Am. Employers Ins. Co. v. Worden

• Decision Date: 01 December 1942
• Citation: 29 A.2d 417
• Parties: AMERICAN EMPLOYERS INS. CO. v. WORDEN et al.
• Court: New Hampshire Supreme Court

29 A.2d 417

AMERICAN EMPLOYERS INS. CO.

v. WORDEN et al.

Supreme Court of New Hampshire. Rockingham.

Dec. 1, 1942.

Transferred from Superior Court, Rockingham County; Lorimer, Judge.

Proceeding by the American Employers Insurance Company against Roland Worden and another for a declaratory judgment determining the validity of a provision in an employer's motor vehicle liability insurance policy excluding coverage of action against insured's employee for injury to fellow employee in accident arising from use of vehicle in insured's business. Question transferred to the Supreme Court without ruling.

Case discharged.

Petition, for a declaratory judgment. The plaintiff issued a motor vehicle liability policy to an employer. While one of the employer's motor vehicles was in use in its business, an accident occurred. Both the driver and a rider were acting at the time in the course of their employment as servants of the employer. The rider was hurt in the accident and has brought suit against the driver.

The policy provides that it does not furnish coverage for an action against an employe because of injury or death to another employe injured while in the course of his employment in an accident arising out of the use of the motor vehicle in the named insured's business.

The question whether the exclusion is valid has been transferred without ruling by Lorimer, J.

Sewall, Varney & Hartnett, of Dover, by brief, for plaintiff.

Hughes & Burns, of Dover, by brief, for injured employe.

The employer and the employe driver entered no appearances.

ALLEN, Chief Justice.

The contention that the defendant who has brought suit is an insured within the provisions of the policy is met by the specific provision that such a person is not to be defined as insured.

Answer to the question accordingly depends upon the construction of the act, Laws 1937, c. 161, § 16, providing that no motor vehicle liability policy shall be issued unless its form shall meet the requirements of the act and unless the form has received the insurance commissioner's approval in its specification of a number of requirements, including that of "the limits of liability".

It was held under the 1927 act, Laws 1927, c. 54, that a motor vehicle liability policy might be approved by the commissioner if it excluded from the coverage "special uses calling for special rates." Raymond v. Great American Indemnity Company, 86 N.H. 93, 101, 163 A. 713, 717; Continental Casualty Co. v. Buxton, 88 N. H. 447, 191 A. 1. In the former case an exclusion of coverage for passengers for hire was held permissible. In the latter case the clause of the policy excluding liability of a renter or driver of a car of the named insured for injuries to...