Baranski v. Mass. Bonding & Ins. Co., 1352.

• Decision Date: 25 February 1938
• Docket Number: No. 1352.,1352.
• Citation: 197 A. 390
• Parties: BARANSKI v. MASSACHUSETTS BONDING & INS. CO.
• Court: Rhode Island Supreme Court

197 A. 390

BARANSKI

v. MASSACHUSETTS BONDING & INS. CO.

No. 1352.

Supreme Court of Rhode Island.

Feb. 25, 1938.

Appeal from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Bill by Walter Baranski, p. a., against the Massachusetts Bonding & Insurance Company to reach and apply funds in the hands of defendant to satisfaction of a judgment obtained by complainant in an action on the case for negligence against one insured by defendant under an automobile liability insurance policy. From a decree dismissing the bill, complainant appeals.

Appeal denied and dismissed, and decree affirmed and cause remanded.

Goldberg & Goldberg and Patrick H. Quinn, all of Providence, for complainant. Henry M. Boss and Herbert Tiemann, both of Providence, for respondent.

CONDON, Justice.

This is a bill in equity to reach and apply certain funds in the hands of the respondent to the satisfaction of a judgment obtained by the complainant in an action of the case for negligence against one Windeford A. Elderkin, who was insured by the respondent under an automobile liability insurance policy. The cause was heard in the superior court on bill, answer, replication, and proof, and resulted in the entry of a final decree dismissing the bill. From this decree, the complainant has duly appealed to this court.

Briefly, the facts are these: On January 1, 1935, the respondent contracted to insure Elderkin, in Massachusetts, for statutory coverage under the compulsory liability insurance law of that state, G.L. Mass.(Ter.Ed.) c. 175, § 113A et seq., and also for extraterritorial and property damage coverage. A policy was not at that time issued to Elderkin as he had not paid the premium, but a certificate of the making of the contract for the policy was sent to the Massachusetts registrar of motor vehicles to enable Elderkin to obtain registration plates for his vehicle in that state. There was a separate premium charge specified for each coverage above mentioned, and in the aggregate they amounted to $50. This amount remained wholly unpaid on March 1, 1935, and on that date the respondent sent to Elderkin by registered mail a notice of cancellation of the entire policy, a copy of which is in evidence, effective as of March 21, 1935.

Under the provisions of the Massachusetts Compulsory Liability Insurance Law, Elderkin complained to the Insurance Commissioner of that state that said cancellation was unreasonable and improper. This complaint was heard before the board of appeal provided for in such cases on March 27, 1935, and subsequently that body entered an order that the cancellation of the statutory coverage, required under the said compulsory liability statute, was reasonable and proper and should be effective as of May 13, 1935. Thereupon, as provided by law, Elderkin appealed from the decision of the board of appeal to the superior court of Massachusetts, and this appeal suspended the operation of the board's order.

The effect of this procedure was to leave Elderkin still covered by insurance as required by the Massachusetts Compulsory Liability Insurance Law, notwithstanding his nonpayment of premium and the notice of cancellation sent him by the company. The parties in the instant case are not in conflict on this point. The conflict arises over whether only the statutory coverage required by the Massachusetts law remained in effect, or whether the extraterritorial coverage, which was not required by that law, also continued in. effect. This latter coverage is what the complainant here relies upon to support his bill, and he admits that he must show that such coverage remained in effect, notwithstanding the attempted cancellation notice sent by the respondent to Elderkin, or else he cannot recover.

The complainant was injured by Elder-kin's truck, which was designated in this insurance policy, on March 27, 1935, in Rhode Island. Actions at law were brought here by the complainant against Elderkin and the person who was operating his truck at the time of the accident, and a judgment against each of them in the sum of $2,000 was obtained and remained unpaid at the time complainant brought the present suit. The respondent declined to defend these actions on the ground that at the time of the accident it was not the insurer of Elderkin for extraterritorial coverage.

The construction of this policy is to be determined by the law of Massachusetts at the time the contract of insurance was made, and the notice of cancellation must be construed...