Dotschay v. Nat'l Mut. Ins. Co., 246 F.2d 221 (5th Cir. 1957). · Go Syfert
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Dotschay v. Nat'l Mut. Ins. Co., 246 F.2d 221 (5th Cir. 1957). Cases Citing This Book View Copy Cite
72 citation events (8 in the last 25 years) across 27 distinct courts.
Strongest positive: Groeneweg v. Jeld-Wen, Inc. (ord, 2020-12-10)
Treatment trajectory · 1957 → 2026 · click a year to view as-of
1957 1991 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
cited Cited as authority (rule) Groeneweg v. Jeld-Wen, Inc.
D. Or. · 2020 · confidence medium
Co., 246 F.2d 221, 223 (5th Cir., 1957)); see also Maxwell v. McLane Pac., Inc., 2017 WL 8186758 , 9 (C.D.
discussed Cited as authority (rule) Winstead v. Lafayette County Board of County Commissioners
N.D. Fla. · 2016 · confidence medium
Co., 246 F.2d 221, 223 (5th Cir.1957) (“[A] complaint is not to be dismissed because the plaintiffs lawyer has misconceived the proper legal theory of the claim, but is sufficient if it shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief.”). 2 What this all means is that when two theories based on the same facts—and part of a single claim for relief—are presented in a complaint, and a defendant only challenges the sufficiency of the complaint as to one of the theories, the claim cannot be dismissed.
cited Cited as authority (rule) Pereira v. Binet (In Re Harvard Knitwear, Inc.)
Bankr. E.D.N.Y. · 1993 · confidence medium
Co., 246 F.2d 221, 223 (5th Cir.1957) (emphasis in original).
discussed Cited as authority (rule) Emil J. Bartholet v. Reishauer A.G. (Zurich) and Reishauer Corporation (Elgin)
7th Cir. · 1992 · confidence medium
See also Frantz v. United States Powerlifting Federation, 836 F.2d 1063, 1067-68 (7th Cir.1987); American Nurses’ Ass’n v. Illinois, 783 F.2d 716, 723, 726-27 (7th Cir.1986); Janke Construction Co. v. Vulcan Materials Co., 527 F.2d 772, 776-77 (7th Cir.1976); Dotschay v. National Mutual Insurance Co., 246 F.2d 221, 223 (5th Cir.1957).
discussed Cited as authority (rule) WJA Realty Ltd. Partnership v. Nelson
S.D. Fla. · 1989 · confidence medium
A plaintiff “is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief.” Dotschay v. National Mutual Insurance Company, 246 F.2d 221, 223 (5th Cir.1957).
cited Cited as authority (rule) Air Line Pilots Association, International v. Transamerica Airlines, Inc.
9th Cir. · 1987 · confidence medium
Co., 246 F.2d 221, 223 (5th Cir.1957)); see 5 C.
discussed Cited as authority (rule) Candace M. Hanson v. F. Nordy Hoffmann, Sergeant at Arms, His Agents, Predecessors and Successors, United States Senate
D.C. Cir. · 1980 · confidence medium
Co, 246 F.2d 221, 223 (5th Cir. 1957), on the basis of a legal theory never embraced by the plaintiff, as long as that theory is supported by the facts alleged and as long as the defendant is not prejudiced on the merits.
discussed Cited as authority (rule) Mid-Cal National Bank, a National Banking Association, and v. Federal Reserve Bank of San Francisco, Bank of Stockton, And (2×)
9th Cir. · 1979 · confidence medium
The allegation of Stockton’s counterclaim is that Mid-Cal “negligently failed to refer to information which it had in its possession which would have disclosed the existence of said kiting scheme.” I agree that this is an inartful way to allege active conduct on the part of Mid-Cal. Nevertheless, “the Federal Rules of Civil Procedure were designed, and should be interpreted and applied, to do away with this kind of technicality,” Dunn v. TWA, 589 F.2d 408 (9th Cir. 1978), and we should remember that a “complaint is not to be dismissed because the plaintiff’s lawyer has misconceiv…
cited Cited as authority (rule) Nader v. Citron
Mass. · 1977 · confidence medium
Co., 246 F.2d 221, 223 (5th Cir. 1957).
cited Cited as authority (rule) N. T. Greene v. City of Memphis, a Municipal Corporation
6th Cir. · 1976 · confidence medium
Co., 246 F.2d 221, 223 (5th Cir. 1957).
