# Appendix — Maryland Casualty Co. v. Hallatt > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1621%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1964 - **Citation:** 377 U.S. 932 ## Text ss a : App. 6 IN THE UNITED STATES COURT OF APPEALS ~— | FOR THE FIFTH CIRCUIT | No. 18485 -_ MARYLAND CASUALTY COMPANY, * ’ Appellant, cam versus a tea rer HARRY H. HALLATT AND. . MARY.VALENTINE HALLATT, - me) Appellees. * ° ° No. 20197 \ HARRY H. HALLATT, Individually and as Exgcutor™* of the Estate of MARY VALENTINE HALKATT.~ ‘Deceased, | . ie ‘ _Appeliant, te versus, * Ct " MARYLAND CASUALTY COMPANY, : Se hese Nae ' Appellee. -- Appéals from the United States District Court for the . Southern District of Florida Before RIVES ‘and CAMERON, Circuit Judges, and HUNTER, District Judge. Ape : 2 JUDGMEN-T This cause came on to be heard on the transeript of the record from the United States District Court-for the Southern District of Florida, and was argued by counsel ; a Pam | ‘ App. 7 _ON CONSIDERATION WHEREOF, It is now here ordered and adjudged ‘by this Court that the petition for ring in Civil Action No, 18485 be, and tha same is - hereby, granted; the initial opinion and order therein is vacated; and the judgment of the District Court rendered ‘on June 17, 1960, is affirmed.. It is further ordered that the appeal in Civil Action No. 20197 is now moot and it is” - remanded to the said District € ‘oft to enter such orders as Yt may deem necessary, consistent with the oginion of this Court. Be: . . ‘ P = m . Pe, - It is further ordered and .fdjudged that Maryland ‘Casualty Company be condemned to pay the costs of this cause in this Court for which axecution may be tana’ out of the said. District Court. / as a January 10, 1964 Issued as Mandate: App. 8 ~ Filed Feb. 20, 1964, U.S . Court of a ae Steers W. ‘Wadsworth; Clerk. IN THE UNITED STATES COURT OF APPEALS - FOR THE FIFTH CIRCUIT NO, 18485 MARY LAND CASUALTY COMPANY, a . Appellant, a 8 -HARRY H. HALLATT and ‘MARY VALENTINE HALLATT,. Appellees. NO. 20197 HARRY H. HALLATT, Individually. and As Executor | of the Estate of MARY VALENTINE HALLATT, Deceased, “Appellant, vs. : MARYLAND CASUAL TY COMPANY, Appellee. ; . Appeals from the United States District Court for the - Southern District of Florida ON PETITION FOR REHEARING | 2 _ ( DENIED. | App. 9 “Before RIVES and CAMERON, -Cireuit ret and HUNTER, Distriét Judge. PER CURIAM. —, Upon considering . the petition i, /vehearing filed by the appellant, Maryland Casualty Cémpany, it jis or- déred and decreed that said petition be! and it. ies is. ee ad 4 App. 10 3 IN THE . _ UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT | ; No. ease: « MARYLAND CASU ALTY COMPANY, "Appellant, ‘versus | HARRY H. HALLATT ‘and | MARY VALENTINE HALLATT, ; : a Appellees: . Appeal from the United States District Court for the ° Southern District of Florida. (October 6; 1961) __. Before TUTTLE, Chief Sie: and RIVES and JONES, - Circuit Judges. | ~ JONES, Circuit: Judge: On’ April 11, 1956, in West Palm Beach, Florida, the appellees, Mr. and Mrs. Hallatt. were passengers in’ an automobile involved in a collision with another automobile owned and operated by one James , “R. Richardson, Jr. Richardson was then a waiter residing in Palm-Reach, and was insured: by ‘the appellant, Mary- land Casualty Company, under a policy of automobile liability insurance which contained the following provi- sions: App. 11 “No action shall lieagainst the company unless, | as a condition precedent thereto, the-insured shall have complied with all the terms of this policy... “Payment for loss may not be required nor shall action Jie against the company unless, as a — condition precedent thereto, the named insured shall have fully“complied with all the terms of this policy is : ede the caption “CONDITIONS,” No. a1, “As- , sistance and cooperation of the Insured” reads as follows: = “The insured shall cooperate with the company ‘al ‘upon the company’s request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtain- ing the. attendance of witnesses and in the con- duct of suits. The insuréd shall not, except at his ° own ¢ost,voluntarily make any payment, assume ‘any obligation or incur any expense other than for such immediate medical and surgical relief te others as shall be imperative at the time of.. the accident.” | ; The Hallatts clairned damages for their injuries. Maryland investigated the accident, and secured a. written statement from Richardson. The Hallatts filed suit against Richardson, and Maryland undertook the defense of that action. Before the case was finally set for trial on May 18. 3959, some three years after the collision, Richardson had moved to Massachusetts. ' Maryland duly and repeatedly notified Richardson of App. 12 the trial ‘date and requested him to Perey y Richardson de- clined, stating that he had begiout of work all of the pre- ceding winter, and had then seetired a job painting bridges ‘which paid him $200.00 per week. Maryland continued to insist on Richar‘dson’s attendance, and offered to pay his traveling expenses. On May 9, 1959, Richardson wroté to Maryland, “I shall be unable to make it to Florida as I am, working now.” Maryland notified Richardson that, if he persisted in his refusal te attend the trial, it would dis- . 