Opinion
Matthews, Payne, Pace, Sands & Benners, by John A. Pace, Dallas, Tex., for plaintiff.
Bailey & Williams, by James A. Williams, Dallas, Tex., for defendant, Foreign Credit Ins. Assn.
Melvin M. Diggs, U.S. Atty., Kenneth J. Mighell, Asst, U.S. Atty., Dallas, Tex., for defendant, Export-Import Bank of Washington.
FINDINGS OF FACT
HUGHES, District Judge.
1. Plaintiff, Charles J. Joseph, is a citizen of Texas residing in Dallas, Texas. Defendant is Foreign Credit Insurance Association, such association being made up of various insurance companies, and the Export-Import Bank of Washington, an agency of the U.S Government.
2. On August 22, 1962, Leantex Export Company, a Texas corporation, was issued Policy No. S-83 by the defendant providing that the defendant would indemnify the Plaintiff for 85% Of the amount of Plaintiff's loss incurred in connection with eligible shipments caused by failure of the buyer to pay, said indemnification to be in accordance with the terms of the policy.
3. Goods were shipped to Machetex Export Company, a partnership, composed of D. Macheto and Paul Benkemoun by Leantex Export Company on September 14, 1962, September 18, 1962, September 25, 1962, October 18, 1962 and October 25, 1962 in the amounts and due dates set out on Schedule A attached to Plaintiff's complaint. The total amount of said shipments was $9,465.10. Goods were shipped on August 28, 1962, to D. Macheto in the amount of $4,700.00. Other shipments were alleged, but no proof offered by the Plaintiff.
4. Premiums were paid sufficient to cover the shipments of September 14, 1962, September 18, 1962, September 25, 1962, October 18, 1962, and October 25, 1962.
5. Leantex Export Company had in its possession at the time credit was extended for the above set out shipments, other than those shipped on August 28, 1962, credit information on the firm of Machetex Export Company and its partners, Paul Benkemoun and Dave Macheto, within the provisions of Article IV-B-1 of the insurance policy.
There was no credit information in the file relating to the shipments of August 28, 1962.
6. Payment was not made for any shipments within six months of the due date.
7. The loss is not excluded under any subdivision of Article V of the policy.
8. Notice of loss was given the Company in accordance with policy provisions.
9. The limit of liability for shipments to any one entity under the terms of the policy is $6,000.00.
10. The total amount of claims against Dave Macheto, Paul Benkemoun and Machetex Export Company totals $17,740.80.
11. The claim under the policy was assigned to Plaintiff, Charles J. Joseph.
12. The Plaintiff made a settlement with Machetex Export Company of the claim by receiving from Machetex Export Company $1,750.00 cash and ten drafts, each in the amount of $1,000.00, which drafts were never paid, said total amount of the settlement being approximately 66% Of the claim of $17,740.80.
13. Included in the amount of the settlement were the shipments to Machetex Export Company by Leantex Export Company on September 14, 1962, September 18, 1962, September 25, 1962, October 18, 1962, and October 25, 1962, the total amounts of said shipments being $9,465.10. Sixty-six per cent of the loss from such shipments to Machetex Export Company is $6,246.96.
14. The policy provides that the insurance companies are the insurer for 50% Of the coverage and Export-Import Bank is the insurer for 50%.
CONCLUSIONS OF LAW
1. The due date for payment of the shipments being within 180 days, Plaintiff is not precluded from recovering by reason of the extension of time provided in the settlement agreement.
2. The settlement agreement entered into between Plaintiff and Machetex Export Company does not work to reduce the amount of the claim against Defendants by reason of the shipments to Machetex Export Company of September 14, 1962, September 18, 1962, September 25, 1962, October 18, 1962, and October 25, 1962 below $6,000.00, the limit of liability to one entity.
3. The limit of liability to any one entity being $6,000.00, the Plaintiff is entitled to recover $5,100.00, being 85% Of $6,000.00 as provided in the policy for its loss on shipments to Machetex Export Company.
4. The Plaintiff having been assigned the claim is entitled to recover the full amount of $5,100.00.
5. Fifty per cent of such judgment is against the companies and fifty per cent against Export-Import Bank.