Breen v. Aetna Cas. & Sur. Co.

• Citation: 153 Conn. 633,220 A.2d 254
• Court: Supreme Court of Connecticut
• Decision Date: 17 May 1966
• Parties: Donald BREEN v. The AETNA CASUALTY AND SURETY COMPANY et al.

Page 254

220 A.2d 254

153 Conn. 633

Donald BREEN v. The AETNA CASUALTY AND SURETY COMPANY et al.

Supreme Court of Connecticut.

May 17, 1966.

J. Kenneth Bradley, Bridgeport, with whom were Robert J. Cooney, Bridgeport, and, on the brief, Edgar W. Bassick, III, Bridgeport, for appellant (named defendant).

Warren W. Eginton, Stamford, with whom, on the brief, were Francis J. McNamara, Jr., and John F. Spindler, Stamford, for appellee (plaintiff).

Jacob D. Zeldes, Bridgeport, with whom, on the brief, were David Goldstein and L. Douglas Shrader, Bridgeport, for appellee (defendant Anthony admr.).

Before KING, C.J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

SHANNON, Associate Justice.

This was a declaratory judgment action involving the coverage of a motor vehicle liability insurance policy issued by the named defendant, hereinafter referred to as Aetna, to the plaintiff, covering, for a period of one year beginning September 21, 1958, a 1955 station wagon owned by him. The policy had been procured from Aetna's New York office by John N. Ledbetter, a relative of the plaintiff, who was, and in the matter acted as, an insurance broker. He was not an Aetna agent. The plaintiff at all times lived with his wife, Marion W. Breen, at their home in Bronxville, New York, where the policy stated that the covered car was ordinarily to be garaged. Ledbetter was a resident of Larchmont, New York, at least until September 1, 1958.

In the early morning of January 25, 1959, the plaintiff was operating the station wagon on the Merritt Parkway, in Greenwich, Connecticut, when he lost control of the car. It overturned, and Mrs. Breen, a passenger in the front seat, died almost immediately as a result of the injuries she sustained. The plaintiff was unhurt, no other car was involved, and there was no property damage except to the plaintiff's car.

Under Connecticut law, interspousal suits are permitted. Under New York law, they are permitted by statute, but under § 167(3) of the New York Insurance Law, McKinney's Consol.Laws, c. 28, liability to a spouse is not covered by a motor vehicle liability insurance policy 'unless express provision relating specifically thereto is included in the policy.' Since there was no such express provision in the policy, Aetna made the claim that there was no coverage of this particular accident.

The defendant Lloyd W. Anthony was appointed administrator in Connecticut of Mrs. Breen's estate, and in that capacity, on January 13, 1960, instituted an action in this state against the plaintiff under our wrongful death statute. See General Statutes § 52-555. After institution of that action, Aetna, on January 27, 1960, first disclaimed liability, and this declaratory judgment action was then brought.

The trial court held that the policy covered the plaintiff's liability in the wrongful death action and concluded, as separate and independent grounds for its judgment, (1) that Aetna's special defense that the contract was made in New York was not proven; (2) that the policy contract was to have its operative effect in Connecticut and, so, would be governed by Connecticut law regardless of where the contract was made; (3) that in any event Aetna had waived, and (4) was estopped from taking advantage of, any exemption from coverage accorded by § 167(3) of the New York Insurance Law.

For four or five years prior to September 21, 1958, the plaintiff had purchased, through Ledbetter as his broker, annual motor vehicle liability insurance policies from Aetna. The personal injury limits of the policy in question were $100,000 for injuries to any one person, $300,000 for injuries in any one accident and $10,000 property damage for any one accident. The policy covered liability for personal injuries including death 'sustained by any person * * * arising out of the ownership, maintenance or use' of the plaintiff's car. In the quoted language relevant to this controversy, the policy did not differ from that of the policy before this court in Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 252, 205 A.2d 780. There was no exclusionary provision or any wording even remotely suggesting that interspousal actions were not covered, whether occurring in New York or elsewhere. But there was nothing in the policy indicating that it was made elsewhere than in New York. The general rule is that the validity and the construction of a contract are determined by the law of the place where the contract was made. But if the contract is to have its operative effect or place of performance in a jurisdiction other than the place where it was entered into, our rule is that the law of the place of operative effect or performance governs its validity and construction. See Jenkins v. Indemnity Ins. Co., supra, 253, 205 A.2d 780, and cases cited.