0. claim coveraze béatise of - his ‘failure to cooperate. Rich- ardson politely, but adamantly, persisted in his refusal to attend the trial. exe. ; Counsel empigyed by Maryland to defend the suit then moved the cout for leave to withdraw as counsel for Richardson. That motion was denied, and the case pro- ceeded to trial. The trial court granted: the motion of.the Hallatts for a directed: verdict as to liability. The jury assessed their damages at a total of °8,797.00, for which ‘amount, together with costs of court, judgment was ren-~ dered against Richardson. -For the collection of that judg- ment the Hallatts caused a writ of garnishment to be is- ~~ sued against Maryland. In response to the garnishment, Maryland denied be- ing indebted to Richardson on the ground that Richardson’s condnet in failing and refusing to attend the trial of the negligence action brought against him amounted to a } breach of Condition No. 17 of the policy, quoted supra. The jury in the parnishment proceeding returned a verdict against Maryland for $9,267.52. From the judgment en- tered upor that verdict this appeal is prosecuted. Maryland ' insists that the district‘court erred; (1) in denying its mo- fion for a directed verdict; (ITs in n admitting certain evi- “oon “~~, Pt _— 13 denge; | af I) in refusing to give certain instructions to the jury. The pretsial stipulation prov ided that: “The pee issue to ii tried is whether or not -the assured, James Richard Richardson, has voided the insurance coverage under Policy “No: _-2-2236179,. for violation of the assistance and ~~ ~eooperation clause ¢ of the said policy of insurance, . - as set forth in paragraph” 2of-the reply of the ' garnishee to: the Plaintiffs’ traverse. a ee er i “The following issues of fact, and no others, remain to be litigated upon. the trial: “(A)- Maryland Casualty Company contends. that the policy of automobile liability insurance was voided by its insured, James .Richard Rich- “~ —. ardson, by violation of the assistancé and coop- eration clause of the said policy of insurance. “(Bi The plaintiffs; ‘cgntend that the good: faith and diligence of. the garnishee with respect. to the insured and the plaintiffs isan issue of © fact to be resolved. ; ‘It is not claimed that Richardson failed to cooperate with Maryland from the date of the accident on April 11, 1956, to the time wherf ihe negligence case was finally set: for trial on May 18, 1959.-The claim is that Richardson's " refusal to attend the trial was such a breach. of the con- App. 14 dition as to relieve Maryland of its obligation to pay for the loss. © Maryland put one of its claim agents, Leonard W. Lafferty, Jr., on the stand and by him established that letters had ‘been sent to the insured advising him of the date of the trial, requesting -his attendance and offering to adyance such sums as might be required to cover expenses . of attending the trial. On cross-€xamination he was asked by counsel for the .Hallatts as to whether or not ‘Richard- ’s testimony would have been helpful. Over objection by Maryland hé was required to answer. Maryland's claim manager, Thomas B. Barton, was put on the stand by it to show his effort& in attempting to produce Richardson's. presence at the trial: On cross-examination, over objection, he was required to say whether, in his opinion, Richard- son’s testimony would have been helpful. ‘The answers given to thése questions were equivocal. Lafferty said he ‘didn’ t know and Barton said it would be hard to say. z The objections were made to the testimony on the ground that it was improper to admit evidence pose of showing that the insurance comp; prejudiced in the absence of the insur _It has been said that: ra pur- y was not from ‘the trial. “While a few courts have taken the view that- - liability policy clauses requiring the insured to cooperate in the defense of actions under the policy by attending the trial and testifying, where ' requested to do so, are to be construed strictly and in accordance with their plain terms, so that "an insurer may escape liability by merely show- ing a failure or refusal to attend or testify, ‘it queee tem App. 15 appears to besthe view of the great majority of : the courts that the lack of cooperation by the in- . sured in failing to attend'the trial or testify must be substantial or material, and that a technical or inconsequential lack of cooperation is ‘insufficient - to void the policy. Before the insured’s failure to attend the trial can be. regarded as a materia! breach of the condition requiring the insured’s cooperation, the insurer must sliow that the lack of cooperation resulted: in. prejudice .ta the- in- surer.” 