examined Cited as authority (rule) Janke Construction Company, Inc. v. Vulcan Materials Company (3×) also: Cited "see, e.g."
7th Cir. · 1976 · confidence medium
Co., 246 F.2d 221, 223 (5th Cir. 1957): It seems to us that the district court overlooked [in dismissing the complaint] our liberal rule of federal practice under which the complaint is not to be dismissed because the plaintiff’s lawyer has misconceived the proper legal theory of the claim, but is sufficient if it shows that the *777 plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief. 1 In Hoffman v. Red Owl Stores, Inc., 26 Wis.2d 683, 696 , 133 N.W.2d 267, 274 (1965), the Supreme Court of Wisconsin expressly adopted the doctri…
discussed Cited as authority (rule) Janke Construction Co., Inc. v. Vulcan Materials Co.
W.D. Wis. · 1974 · confidence medium
Under Rule 8(a) (2) of the Federal Rules of Civil Procedure, a pleading which contains a claim for relief requires only a “short and plain statement of the claim showing that the pleader is entitled to relief.” As stated in Moore’s Federal Practice, 2d Ed., Vol. 2A, § 8.13, p. 1695: “The courts have recognized that the function of pleadings under the Federal Rules is to give fair notice of the claim asserted so as to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of res judicata, and to show the type of case brought, so that it m…
cited Cited as authority (rule) Huey v. Barloga
N.D. Ill. · 1967 · confidence medium
Co., 246 F.2d 221, 223 (5th Cir. 1957); Dioguardi v. Durning, 139 F.2d 774 (2d Cir. 1944).
cited Cited as authority (rule) Asphaltic Enterprises, Inc. v. Baldwin-Lima-Hamilton Corp.
E.D. Pa. · 1966 · confidence medium
Co., 246 F.2d 221, 223 (5th Cir. 1957); Grafe-Weeks Corp. v. Air Products, Inc., 32 F.R.D. 211 (W.D.Pa.1963); 1A Barron & Holtzoff (Wright ed.), § 276.1).
discussed Cited as authority (rule) United States v. Stanley N. Howell, Warren S. Cochran, Cochran & Howell, a Partnership, Post Cleaners, Thrifty Cleaners
9th Cir. · 1963 · confidence medium
A “complaint is not to be dismissed because the plaintiff’s lawyer has misconceived the proper legal theory of the claim, but is sufficient if it shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief.” Dotschay v. National Mutual Insurance Co., 246 F.2d 221, 223 (5th Cir., 1957).
cited Cited as authority (rule) Harvey Thomas Smoot, Jr. v. State Farm Mutual Automobile Insurance Company
5th Cir. · 1962 · confidence medium
It could declare the rights of the parties, and grant further necessary or proper relief.” 246 F.2d 221 at 222.
discussed Cited as authority (rule) Sol A. Dann, John H. Neville and Louise A. Turek v. Studebaker-Packard Corporation, Harold E. Churchill, Hugh J. Ferry, and A. J. Porta (2×)
6th Cir. · 1961 · confidence medium
C., 5 Cir., 1957, 246 F.2d 221, 223 ( held, court could give a declaratory judgment even where complaint demanded only money damages). 50 E. g., Neff v. Western Cooperative Hatcheries, 10 Cir., 1957, 241 F.2d 357, 363 (damages awarded by court exceeded ad damnum ); Whittaker v. Wall, 8 Cir., 1955, 226 F.2d 868, 872 (only legal relief demanded, legal and equitable relief awarded); Driggers v. Business Mens' Assurance Co. of America, 5 Cir., 219 F.2d 292, 297, 299 , certiorari denied 1955, 349 U.S. 946 , 75 S.Ct. 874 , 99 L.
cited Cited "see" New Amsterdam Casualty Company, and Cross-Appellant v. Gladys N. Waller, and Cross-Appellee
4th Cir. · 1963 · signal: see · confidence high
See United States v. Martin, 10 Cir., 267 F.2d 764 , Dotsehay v. National Mutual Insurance Company, 5 Cir., 246 F.2d 221 ; Hamill v. Maryland Casualty Co., 10 Cir., 209 F.2d 338 ; Kansas City, St.
Retrieving the full opinion text from the archive…
Nick Dotschay, for the Use and Benefit of Olympia Alfonso, and Nick Dotschay, Individually
v.
National Mutual Insurance Company of the District of Columbia
16398_1.
Court of Appeals for the Fifth Circuit.
Jun 10, 1957.
246 F.2d 221
Cited by 54 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 73%
Citer courts: Fifth Circuit (1)

