in that the Texas defendant, as agent for the insurance companies, had assumed the responsibility for keeping plaintiff's property insured and that he was responsible for anything that would result in the defeat of her recovery on either one of the policies. The Supreme Court in remanding the case to the state courts upon the ground that there was no right to removal enunciated the following criteria: (1) 'that where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under Sec. 1441(c)'; and (2) 'in making this determination we look to the plaintiff's pleading, which controls.'
In applying that criteria in the Finn case the Court noted that 'the single wrong for which relief is sought is the failure to pay compensation for the loss on the property' and that the 'liability lay among three parties, but it was uncertain which one was responsible.' The Court then added:
'The past history of removal of 'separable' controversies, the effort of Congress to create a surer test, and the intention of Congress to restrict the right of removal leads us to the conclusion that separate and independent causes of action are not stated. The facts in each portion of the complaint involve Reiss, the damage comes from a single incident. The allegations in which Reiss is a defendant involve substantially the same facts and transactions as do the allegations in the first portion of the complaint against the foreign insurance companies. It cannot be said that there are separate and independent claims for relief as Sec. 1441(c) requires. Therefore, we conclude there was no right to removal.' 341 U.S.at page 16, 71 S. Ct.at page 540, 95 L. Ed. 702.
In the instant case the plaintiff seeks to recover for loss and damage to its school building arising from a fire and/or explosion. It is obvious that as to that loss plaintiff can be compensated only once, whether it be from the insurance companies or from one or more of the other defendants. With respect to the claims against the insurance companies the removing defendants contend that each of the 14 policies constitutes a separate and independent transaction between plaintiff and the issuing defendant, constituting a separate and independent cause of action, and an interlocked series of transactions. They further contend that the separateness of these causes of action cannot be dissipated by an allegation of joint liability in the fifteenth count.
I do not agree with these defendants that the mere issuance of separate policies of insurance constitute separate and independent claims in the light of the criteria established in the Finn case. It would be unrealistic to view the not uncommon practice of multi-policy insurance coverage of property as establishing the requisite independence to the claims asserted, particularly, since a finding of liability against one insurance company would, in all probability, establish the liability of all insurance companies, and plaintiff would be entitled to but one recovery for its actionable wrong. Mr. Justice Reed, in the Finn case, stated:
'In a suit covering multiple parties or issues based on a single claim, there may be only one cause of action and yet be separable controversies. The addition of the word 'independent' gives emphasis to congressional intention to require more complete disassociation between the federally cognizable proceedings and those cognizable only in state courts before allowing removal.' 341 U.S.at page 12, 71 S. Ct.at page 539.
Looking beyond the plaintiff's pleadings we find that the answers of all the insurance companies are virtually identical and based on standard defenses. Aside from the fact that the issues involved as to all insurance companies will be the same and the plaintiff should be able to litigate its right to recover in one forum,
I am convinced that the fourth separate defense which is incorporated in each of these answers rebuts the view that this group of insurance policies involve unrelated transactions. This defense states:
'Fourth Separate Defense to First Count
'1. Said policy of insurance contains the following terms, provisions and conditions:
"This Company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not.'
'2. By reason whereof, defendant, if liable to plaintiff in any sum, which is denied, is not liable for a greater proportion of the loss than the amount insured by its said policy of insurance bears to the whole insurance, whether collectible or not, covering the property insured thereby.'
The right of the insurance companies to pro-rate their alleged liability under this clause will depend upon whether each of the policies covers the property against the peril involved. The identity of this issue with respect to all the insurance companies and the necessity for the plaintiff, in order to obtain full recovery under the policies, to make all these companies defendants clearly reinforces the view that there is present an interlocked series of transactions, and thus, no separate and independent controversy involving the non-resident insurance companies as distinct from the resident company.
Since this case must be remanded in the light of this holding, there is no need to discuss whether the claims against the removing defendants are separate and independent from those based on the negligence of the non-insurance company defendants.
An order for remand of this case should be submitted.