29 A Am. Jur. 588, Insurance § 1479. In discussing the same question the Court of Appeals for . the Seventh Circuit recently stated that a majority of American decisions hold that the failure of an insured . person to attend a trial and aid in the defense when a case against him. is called for trial, is prejudicial per se. Po- tomac Insurance Co. v. Stanley, Tth Cir. 1960, 281 F. 2d 775. We have no academic interest as to which pan of the _ scales carries the greater bulk of the precedents. Our task is to determine which of the conflicting rules is the law of Florida.. | The earliest of the Florida cases to which our at- tention is called is United States Fidelity & Guaranty Co. ' », Snite, 106 Fla: 702, 143 So. 615. There it appeared that _the insured did everything -he was requested to do by the Insurer. The insured was not present at the trial. He was | not asked to be present and the attorneys for the insurers made no effort to notify him at addresses furnished them where he might have been located. The insurer filed a mo- tion for continuance stating that the insured was absent because he had not been informed that the case had been set for trial. The judgment was sustained because it App. 16 a clearly .appeared that the insured had not intentionally - absented himseif from the trial. In the course of the opin- ion it was observed that it had not been shown that if the | - insured had been present at the ‘trial he could have ren- - | dered any ‘assistance to the insurer. In view of the court’s holding that the cooperation clause was not breached be- cause the insured’s absence from the trial was not: inten- tional, we do fiot regard as a ground for decision the com- * ment regarding the failure to show that the insured could have rendered assistance if he had been present. The opin- . ion, as we read it, does not announce a‘principle that .a ” showing must be, made that the presence of the. insured woul probably have changed the result of the trial. In the Snite case the cooperation clause required the insured - to, “aid in sgcuring information, evidence and the attend-. ° ance of Witnesses, in effecting settlements and in defend- ing suits...” and “at all times render to the Company all reasonable’ cooperation and assistance.” The. policy .did not contain a provision such as is in the policy here - which expressly requires the insured to attend hearings ' and trials. Even if it could be said that. prejudice must be shown for an insurer to be relieved of liability for a ~ breach by the insured of a covenant to render. cooperation and assistance, it does not follow that the rulg ) Would be applicable where the arr ag breached an nee to attend: oe and trials. | ate ee In’ the case of American Fire and C asualty Company Vliet, 148 Fla. 562; 4 So. 2d 862, 189 A.L.R. 767, the utomobile liability policy insured J. R. Battle and his wife. he insured car while being driven by Mrs. Battle was in- _ volved in an accident resulting in injuries to Clarence L. Vliet who recovered judgment against the Battles and garnished the insurance company. The Battles hac moved ‘App.177. "© from Florida to Georgia, J. R. Battle had become insane. _ Mrs. Battle*declared her willingness to go to Florida and render any assistance she could if the insurer would guar- antee her expenses. This was not done. The court held that an insured is/not required to attend a trial at his ewn ex- pense, and a | failure to do so does not void the policy. The . court, in its | opinion, stated that the breach of the coopera- tion clause — be material and the insurer must’ show . substantial / prejudice. In this case, as in the Snite case which it cites, the decision was based upon the fact that - { of the insured was justified. The court’s ob- servation as to thé need for showing prejudice i is, we think, obiter dictum and not-a statement of the law of Florida which is binding upon us. The court cited with approval » the caselof Bauman v. Western & Southern Indemnity Co., 230 Mo, 835, 77 S.W. 2d 496, where it is shown that it is — only ary unexcused failure to cooperate ¥ which releases the insurey from liability. he most recent of the Florida cases iny olving the. co- ; oper tion clause in automobile liability insurance policies - in- merican Universal Insurance Co. V. Stotsherry,: Fla. "App. 116 So. 2d 482. The’ appellate court reversed a sum- . mary judgment for the insurance company. There was a quéstion as to whether the insured knew,that a suit had been brought against him so-as to permit “ finding of fail- ufe to cooperate because he had not bee.. given notice of | shit. There was\a question as to whether the insurer had enied liability on another ground and, if so, whether such denial: would excuse the insured’s failure to cooperate. It was contended by the insurer that the insured had ab- sented himself and so became unavailable for appearance at the trial. Citing the Snite and Vliet cases; “thé courtsheld that there were fact issues as to whether the’ circumstances i o - ire —- 18 © : ™ of. thie insured’syabsence