246 F.2d 221

Nick DOTSCHAY, for the use and benefit of Olympia ALFONSO,
and Nick Dotschay, individually, Appellants,
v.
NATIONAL MUTUAL INSURANCE COMPANY of the DISTRICT OF
COLUMBIA, Appellee.

No. 16398.

United States Court of Appeals Fifth Circuit.

June 10, 1957.

Harry Zuckerman, Gerard Ehrich, Miami, Fla., for appellant.

Henry Burnett, Miami, Fla., Fowler, White, Gillen, Yancey & Humkey, Miami, Fla., of counsel, for appellee.

Before RIVES, JONES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

[*~221]1

The complaint was based on the alleged breach of duty of a liability insurer to settle or compromise a claim. The district court was of the opinion that the insured could not use for the use of the injured party, that the cause of action on the part of the insured himself did not accrue until he had satisfied the judgment against him, and since that had not been done, the court dismissed the action 'with prejudice as to the plaintiff Nick Dotschay for the use and benefit of Olympia Alfonso,' and 'without prejudice as to the plaintiff Nick Dotschay, individually.' This appeal ensued

2

It is clear that in Florida a liability insurer is under a duty at least to exercise good faith in the settlement of a claim against the insured,[1] and that is not disputed.

3

The Florida Supreme Court has not decided the question of whether an insured's right of action to recover damages for a breach of that duty accrues only upon his payment of the excess judgment and decisions of that question from other states are in conflict.[2] We do not find it necessary to decide that question in advance of the State courts, for the jurisdiction of the federal district court was more elastic than simply to award damages. It could declare the rights of the parties,[3] and grant further necessary or proper relief.[4]

4

In dismissing the action without prejudice as to the plaintiff Nick Dotschay, individually, the district court expressed the opinion that 'if a cause of action exists for the plaintiff Nick Dotschay it is not one upon which suit was brought herein.' Again, in colloquy with counsel, the court stated: 'I think Nick Dotschay probably could bring an action for declaratory relief * * *.' It seems to us that the district court overlooked our liberal rule of federal practice under which the complaint is not to be dismissed because the plaintiff's lawyer has misconceived the proper legal theory of the claim, but is sufficient if it shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief.[5]

5

We hold, therefore, that the court erred in dismissing the complaint as to the plaintiff Nick Dotschay, individually. It is not necessary upon this appeal to decide whether Nick Dotschay could properly maintain the suit for the use and benefit of Olympia Alfonso. However, since the dismissal of that part of the complaint was 'with prejudice,' out of an abundance of precaution, lest it might be claimed that the judgment of dismissal became res judicata against Olympia Alfonso, the entire judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. See 28 U.S.C.A. § 2106.

[*~222]6

Reversed and remanded.

1

Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852, 859; American Fidelity & Casualty Co. v. Greyhound Corp., 5 Cir., 232 F.2d 89, 93; Tully v. Travelers Insurance Co., D.C.N.D.Fla., 118 F.Supp. 568, 569

2

Payment not a prerequisite: Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785; Schwartz v. Norwich Union Ind. Co., 212 Wis. 593, 250 N.W. 446

Payment required: American Mutual Liability Ins. Co. of Mass. v. Cooper, 5 Cir., 61 F.2d 446, 448; State Automobile Mut. Ins. Co. of Columbus, Ohio v. York, 4 Cir., 104 F.2d 730; Dumas v. Hartford Acc. & Indemnity Co., 92 N.H. 140, 26 A.2d 361. See, also, Annotation 40 A.L.R.2d 190, et seq.

3

' § 2201. Creation of remedy

'In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States and the District Court for the Territory of Alaska, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.' 28 U.S.C.A. § 2201.

4

' § 2202. Further relief

'Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.' 28 U.S.C.A. § 2202.

5

Rules 8(a)(2), 12(b)(6), and 54(c), Federal Rules of Civil Procedure, 28 U.S.C.A.; Keiser v. Walsh, 73 App.D.C. 167, 118 F.2d 13, 14; Kansas City, St. L. & C.R. Co. v. Alton R. Co., 7 Cir., 124 F.2d 780, 783; Hawkins v. Frick-Reid Supply Corporation, 5 Cir., 154 F.2d 88, 89; Schoonover v. Schoonover, 10 Cir., 172 F.2d 526, 530; Blazer v. Black, 10 Cir., 196 F.2d 139, 147; Hutches v. Renfroe, 5 Cir., 200 F.2d 337, 340; Driggers v. Business Men's Assurance Co. of America, 5 Cir., 219 F.2d 292, 297; 6 Moore's Federal Practice, 2nd ed., Para. 54.60, pp. 1203, 1204