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05/18/62 HANNAH MILLER v. MARKET MEN'S MUTUAL

May 18, 1962

HANNAH MILLER
v.
MARKET MEN'S MUTUAL INSURANCE COMPANY. HAROLD GREGORY V. SAME. HANNAH MILLER V. DAVID W. MYERS AND ANOTHER. MARKET MEN'S MUTUAL INSURANCE COMPANY, THIRD-PARTY DEFENDANT. HAROLD GREGORY V. SAME. MARKET MEN'S MUTUAL INSURANCE COMPANY, THIRD-PARTY DEFENDANT



Frank T. Gallagher, Justice.

SYLLABUS BY THE COURT

Insurance -- action by injured person against insurer of tortfeasor.

1. An injured person possesses no direct cause of action against the insurer of the tortfeasor prior to recovery of judgment against the latter.

Appeal and error -- non-appealable order -- discretionary order regarding intervention.

2. A discretionary order or decree permitting or refusing to permit intervention in a cause is not appealable.

The opinion of the court was delivered by: Gallagher

Four actions in the Scott County District Court arising out of a collision between an automobile allegedly owned by David W. Myers and driven by Earl T. Anderson and one operated by Glenn Kerkow in which Henry John Miller and Harold Gregory were passengers. One action was for wrongful death and was brought by Hannah Miller as trustee for the heirs and next of kin of Henry John Miller, who died as the result of the accident. Another action was brought by Harold Gregory for personal injuries. Both actions were against Glenn Kerkow and David W. Myers, and a third-party complaint was filed in each by defendant Myers against Market Men's Mutual Insurance Company, which company had insured him. Each plaintiff also brought an action against said insurance company. The court, Harold E. Flynn, Judge, granted the motion of the insurance company to dismiss the latter two actions, and plaintiffs each appealed from said orders (Nos. 38,293 and 38,294) and from judgments entered pursuant thereto (Nos. 38,388 and 38,389). The court also denied plaintiffs' motions to consolidate their actions against the insurance company with the third-party actions or for leave to intervene in the third-party actions, and they appealed from said orders (Nos. 38,514 and 38,515).

AUTHOR: GALLAGHER

This is a consolidation of six appeals from orders and judgments of the district court.

The cases arose out of an automobile accident which occurred April 15, 1959, near Shakopee. In one car were Glenn Kerkow, the driver, and Harold Gregory and Henry John Miller, passengers. The other car, which was allegedly owned by David W. Myers, was being driven by Earl T. Anderson. As a result of the injuries sustained in the collision between these two cars, suits were brought by Harold Gregory and by Hannah Miller as trustee for the heirs and next of kin of Henry John Miller, deceased, against David W. Myers. *fn1 Defendant claimed in his answer in each action that he was not the owner of the vehicle driven by Earl T. Anderson and that all right, title, interest, and possession in the car had been transferred to Anderson prior to the occurrence of the collision.

Defendant notified his insurer, Market Men's Mutual Insurance Company, of the actions against him. Market Men's, however, refused to defend the lawsuits, on the ground that defendant had sold the car prior to the accident and the insurance contract between it and defendant had been cancelled. Defendant thereupon moved for leave to bring in Market Men's as a third-party defendant in each action, and the court granted the motions. In order to ascertain whether it had a duty to defend the lawsuits, Market Men's moved the court in each action, for a separate trial on the question of cancellation of the insurance policy. After a hearing, the court granted the motions.

Plaintiffs then brought direct actions against Market Men's, each plaintiff claiming that he had an interest in the question regarding the insurance policy. They also moved to try these actions at the same time as the actions by defendant against Market Men's, to consolidate all the actions, or to allow plaintiffs to intervene in defendant's suits against Market Men's. For its part, Market Men's moved the court to dismiss plaintiffs' direct actions against it for failure to state facts upon which relief can be granted. The court entered two orders granting the motions to dismiss plaintiffs' direct actions and two further orders denying plaintiffs' alternative motions for consolidation or intervention. Later, two similar orders denying plaintiffs' alternative motions were entered in the original actions of plaintiffs against defendant. Each plaintiff took appeals from all orders affecting him and in addition from judgments entered pursuant to the orders dismissing plaintiffs' direct actions.

The legal questions raised by appellants are only two:

(1) Does an injured plaintiff, before verdict or judgment against defendant, have a direct cause of action against defendant's insurer on an automobile liability policy where the insurer has denied coverage ...


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