or. taihire to cooperate were such - as to amount to a breach Sf the-ooperation clause. .The clause was asters for’ & trial of the fact: issues. a g At°is our belief that the Florida _—r courts have | not had before them for decision the question as to whether the unexcused absence of an insured from a trial, contrary to. the expréss'] ‘provision of a cooperation clause in an auto-” mobile liability policy of insurance. will relieve the in- _ surer from liability without -proof that the insurer was prejudiced ‘by the insured’s ‘absence. Whatever may have ’ been said in any of the Opinions of the Florida courts was * not essential to the decision. It was, therefore, mere obiter dictum. See Pell v, State, 97 Fla. 650,122 So. 110. A fed- eral court in a diversity case, adjudicat ing matter aris- _ ing under state law, has been characterized as: “in effect, ‘- only another court of ‘the State.” Guaranty Trust Co. v. York, 326 U.S, 99, 65.S.. Ct. 1469, 89 L. Ed. 2079, 160 A.L.R. 1231. "This being-so, a federal court is not bound by a decision which ‘would not be. binding upon the courts of the state. King v. Order of. United Commercial Trav-- _elers, 333 U.S. 153, 68 S. Ct. 488,92 L. Ed. 608, reh. den. - $33 U.S. 878, 68 S..Ct. 900, 92 L. Ed. 1153. The Florida courts have held, on a number of occasions, that the-lan- . guage in’ a judicial opinion which is not essential to the decision is without force as a precedent. State v. Florida State Inmiprovement Commission, FiR., 60 So, 2d 7475 Twy- man v. Roell, 123 Fla, 215, 166 So. 215; State ex rel Hel- seth v. Du Bose, 99 Fla. 812. 128 So. 4; Pell v. State; supra. We conclude that the question as for the need.for proving prejudice is not controlled by any of the decisions of the ’ Florida courts. _ ne ee 5 Since we find no authoritative-precedent-of a Florida . owe. Venn” . ~ . , > 6 App. Ii I court it is‘appropriate tht we be ‘guided by the. period de-. cisions of this Court as, in effect, another cout of the State. Cf. MarGregor vs. State Mutual Life Assurance Co.,: | 315 U.S. 280, 62 S. Ct. 607, 86 L: Ed.’ 846, reh. den. 315 ‘ that the failure to-cooperate was not material since under — _ be secured was prejudicial to garnishee’s. rights and would’ have a material effect on the verdicts.” The Gourt ap- - U. 8/829, 62 S: Ct. 908, 86 L. Ed. 1224..Pertinent to, and, we think, decisive of the question -under consideration are the two’ Rexford cases, Royal Indemnity Co. v. Rexford, 5th Cir. 1952, 197, F. 2d 83, and Rexford v. Royal Inden- nity Co., 5th Cir., 1954, 215 F. 2d 693. These cases were appealed from the District Court for the Southern District of Florida’ and, were decided under the law of Florida. —- . There, as here, the vourt admitted ev idence on. behalf of . the plaintiff in garnishment for the purpose of showing the evidence there was no defense to the suit. Permitting the. introduction of this evidence was characterized as reé trying the damage suit and improper. In reversing the cause 1or a new trial, the Court, in the first Rexford: case, held that°the failure of an insured toattend trial would be material noncooperation. The Court quoted with ap- proval from Cameron v. Berger, 132 Pa. Super, "484, 1, A, fe: 2d 529, 433, where it was said, “The very fact that he defernidant.was absent without explanation and could not proved thé following statement from Gleé ns Falls Indem- nity Co. v. Keliher, 88°N. H. 253, 187° A: 473, 476, “Every person familiar: with the trial of cafes by jury knows that the case of an individual defendant is seriously, if _ not hopelessly, prejudiced by his absence from the trial.” This Court commented -that- the cited cases from Florida were tc no different effect that those from which it quoted. ° - . : s Thé case of Cameron v. Berger, supra, from which this e at Re’: oS C ae . @ = App. 20 . Court quoted in the Rexford opinion, was affirmed by the Supreme Court of Pennsylvania. Cameron v. Berger, 336 Pa, 229, 7 A. 2d 2983. The Court of Appeals for the Seventh Cireutin Potomac Insurance Company v. Stanley, supra, where Indiana law controlled in.a diversity case, quoted at length ei the first Rexford case and followed the holding ‘ of this Court that failure of an insured to attend a. trial would be prejudicial noncooperation: In the opinion of the Seventh Circuit it said: : . “We think the majority view, that the failuie of an insured person to. attend a trial and aid in the defense when a case against him is called for trial, is‘per se, prejudicial, is consistent with the established principle of Indiana law that one who would seek to enforce a ‘contract for his benefit must show that he has performed al] conditions on his part required to be performed as a condi- tion precedent to his right.” 