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The rationale of the order of dismissal is contained in
the following excerpt therefrom:
After having considered Plaintiff's claim as
stated in its Amended Complaint, the policy~of
insurance. attached thereto, together with De- .
fendant's motion, the Court finds as a matter-
of law that the policy of insurance~is a per-
sonal contract between the named insureds, Mr.
and 24rs. Kral, and Defendant, to insure the
Krals' interest in the covered property, and
not the property itself. And since there is
no reference whatsoever to Plaintiff in the
policy, either expressly or impliedly, and
further since there is nothing in the policy
to show that the parties intended in any way ~ .
to benefit Plaintiff, Plaintiff is precluded
from maintaining a cause of action on the~poli-
cy against Defendant, INDIANA INSURANCE COMPANY,
. On motion for rehearing appellant exhibited a nronnseci
second amended complaint which alleged, among other things, that
the Krals had agreed to insure-the property against the usual
hazards, including fire, for the benefit of appellant, .which in-
surance policy would comply with the terms of the mortgage deed
from appellant to appellee, Community Federal. -The court refused
the proposed amendment because it was the view of the trial judge
that no cause of action would be stated even with-the amendment.
The issue as framed by the appellant is whether "a
:`'?~rtgagor may bring suit as a third party beneficiary to enforce
Ij a promise by an insurer to pay his Mortgagee to the extent of _
I
the riortgagee's loss as its interests appear, where the Mortgagee
is named as loss-payee in afire insurance policy." Appellee
casts the question a little differently: "whether a property
~ owner may recover on a policy of fire insurance in which i_t is
neither named as a r nor r "
pa ty eferred to in any manner.
From the record presented we glean that appellant owned
a piece of improved realty which it leased to the Krals. The
lease contract required Kral to obtain hazard insurance on the
property which would protect the mortgagee as the. mortgagor had
agreed to do in its mortgage contract. The Krals did obtain
said policy. The property was damaged by fire, the mortgagee -
has failed or refused to proceed against the fire insurance
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EGOI~J~?0 PACE~ei~z