Brack v. Middlesex Mut. Ins. Co., 7743
| Decision Date | 03 February 1978 |
| Docket Number | No. 7743,7743 |
| Parties | John BRACK, Administrator Estate of Judith Brack v. MIDDLESEX MUTUAL INSURANCE CO. et al. |
| Court | New Hampshire Supreme Court |
Craig, Wenners, Craig & McDowell and Arthur M. Connelly and Vincent A. Wenners, Jr., Manchester, for John Brack.
Devine, Millimet, Stahl & Branch and Gregory D. Prymak and E. Donald Dufresne, Manchester, for Middlesex Mutual Insurance Co.
This case arises from a single-car automobile accident on May 12, 1974, in which the plaintiff's decedent was killed. The plaintiff brought a petition for declaratory judgment to determine whether Middlesex Mutual had the obligation to provide uninsured motorist coverage for decedent's injuries. The defendant answered and the petition was submitted on an agreed statement of facts. The court filed its decree on November 19, 1976, finding that there was no duty to extend coverage. The plaintiff seasonably excepted to the decree, and all questions of law were reserved and transferred by Perkins, J.
On May 12, 1974, Judith Brack was a passenger in a car owned and operated by Thomas Bennett. Bennett was insured under a policy providing for liability coverage with $20,000/40,000 limits, issued by Fireman's Fund Insurance Company. Judith Brack also had insurance under a policy issued by the defendant, Middlesex Mutual Insurance Company, which provided, uninsured motorist protection up to $20,000/40,000. Her father brought this action as administrator of her estate, claiming that his daughter's injuries were greater than the $20,000 limit of Bennett's policy and that Middlesex Mutual had the obligation to provide coverage for the excess under the uninsured motorist provisions of Judith Brack's policy.
The plaintiff requested Middlesex Mutual to consent to a settlement with Fireman's Fund for the full $20,000 of Bennett's policy, but Middlesex Mutual advised him that it would not do so because it had no obligation to provide uninsured motorist coverage to Miss Brack and therefore had no right or obligation under her policy to furnish consent. The plaintiff advised Middlesex Mutual that such withholding of consent was unreasonable and thereafter settled with Fireman's Fund for $20,000, the full amount of Bennett's policy. Middlesex Mutual took the position that this unilateral settlement violated an applicable exclusion of Judith Brack's policy, thereby vitiating its obligation to provide any coverage thereunder.
The first issue that must be decided is whether the insured can recover under her own $20,000/40,000 uninsured motorist endorsement where the defendant motorist has liability insurance...
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