281 F. 2d 775, 781. ¢. The Florida law; like that of- Indiana, requires that per- formance of conditions precedent, or a valid exeuse fer non- _ performance, must be made fo appear. Ballas v. Lake Weir Light & Water Co., 100 Fla. 913, 136 So. 421. The rule an-. nounced in the Rexford opinion seems to be the law -of Arkansas where the District Court for the Western Dis- trict of Arkansas cited and followed the Rexford decision. Roberts v. Commercial Standard Fnsurance Co., 188 F. Supp. 363. yh . : ° U in favor of the insured, yet such contracts are subject to the same rules of coristruction applied to other contracts, ‘and language used in a policy of insurance‘is to be given its é - - : \ “oe % . SF While insurance contracts are to be liberally construed —- . 2 a App. 21 aes | ° popular and usual significance unless the context requires a different construction. Aetna Casualty & Surety Com- pany v- Cartmel, 87 Fla. 495, 100 So. 802, 35 A.L.R. 1013; | 18 Fla. Jur. 4, Insurance?§s. 91, 92. The, Supreme Court of Florida has considered the effect of conditions relieving ‘an insurance company of liability and in so doing took ov- casion to Say: 2 “In Atlantic Coast Line BR. €e. . Beazley, BA. Fla. 311, text 392, 45 So. 761, text + 7. we said: i- ‘All parties litigant who are sui juris, whether railroad corporations or their employees, in the eves of the law, before the courts, stand upon an equal footing, entitled to equal rights and protec- tion and’ none to special privileges.” We would now hdd insurance contpanies and the insured, and that the persons. insured, like railroad em- plovees, cannot be said ‘to bewwards of the court.’ We also held in the cited case as. in Scotch Mfg. Co. vy. Carr, 53 Fla. 480, 43 South. 427, that par- ties are free to make what contracts they please’ so long as no fraud or deception is practiced and there is no infraction of law. We further held that’ the fact that one of the parties made a rather ‘hard bargain would no* avoid the contract. This being true, and, the plaintiff having accepted a policy from the defendant with such a clause or condition of the contract therein, why should not _ the defendant have the legal right, in an action brouglit against it on such policy, to base its de-’ _S fense on such provision?” Southern Home Insur- ance Co. v. Putnal, 57 Fla. 199, 49 So. 922. 930. Why, too, should not Maryland Casualty Company have t pO ‘App. 22 the right to be relieved from liability because of the failure | of the insured to attend the trial without having to show that it was prejudiced? ~ As used here it means that the insuréf is hurt or injured The word “prejudice” is one of fs or meanings. in that it is less able to resist a claim‘ugainst its insured by defeating recovery or reducing the award of damagey : Long v. Brown, 64 Idaho 39,.128 P. 2d 754; Itzkowitz v. ‘Finer & Bachsach, 218 App. Div: 440, 218 N.Y.S. 272. Whether or. not the testimony ‘of the insured would be beneficial to the defense, his presence at the trial would” justify the jury’s belief in his faith in the defense, as noted in Rexford, supra, and, as pointed out by the Sixth Circuit: “His taltuee to be present in defense’ of the’ claim can have an intangible effect upon the: jury both as to the question of liability and the amount _ of the verdict, the net effect of which is difficult to measure. Unexpected developments: in the plaintiff’s evidence might ‘be offset by. an explana-- tion on,the part of the insured. Inaccurate or ex- aggerated testimony at the time of the trial may be prevented or held to a minimum by the mere presence of the insured.” Beam y. State Farm Mutual Automobile Insurance Co., 6th Cir. 1959, 269 F. 2d 151. _ The court cited, in support of the quoted statement, Buu- man v. Western & Southern Indemnity Co., supra, which _ was approved in the Vliet case. The Bauman case was also cited and relied upon in Fischer v. Western & South- ern Indemnity. Co., Mo. App., 106 S. W. 2 490), from ‘thin which this Court acid in the Rexford case, \ 2 App. 23 f - Our conviction thate-the courts of Florida would not require a showing of prejudice to an insurer in order that it might be relieved of liability by breach of the insured’ s duty to attend the trial is strengthened. by thé decision of - the Florida District Court of Appeal i in State Farm Mutual | Automobile Insurance Co. . Ranson, Fla. App: 121 So. 2d 175, decided in 1960. Th condition which was breached by the insured was the se requiring the giving of notice of accident as soon practicable. The court took notice of the conflict of the authorities on the question as appeared in the annotation at 18 A.L.R. 2d 443, 479. It was held - that since the policy contained a provision that no action should lie against the insurance company unless, as a con- dition precedent thereto, the insured shall have fully com- plied with all of the terms of the policy, the question of notice bedame immaterial once it became established that _ the notice was not given as soon as practicable. The policy before us contains a clause identical with the clause in the ' Ranson case to the effect that seca’ policy re- - quirements is a condition precedent to ‘recovery. We see no logical reason for a different rule where the breach is one af the clause providing for notice than in a case where there is an unjustified absence from the trial. We conclude that under the law of Florida, prejudice need not be shown. ree Since the question of prejudice was not a proper issue the court’s admitting, over objection, of evidence on the question was error, and for that error, the judgment must be reversed. The insurance company attempted, by evi- dence, to show that it had been.prejudiced but by doing. so it did not waive its objections to the evidence offered by _the garnishor which was improperly admitted. .1 Wigmore on Evidence. 