATED OCTOBER 24, 1978, AT No. 3880 OF 1971

COUNSEL

Kenneth A. Clouse, Media, for appellant.

Robert N. Speare, Media, for appellee.

Spaeth, Cavanaugh, O'Kicki,*fn* JJ. Cavanaugh, J., concurs in the result. Spaeth, J., files a concurring opinion.

Author: O'kicki

[ 306 Pa. Super. Page 89]

This case comes before us on appeal from an Order of the Court of Common Pleas of Delaware County granting Defendant/Appellee's Motion for Summary Judgment in a suit in assumpsit, and denying Plaintiff/Appellant's Motion for Summary Judgment in the same suit. Jurisdiction is conferred upon the Superior Court by the Act of 1970, 17 P.S. Section 211.301.

[ 306 Pa. Super. Page 90]

Appellant, Michigan Millers Mutual Insurance Company, at all times relevant to the instant case, was the insurance carrier for an individual named Timothy J. Malloy. Appellee, United States Fidelity and Guaranty Corporation, at all times relevant to the instant case, was the insurance carrier for the Dan Malloy Company. Appellant's Complaint in Assumpsit in the trial Court arose from a prior lawsuit in which Timothy Malloy was a defendant and Dan Malloy Company was an additional defendant. That case resulted in a jury verdict in favor of those plaintiffs against both the defendant, Timothy Malloy, additional defendant, Dan Malloy Company, with liability over from the defendant, Timothy J. Malloy, to the additional defendant, Dan Malloy Company. The jury verdict, rendered on May 15, 1969, was in the amount of $8,000.00 -- $7,000.00 for the minor plaintiff and $1,000.00 for the parents and natural guardians of the minor plaintiff.

The Appellant herein, Michigan Millers Mutual Insurance Company, insurance carrier for the defendant, Timothy J. Malloy, subsequent to the aforesaid jury verdict, paid the entire amount to the plaintiffs plus costs in the amount of $284.20. The verdict was thus satisfied and a Praecipe to enter judgment upon the verdict against Dan Malloy Company was entered.

Thereafter, Michigan Millers Mutual Insurance Company instituted this action seeking to recover from United States Fidelity and Guaranty Corporation either the entire amount of the verdict and costs paid by Michigan Millers Mutual Insurance Company on behalf of the defendant, or in the alternative, to recover contribution from United States Fidelity and Guaranty Corporation. Michigan Millers Mutual Insurance Company filed a Motion for Summary Judgment against United States Fidelity and Guaranty Corporation and they, in turn, filed a Motion for Summary Judgment against Michigan Millers Mutual Insurance Company. The trial Court, by an Order dated October 24, 1978, denied Appellant's Motion for Summary Judgment and granted

[ 306 Pa. Super. Page 91]

Appellee's Motion for Summary Judgment. Michigan Millers Mutual Insurance ...


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