Later courts went against this
Overruled in part, on other grounds by Bailey v. Universal Underwriters Insurance Co., 258 Or. 201 (1970)
140 Or 538, 13 P2d 647 (1932), overruled on other grounds Bailey v. Universal Underwriters Ins., 258 Or 201, 219, 474 P2d 746, 482 P2d 158 (1970), the Supreme Court held that, when the insured had breached the insurance contract by failing to cooperate in the defense of the original damage action and thereby forfeited his rights under the policy, the injured party had no rights under the policy.
Distinguished
Distinguished by Farmers Insurance v. Stockton, 112 Or. App. 120 (1992)
The court held that the victim was precluded from recovering on the insurance contract, because her right could not be greater than Harris’ rights under the contract, and he had none. 140 Or at 545. Allegretto is inapposite to this case, because it had nothing to do with a default or issue preclusion.
The opinion
On Motion to Dismiss Appeal
BELT, J.
Bespondent contends that the appeal should be dismissed for the reason that there has been a violation of Bule 10 of the Supreme Court which provides in part as follows:
“ Points and authorities shall follow each assignment of error or proposition of law. Not exceeding five adjudicated cases should be cited under any particular point. Names of the parties and the volume and page of the case reported shall be stated. In citing textbooks, the edition, together with the number of the volume, page or section shall be given. Care should be used in the selection of cases cited. There is much waste of time in reading cases not in point.”
While there has been a clear violation of the above rule, we think this is not a ground for dismissal of the appeal. A motion to strike the brief from the files would have been a more appropriate remedy. Even had such motion been made, its disposition would rest in the discretion of the court.
The motion to dismiss is denied.