3rd Ed. 345, $ 18, Cf. Louette v. State, 152 App: 24 . ~ . Fla. 495, 12 So. 168. The insurance company did me bre serve objections td the court’s instructions as to the heces- sity far proof of prejudice. See Clark-Warwick,:Inc. v= National Fire Insurance Co., 5th Cir. 1961, 291 F. 2d 828, and cases there cited. However, since the case was tried on an erroneous theory of law and evidence under that theory was received over objections, we do not need:to reach the specification of error relating to instructions.’ ‘One of the issues in the district court was: whether Maryland had exercised good faith and diligence in mak- ing efforts to procure the attendance of Richardson at. the trial, and the Hallatts contended that the evidence sup- ported their contention that good faith. and diligence were: hot shown. There was some evidence fron: which it might have been inferred that Maryland was hoping it could use — the noncooperation of Richardson as a basis for disclaim- ing liability. The insurer must exercise’ good faith. and diligence, but if it does so and is unsuccessful in its efforts. it will not be precluded for disclaiming liability because of its desire to be released. 6 Blashfield, Cyclopedia of Auto- mobile Law and Practice, Perm. Ed./74 § 4059. So tod, ” must the insured use good faith, If he, is to be- absent from the trial and the absence is to be successfully asserted as a breach of the policy, it must be shown that the absence was . intentional and without legal’ excuse or justification. United States Fidelity & Guaranty Co. ». Snite. supra. There may be an issue as to whether, as said in the first Rexford case, the absence was accidental or incidental. 197 F.-2d 83, 86: In the usual case the question as to whether there has. been an unjustified refusal to-attend a trial So as to relieve the insurer of liability ‘s one of fact for the jury. United . ‘SPP. 25 States Fidelity & G 7 Co. v. Snite, supra; American Fire & cepiped Co: v. Vliet, supra; American Universal Insurance Co. . Siasieerry, supra. If, however, the evi- dence is ad ‘dispute and clearly shows a failure to co- operate, a directed verdict should be granted for the in- surer. State Farm Mutual Automobile Insurance’ Co, v. Ranson, supra; Williams v. Employers Mut. Liability Ins. ‘Co. of Wisconsin, 5th Cir. 1942, 131-F. 2d 601. See also Associated Indemnity Corporation v. Davis, 3rd Cir., 1948, 186 F.2d 71. Although the failure of the insured to attend a trial is, as a matter of law in Florida, prejudicial to the insurer, we think that, on the issues of the good faith and diligence of Maryland and the excuse’ or justification of Richardson for nonattendance, questions for the jury. were present. ° On the question of the failure of an insured to comply with a cooperation clause, the burden of proof is cast’ upon the insurer to establish the facts showing the breach by the insured. United States Fidelity & Guaranty Co. v. Snite,. supra: Williams ». Employers Mutual Liability Insurance Co., supra. But the insurer is required to do .no . more than to show that it exercised good faith and diligence. in an effort to procure the ‘attendance of the insured at the trial and that the insured did not attend. It is not required to anticipateand negate all of the excuses and red- sons that might justify the nonattendance of the insured. If, counsel has suggested, Richardson might have jeopar-.. dized his job by leaving it to attend the trial, but that he might have attended at a later date, this might have justi- _ fied his breach of the policy provision. Cf. State Farm Mu-_ tual. Automobite Insurance Co. v. Palmer, 9th Cir., 1956, 237 F.2d 887. -If this was so, or ‘if other excuse or justifi- cation existed for, Richardson's absence from the trial, the . é . App. 26 burden of establishing it rested — the Hallatts. 