In the instant case, in the declarations portion of the policy, the plaintiff stated that his residence was in Bronxville, West, New York, and that his automobile would be principally garaged there. The original automobile insurance policy issued to the plaintiff by Aetna was made up, prepared and written at one of Aetna's New York offices in 1953. All renewal policies of the original policy were made up, prepared and written by Aetna in New York. The present renewal of the policy was prepared by Aetna at its branch office on Forty-Second Street, in New York City, prior to August 14, 1958, was signed by the printed facsimile signature of Henry Beers, president and secretary of Aetna at Hartford, Connecticut, and was countersigned by one of Aetna's assistant vice presidents in the state of New York. The policy number and letters indicate that it is a New York policy. The policy was sent by mail from the Forty-Second Street branch office on or about August 14, 1958, to Ledbetter. He, as a broker, represented the plaintiff, who is his brother-in-law. Ledbetter received the policy and mailed it to the plaintiff. The policy was considered 'issued' upon its deposit in the mail addressed to Ledbetter. There is no provision in the policy which gave Aetna the power to recall it from the insured or his agent once it had been issued. Aetna never requested either the plaintiff or Ledbetter to return the policy.

In the instant case therefore, the law of New York will apply unless the contract was to have its operative effect elsewhere. The court concluded that the contract (policy) issued to the plaintiff is governed by the law of Connecticut because the parties intended that it was to have its beneficial operative effect and performance here. This claim hardly seems consistent with the purpose of the parties in entering into the contract. Presumably, that purpose was to fix in advance their rights and liabilities in the event of an accident, at least so far as the construction and the interpretation of the contract are concerned, rather than to leave them dependent on the fortuitous circumstances of the place of the accident. Indeed, the assumption underlying our applicable conflicts rule is that, when parties enter into a contract, they do so with the law of a specific jurisdiction in mind. Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 254, 205 A.2d 780. There is nothing in the instant case to suggest that this assumption is unfounded with respect to this insurance contract. The policy gives no hint that the parties thought of this contract as other than a New York transaction. In the absence of a showing that the place of operative effect of this contract was not New York, the validity and the construction of the contract are governed, under our rule, by the law of New York, where the contract was made.

The New York Court of Appeals has held that (1) § 167(3) of the New York Insurance Law 'is mandated into and made a part of every policy of automobile liability insurance issued in * * * (New York)' and (2) the legislature intended that the statute apply 'no matter where the accident occurs.' New Amsterdam Casualty Co. v. Stecker, 3 N.Y.2d 1, 5, 8, 163 N.Y.S.2d 626, 143 N.E.2d 357. As New York law is to govern, the decision of New York's highest court authoritatively determines the construction of the insurance policy in the light of the statute. Jenkins v. Indemnity Ins. Co., supra, 152 Conn. 255, 205 A.2d 780; Roomy v. Allstate Ins. Co., 256 N.C. 318, 322, 123 S.E.2d 817.

The claim that the words 'any person' in the policy satisfies the statute's requirement of specificity in including coverage in interspousal actions is without merit. Coverage for Mrs. Breen's injuries and death is excluded by virtue of § 167(3). Nor has the plaintiff shown that it would be contrary to the public policy of Connecticut to apply the law of New York to this particular action, in which a New York resident is the injured party and a Connecticut insurance company, doing business in New York, is the insurer. Jenkins v. Indemnity Ins. Co., supra. Indeed, the law of New York is the same as the law of Connecticut so far as the existence of negligence liability between the spouses, as distinguished from an insurance carrier, is concerned. Suffice it to say that whether the carrier is liable for indemnity has no bearing on the liability of one spouse to the other in tort. New Amsterdam Casualty Co. v. Stecker, supra, 3 N.Y.2d 8, 163 N.Y.S.2d 631, 143 N.E.2d 360. As a matter of fact, the premium charged for the policy did not contemplate coverage for suits between spouses. Consequently, the plaintiff is not being deprived of anything for which he contracted or paid.

This determination would be dispositive of the appeal, adversely to the plaintiff's contentions, but for the plaintiff's claims that Aetna has waived or is estopped to avail itself of any rights which it might have under § 167(3). The plaintiff has alleged these claims and consequently has the burden of proving them. The court concluded that (1) even if New York law was applicable, Aetna waived the benefit of § 167(3) of the New York Insurance Law...