Brown v. City of Laconia

• Decision Date: 17 May 1978
• Docket Number: No. 78-006,78-006
• Citation: 118 N.H. 376,386 A.2d 1276
• Parties: Dana BROWN v. CITY OF LACONIA et al.
• Court: New Hampshire Supreme Court

Page 1276

386 A.2d 1276

118 N.H. 376

Dana BROWN v. CITY OF LACONIA et al.

No. 78-006.

Supreme Court of New Hampshire.

May 17, 1978.

Rinden, P.A., Concord (Stephen R. Goldman, Concord, orally), for plaintiff.

Wiggin & Nourie, Manchester (Gordon A. Rehnborg, Jr., Manchester, orally), for defendant Royal Globe Ins. Co.

GRIMES, Justice.

The question in this declaratory judgment action is whether coverage for losses from "Street cleaning including snow removal," for which a separate premium was paid, is limited by an exclusion of claims based on the ownership, maintenance, existence or use of, or the existence of any condition in highways. The exclusion, if valid, would bar coverage of plaintiff's claim that he was injured in an accident caused by the negligent failure of the city to remove ice and snow from the highway.

According to an agreed statement of facts, plaintiff was in an automobile accident on Elm Street, a public way in Laconia, on December 3, 1972. He brought suit against the city to recover for property damage and personal injuries, claiming that the city negligently allowed a known slippery, hazardous condition to remain by failing to remove ice and snow. The defendant Royal Globe Insurance Company had in force a comprehensive general liability policy in favor of the city. One of the hazards insured against, for which a separate charge was made, was "Street cleaning including snow removal." Twenty-five pages later in the policy agreement there is an "Exclusion of Streets and Sidewalks" endorsement in which it is "agreed that this insurance does not apply to any claim for damages which arise out of or is in any way caused by

A. THE OWNERSHIP MAINTENANCE EXISTENCE OR USE OF OR THE EXISTENCE OF ANY CONDITION IN HIGHWAYS ROADS STREETS SIDEWALKS TRAFFIC CONTROL DEVICES OR SIGNS REFUSE RECEPTACLES STREET DECORATIONS FIRE HYDRANTS SIDEWALK BENCHES OR THE LIKE OR ANY ACT OR OMISSION IN CONNECTION WITH ANY OF THE FOREGOING BY ANY INDIVIDUAL OR DEPARTMENT

B. THE CONSTRUCTION OR REPAIR OF ANY OF THE FOREGOING UNLESS SUCH CONSTRUCTION OR REPAIR WORK IS COVERED BY THE POLICY AND THE ACCIDENT OCCURS BY REASON OF THE WORK AND WHILE IT IS ACTUALLY IN PROGRESS"

The company denied coverage, and the city pleaded governmental immunity. The plaintiff brought this action to have the coverage question determined and Keller, C. J., transferred all questions without ruling.

Pursuant to RSA 412:3 (Supp.1977), the city loses its immunity up to the limit of insurance coverage on any risk insured against.

The well-established rule in this State is that insurance policies are interpreted from the standpoint of the average layman "in light of what a more than casual reading of the policy would reveal to an ordinarily intelligent insured." Aetna Ins. Co. v. State Motors, 109 N.H. 120, 125, 244 A.2d 64, 67 (1968). The burden of proof on the issue of coverage is on the insurance company pursuant to RSA 491:22-a (Supp.1977). Contrary to the...