1 Jones © en Evidence, Sth Ed. 375.et seq., $ 207; Grand Assembly, . ete. v. New Amsterdain- er Co., Fla. App. 102 So. 2d 842. Since the case was tried.on an erroneous theory of law as .to the necessity of proof by Maryland that it was prejudiced by the ‘absence of Richardson from the trial the judgment must be reversed. Since there are fact issues: that the trier of fact should determine, the cause will be remanded for a new trial. "REVERSED AND REMANDED. - RIVES, Circuit Judge, dissenting: - Richardson’s liability to respond in damages for: the injuries which he had inflicted on Mr. and Mrs. Hallatt . was fully covered by insurance on the date of the collision, April 11, 1956, and remained so protected for more than three years. Richardson declined to come from Massachu- setts to Florida to attend the trial, stating that he had been out of work all of the preceding. winter, and had then | secured a job painting bridges which: paid him $200.00 per week. There was no proof that Richardson could give any testimony beneficial to the defense of the negligence action. There had been no effort to take his depositién. The evi- - dence of Richardson’s liability was such that the trial court directed a verdict for the Hallatts on that issue. The Hallats got a judgment against Richardson for $8,797.00. Maryland Casualty: Company refuses to pay that amount . to the Hallatts because it says that Richardson breached App. 27 ~ the condition of the policy providing for “Assistance and. iy Cooperation of the Insured”: “The insured shall cooperate with the company and, upon the company’s request, shall attend hearings and trials and shall assist in effecting set- ‘tlements, securing and giving evidence, obtaining. the at- tenda.:ce of witnesses ana in the conduct of suits.” The district court admitted evidence, over Maryland’s objec- ~ tion, from which the: jury might, and probably did, de- termine that Richardson’s mere presence at the trial was not material, and that his failure to attend was not prej- udicial. to the defense of the action. The majority holds that the failure of the insured to attend the trial in Flor- ida is prejudicial to the insurer as a matter of law, and hence.that the question of prejudice was not 'a proper issue for the jury. I agree with the district court. - hsncmeiie liability insurance supplies a highly. im- portarit social need. Without it few’of the drivers on our highways could respond in damages to the victims of their negligence. ‘Some of the States have recognized the social need by enacting compulsory automobile liability insurance laws. Many more encourage the .aking of liability in- | surance by financial responsibility laws, or by other means. That social need should be kept App. 33 of the appellate court. See State Roads Commission x. Johnson, supra. Nor can any attempted distinetion be drawn as to the wording of the cooperation clause, for it "was the same in that case as in this. See 16 So, 2d-483, n. 2 Let me go further, and assume arquendo that my brothers are correct in holding. that al} three statements of the” Florida appellate courts are.dicta, what then? Are the statements to be wholly disregarded, as the majority opin- ion would seem to indicate? The Florida cases cited in that opinion go no further than to hold that dictum “is not con- trolling” ina subsequent case. State vw. Florida State Im- provement Commission, 1952; 60 So. 2d 747, 750. The rule in Florida appears no different than that in other common- law jurisdictions, that dictum by the highest court of the jurisdiction or by an appellate court, while not controlling, is entitled to respectful consideration. 21 C. J. $.; Courts,* Sec, 190; pp. 318, 314. My brothers themselves made a clear, : statement of. the true rule in an extremely recent case: “If as dicta the statements are to be treated, they must never- — . theless be régarded as cansidered and repeated dicta, arid therefore highly persuasive of the correctness of the Com-_ mission’s decision.” Miss. Valley Gas Co. v. Fed. Power Commission, 5 Cir., No. 185601, m/s, decided.September 12, 1961 ‘per Jones, Circuit Judge; Tuttle, Chief Judge, and Cameron, Circuit Judge. concurring). An immediate ex-. ample is supplied by the Florida appellate court’ in the Stotsherry case following the dictum of the Supreme Court of that State in the Vlief case. This Court. as “in effect, , only another Court of the State,” should, -1 think, do. like- wise.* im ; As was said in West v. A. T. & T. Co., 1940, 811.U. S. 223, 236, 237: “OR ee | ae * + App.34 ; '“A state is not’ without law save.as its highest court has declared it. There are many rules of | ‘decision commonly accepted and acted upon by _the bar and inferior courts which are nevertheless _laws of the state although the highest court of the . State has never passed upon them. In those cir- cumstances a federal court is not free to reject _the state rule merely because it has. not received | the sanction of the highest gourt, even though it... thinks the rule is unsound in principle or that an- other is preferable. State iaw is to be applied ‘in . the federal as we!l as the state courts “and it is the duty of the former in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule, - however superior it may appear from the view-— point of ‘general law’ and how ev er much the state =~" “rule may have departed from prior decisions of- the federal courts. See Erie —. Co. v. Tomp- kins, supra, 78 [304 U. S. 64, 78]: Rus ssell v, Todd, supra, 203 (sic) ap U. S. 280, 293}.”