Liability Insurance – Cooperation Clause – Failure of Cooperation Absent a Finding of Prejudice
Plaintiff insurance company sought a declaratory judgment absolving it from obligation on an automobile liability insurance policy on the ground that there had been a breach of the cooperation clause. Johnston, the insured, was the driver of a car involved in an accident in Crawford County, Kansas, giving rise to substantial claims by defendant Elliott. At the request of Elliott’s attorney, Johnston traveled from his home in Kansas to submit to service of process in Missouri. When plaintiff questioned this behavior, Johnston lied, denying that collusion had prompted his appearance in Missouri. On appeal from summary judgment for plaintiff company, held, affirmed, one judge dissenting. Where collusive service to which the insured would not otherwise· be amenable is combined with outright falsehood, the cooperation clause must be deemed violated. Elliott v. Metropolitan Casualty Ins. Co. of New York, (10th Cir. 1957) 250 F. (2d) 680.