American Employers Ins. Co. v. Liberi
| Decision Date | 23 January 1959 |
| Citation | 147 A.2d 306,101 N.H. 480 |
| Parties | AMERICAN EMPLOYERS' INSURANCE COMPANY v. Bernard H. LIBERI et al. |
| Court | New Hampshire Supreme Court |
Sheehan, Phinney, Bass, Green & Bergevin and Richard A. Morse, Manchester, for plaintiff.
O. J. Gregoire, Dover, for defendants Bernard H. and Bertha M. Liberi, furnished no brief.
Fisher, Parsons & Moran, Dover, Harold D. Moran, Dover, orally for defendants.
Whether the defendants cooperated with the plaintiff as required by the terms of the policy presented an issue of fact. Glens Falls Indemnity Co. v. Keliher, 88 N.H. 253, 187 A. 473. Evidence indicating non-cooperation was the failure of the defendants to submit a signed statement of the accident from November 26, 1947, until August 19, 1954, when the plaintiff instituted this petition for declaratory judgment and their neglect to mail a statement which they promised in April 1948. There was also evidence of cooperation in that the defendants never refused to take with the plaintiff's investigators, and that their refusal to sign statements in April 1948 was because they were considered inaccurate. When a written statement was taken on August 10, 1954, they did not sign it until examined by their attorney who forwarded it August 23, 1954, after this declaratory action was brought.
Petitions for declaratory judgment were first authorized by Laws 1929, c. 86, now RSA 491:22. The right to trial by jury of issues presented by such a petition was considered by this court in Employers Liability Assurance Corp. v. Tibbetts, 96 N.H. 296, 75 A.2d 714. As was then pointed out, the provision of the statute that such actions be presented by 'petition' does not make them proceedings in equity for that reason alone; and the parties have a right to trial by jury of issues presented in actions for declaratory relief if the same issues would be so triable when presented in common-law actions. Id., 96 N.H. 298, 75 A.2d 716.
If there was no provision for declaratory relief in this jurisdiction, the issue submitted to the jury in this case was one which would normally be presented by an action at law by the insureds for breach of the agreement of insurance. Since in such an action the insurer would be entitled as a matter of right to have the issue decided by jury, it was similarly entitled to have the verdict of the jury in the pending petition for declaratory relief accorded binding effect. Dickinson v. General Accident Fire & Life Corp., 9 Cir., 1945, 147 F.2d 396. Hence the Trial Court was in error in treating the verdict as advisory and...
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