. Professor: Meore collects the pertinent authorities in a 1 Moore’s Federal Practice, 2nd ed., p. 3312, in support of _ his text that: | “The obligation to accept local law extends not merely to definitive decisions, but to considered . dicta as well, and if explicit pronouncements are wanting, the federal court should endeavor to dit- cover the law of the state on the point at issue by considering related decisions, analogies, and any ' reliable data tending convincingly to show what the state rule is.” App. 35 Surely expressions to like effect in the opinions of two State Supreme Court Justices concurred in by their col- leagues, and still further in an opinion of a State Appel- _ late Court Judge concurred in by his colleagues,.must rank _ at least as “considered dicta” to be used along ‘with any -other relevant data to ascertain state law. By what seems to'me to be a kind of bootstr: ap opera- tion, my brothers consider themselves bound by tWo cases from this same federal Courf of Appeals: “Pertinent ‘to and, we think, decisive of the question under consideration are the two Rexford cases, Koyo! Indemnity Co. v. Rev- ford, 5th Chr. 1952, 197 F. 2d 83, and Rexford v. Royc!. Indemnity Co., 5th Cir. 1954, 215 F. 2d 693." | The careful annotator in 60 A. L. R. 2d°1151 observed that this Court in Royal indemnity Co, v. Rexford, 1952, 197 F. 2d 83,,"approved, arguendo, the statement that the very fact that an insured is absent from the trial without | explanation is prejudicial to the rights of the insurer and . has a material effect upon the verdict.” I agree with the annotator that that part of the opinion was dictum. The decision was expressly stated to be “because of the error in permitting the plaintiff to retry the damage suit, the case was not fairly tried.on the issue of non cooperation.” This -Court stated unequivocally that “there is no doubt that, under all the authorities, th. non-cooperation must have been material.” (197 F, 2d at 86). Further. the Court expressly denied any intention to direct the rendition of a verdict. “The case is a very close one as to whether there snould not have been an instructed verdie: in favor ef the insurer on the ground that the in- App. 36 . sured failed as matter of law to cooperate, but we — have concluded that the judgment should not be reversed and rendered on that issue.” | (197-F, 2d at 86). Upon remand, aeeanaieks: the district court did just that, and upon second appeal this © ourt again reversed, stating that “the decision in the .former appeal, reported in 197 .F. 2d 83, became the law of the case and, as this,court found at that time that it was not a for a directed verdict to be granted..." Rexford Sota Indemnity Company, 5 Cir.. 19@4. 215 F. 2d 695, _- The Rexford cases appear to mé to support the rulings of the district court in the present case; if effect be given to their actual holdings rather than to dictum. Certainly, ‘to my- way of thinking, the cases of U.S.F. & G. Co. rv. Snite, supra, and American Universal Insurance Co. ¥. Stotsberry? sipra are decisions binding upon this Court under the Erie doctrine. Under all. of the.Florida cases which havé either passed upon or discussed an insured’s breach of the cooperation clause of condition, | submit. the injured person may show lack of prejudice to the in- surer and that the failvre of the insured was immaterial! —and unsubstantial ‘and, hence, not a breach of the coopera- tien clause within the fair intendment and purpose of that: clause. 1 think that the judgment should be affirmed. and therefore respectfully dissent. App. 37 28 U.S.C. § 48 Terms of court Terms -or sessions of.courts of appeals shall be held _ annually at the places listed below, and at such other places - within the respective circuits as may be designated by rule of court.’ Each court of appeals may hold special terms at any place within its circuit. — _ Circuits Places District of Columbia Washington. First . Boston. Second .___.. New York. Third Philadelphia. . Fourth - Richmond, Asheville. Fifth - New Orleans, Atlanta, Fort Worth, Jacksonville, Montgomery. Sixth Cineinnati. Seventh Chicago. Aas Fighth : St. Louis, Kansas City, Omaha, . St. Paul. Oey Ninth . - San Francisco, Los Angeles, Port- ‘ , land, Seattle. - | Tenth Denver, Wichita, Oklahoma City. Any court of appeals may, with the consent of the Judicial Conference of the United States, pretermit any regular term or session of. the court at any place for in- sufficient business or other good cause. As amended Oct. 31: 1951, c- 655, § 36, 65 Stat. 723. , App. 38 - RULES OF THE UNITED STATES COURT OF APPEALS FIFTH CIRCUIT Rule 3. Terms A session of this court shall be held annually at the citw of Atlanta, Ga.; at the city of Montgomery,.Ala.; at the city of Fort Worth, Tex.; at the city of Jacksonville, Fla.; and at the city of New Orleans, La., and shall be ad- journed to such other times and places as the court may from time‘to time order and designate. \ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1621%3A3. Public record. Not legal advice.