Safeco Ins. Co. of America v. Nationwide Mut. Ins. Co.

142 S.E.2d 694 (1965)

264 N.C. 749

SAFECO INSURANCE COMPANY OF AMERICA, Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant.

No. 543.

Supreme Court of North Carolina.

June 18, 1965.

*695 Teague, Johnson & Patterson, Robert M. Clay, Raleigh, for plaintiff appellant.

Dupree, Weaver, Horton & Cockman, F. T. Dupree, Jr., and Jerry S. Alvis, Raleigh, for defendant appellee.

RODMAN, Justice.

It has been judicially established that the negligent operation of a motor vehicle by Blue and Elliott, coupled with the negligent operation of another motor vehicle by Parnell, resulted in injuries to Phillips. The amount of compensation to which he is entitled has been judicially determined. *696 Phillips elected to look to Parnell for compensation. Parnell, as permitted by G.S. § 1-240, had Blue and Elliott made parties for contribution. The judgment which Phillips obtained against Parnell also adjudged Blue and Elliott liable to Parnell for their proportionate part of the compensation for which Parnell was adjudged liaable. The Phillips' judgment has been paid. That payment made Parnell a judgment creditor of Blue and Elliott. They have not challenged the judgment declaring their liability.

If Parnell had used his funds to pay Phillips, he could have collected his judgment by execution against his judgment debtors if they had property sufficient to satisfy the execution, G.S. § 1-302.

Parnell could assign his judgment against Blue and Elliott. When assigned, execution thereon would issue in Parnell's namenot in the name of the assignee. Winberry v. Koonce, 83 N.C. 351, 352; Jones v. Franklin's Estate, 209 N.C. 585, 183 S.E. 732; 49 C.J.S. Judgments § 522, p. 973. If, however, the assignee elected to sue on the judgment, the action could only be maintained in the name of the assignee, G.S. § 1-57. Moore v. Nowell, 94 N.C. 265, 269; Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231; Herring v. Jackson, 255 N.C. 537, 122 S.E.2d 366; Parnell v. Nationwide Mut. Insurance Co., 263 N.C. 445, 139 S.E.2d 723; Shambley v. Jobe-Blackley Plumbing & Heating Co., 264 N.C. 456, 142 S.E.2d 18.

Plaintiff, Parnell's insurer, having discharged Parnell's liability to Phillips, became by operation of law an equitable assignee. As such, it acquired Parnell's rights to enforce payment from Blue and Elliott. Cunningham v. Seaboard Air Line R. R., 139 N.C. 427, 51 S.E. 1029, 2 L.R.A., N.S., 921; Pittman v. Snedeker, 264 N.C. 55, 140 S.E.2d 740; Shambley v. Jobe-Blackley Plumbing & Heating Co., supra.

The fact that plaintiff, as subrogee of Parnell, can by execution or action enforce the judgment liability of Blue and Elliott imposes no obligation on defendant. That obligation, if it exists, results from the contract which defendant made for the benefit of Blue and Elliott. Plaintiff alleges defendant contracted:

"To pay on behalf of the insured [Blue and Elliott] 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. "ACTION AGAINST COMPANY: No action shall lie against the company, unless as a condition precedent thereto, 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 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."

There can be no reasonable doubt that the contract, as alleged, was intended to protect Blue and Elliott from judgments imposing liability on them for the negligent operation of a motor vehicle. Plaintiff, as an equitable assignee of Parnell, succeeding to his rights, can compel defendant to perform its contract. This is true by the express language of the contract, as well as by numerous decisions of this Court. Potter v. Carolina Water Co., 253 N.C. 112, 116 S.E.2d 374; Lammonds v. Aleo Manufacturing Co., 243 N.C. 749, 92 S.E.2d 143; American Trust Co. v. Catawba Sales & Processing Co., 242 N.C. 370, 88 S.E.2d 233.

*697 The facts alleged, and admitted by the demurrer, establish defendant's liability. The admissions are, however, conditional. Defendant may, by answer, controvert any of the facts alleged by plaintiff.

Reversed.