Atwood v. Hartford Acc. & Indem. Co.

• Decision Date: 29 October 1976
• Docket Number: No. 7445,7445
• Citation: 116 N.H. 636,365 A.2d 744
• Parties: Arthur C. ATWOOD v. HARTFORD ACCIDENT & INDEMNITY CO. et al.
• Court: New Hampshire Supreme Court

Page 744

365 A.2d 744

116 N.H. 636

Arthur C. ATWOOD v. HARTFORD ACCIDENT & INDEMNITY CO. et al.

No. 7445.

Supreme Court of New Hampshire.

Oct. 29, 1976.

Wiggin & Nourie and Gordon A. Rehnborg, Jr., Manchester, for plaintiff.

Sheehan, Phinney, Bass & Green and E. Tupper Kinder and Joseph F. Devan, Manchester, for defendant Hartford Accident & Indemnity Co.

KENISON, Chief Justice.

Action by an insured against his insurer for a declaratory judgment that the insurer is obliged to defend the insured and to pay any damages assessed against him in two pending actions. After a trial, Flynn, J., ruled in favor of the insured and reserved and transferred the insurer's exceptions.

The plaintiff insured is a self-employed electrician. He wires outlets and fixtures and occasionally repairs electrical appliances but his trade is primarily the performance of a service rather than the sale of merchandise. On November 6, 1972, the janitor of an apartment house called the plaintiff to repair a thermostat in one apartment. The next day the plaintiff learned that a child had died in the apartment from heat prostration. The plaintiff immediately notified his insurance agent of the potential claim. Subsequently, the administrator of the child's estate brought suit against the plaintiff and against a third party who has sought indemnity from the plaintiff.

The defendant Hartford Accident & Indemnity Co. argues that the actions pending against the plaintiff arise from completed operations, which are excluded from the coverage of the policy. The completed operations exclusion in this policy is a standard provision which has produced considerable litigation in New Hampshire and elsewhere. Whitten Oil, Inc. v. Fireman's Fund Ins. Co., 112 N.H. 257, 293 A.2d 757 (1972); Sun Ins. Co. v. Hamanne, 113 N.H. 319, 306 A.2d 786 (1973); Annot., 58 A.L.R.3d 12 (1974). The question in this case is whether an ordinary person in the shoes of the plaintiff would understand that the policy did not cover claims such as those now pressed against him. Berkshire Mut. Ins. Co. v. LaChance, 115 N.H. 487, 343 A.2d 642 (1975). The objectively reasonable expectations of the insured will be honored even though painstaking study of the policy provisions would have negated those expectations. Magulas v. Travelers Ins. Co., 114 N.H. 704, 327 A.2d 608 (1974); R. Keeton, Insurance Law § 6.3 (1971).

The trial court found: 'A reasonable person in the position of the plaintiff would have believed that he was covered by the policy for any claims against him for negligence in his work as an electrician . . .. There is little in the language and arrangement of this policy which would lead the ordinary person to believe that he had no coverage for injury or property damage which arose after he completed a job.' An examination of the policy confirms these findings.

The policy consists of a 'Declarations-Coverage Part' and a jacket comprised of definitions and conditions. The front page of the declarations-coverage part contains four indications of the coverage of the policy. The top of the page has blanks to be filled in with the name of the insured, the period of the policy, etc. Then, under the heading 'Summary of Advance Premiums,' appear the printed words 'Manufacturers' and Contractors' Liability Insurance' followed by the typewritten amount of the premium. The heading for the bottom half of the page is 'Manufacturers' and Contractors' Liability Insurance Coverage Part and Schedule.' Under the heading 'Coverages' are two categories: 'A-Bodily Injury Liability' and 'B-Property Damage Liability.' The plaintiff secured both coverages, and the amount of the premium and the limits of liability in dollars are typewritten in the space provided for each coverage. The final section of the page contains the rating classification, premium base, rates and premium. The rating classification is typed in as follows 'ELECTRICAL WIRING WITHIN BUILDINGS INCLUDING INSTALLATION OR REPAIR OF FIXTURES OR APPLIANCES (.) INSTALLATION OF ELECTRICAL MACHINERY OR AUXILIARY APPARATUS TO BE SEPARATELY RATED(.)' A reasonable person reading this page could only conclude that the policy covers the claims being asserted against the plaintiff.

On the back of this page, at the top, is the heading 'Manufacturers' and Contractors' Liability Insurance Coverage Part.' Below this is a smaller heading of critical significance, which is considered in the next paragraph. The balance of the page is divided into two columns. At the top of the left-hand column is the heading:

Coverage A-Bodily Injury Liability

Coverage B-Property Damage Liability

The first...