Camire v. Commercial Ins. Co.

• Decision Date: 16 March 1964
• Citation: 160 Me. 112,198 A.2d 168
• Parties: Roland J. CAMIRE v. COMMERCIAL INSURANCE CO.
• Court: Maine Supreme Court

Page 168

198 A.2d 168

160 Me. 112

Roland J. CAMIRE v. COMMERCIAL INSURANCE CO.

Supreme Judicial Court of Maine.

March 16, 1964.

Grover G. Alexander, Gray, for plaintiff.

Frederick G. Taintor, Lewiston, for defendant.

Before WILLIAMSON, C. J., and TAPLEY, SULLIVAN, SIDDALL and MARDEN, JJ.

SULLIVAN, Justice.

The plaintiff appeals from the decision and order for judgment of a Justice in a trial without jury.

Plaintiff had recovered a final judgment against Jerome A. Dostie for bodily injuries negligently inflicted upon the former by the latter. That judgment remained partially unsatisfied and plaintiff commenced this action against the defendant, insurer of Dostie when those injuries had been perpetrated, to have the insurance money applied to the satisfaction of the judgment against Dostie. R.S. c. 60, § 302 and § 303 as amended.

Plaintiff in his suit against Jerome A. Dostie had asserted and a jury had found that plaintiff had been a passenger in an automobile operated upon the public highway by Francis Dostie, brother of Jerome, and that plaintiff had been injured as a consequence of the car in which he was riding having been forced off the highway and upset as a proximate result of the negligent operation of another motor vehicle simultaneously driven on the same public way by Jerome A. Dostie, defendant's assured.

Subsequent to the road mishap the insured, Jerome A. Dostie signed a report to this defendant, his insurer, informing defendant that when the car in which the plaintiff was riding left the highway and became wrecked the automobile controlled by Jerome A. Dostie was away from the public highway, was at rest in the yard of a garage and was 'nowheres near road.' Until subjected to cross examination at the tort trial Jerome Dostie by reiteration remained constant in his stated representation to the Defendant. In the presence of the jury throughout direct and redirect questioning Jerome Dostie staunchly asserted that his car had not been a factor in the accident but had remained stationary and sequestered from the public way.

Plaintiff was injured on April 9, 1960. On February 12, 1961 Jerome Dostie advised his insurer, this defendant, as follows:

'On April 9, 1960, my brother and I had been having trouble with our cars. My car is my own, but my brother's is owned by my father, Albert J. Dostie. We were taking the cars to Maine Hydraulic Jack Company, on Route 4, Auburn. He was supposed to meet me there. I arrived first and pulled into the Company's driveway. My uncle, Larry Foisy, manager of the company, directed me to move my car, which I did.

'I was sitting in my car talking to my uncle who was standing in the driveway. Suddenly, we saw the car driven by my brother run off the left side of the road and turn over. My uncle and I ran over across the street to see if anyone was hurt * * *.'

At the jury trial in the action of this plaintiff versus Jerome Dostie, in September, 1961, Jerome Dostie testifying in his own behalf under direct examination and again to redirect questioning confirmed the narration quoted above. But upon cross examination Jerome Dostie answered in significant part as follows:

(Conversation of Jerome Dostie with this plaintiff at the scene of and a few minutes after the accident)

'Q. Did you make any comment to Roland (plaintiff) about, 'Roland, please don't tell them I backed out into the road?'

'A. Not that I can remember.

'Q. Not that you can remember.

'A. No.

'Q. But you might have said it.

'A. I might have.'

(During visit of Jerome Dostie with plaintiff at hospital)

'Q. Did you hear Mrs. Camire's (wife of plaintiff) testimony? I assume when you visited, that in her presence at the hospital, you did ask Roland (plaintiff) not to tell the officer (State Police Officer) that you had backed the car out into the driveway?

'A. Yes.

'Q. All right. Did (sic) you again--did (sic) you acknowledge making that remark right now?

'A. Yes.

'Q. All right. Now, Jerome, have you at any time, and your answer is very important, have you at any time ever told the story to anyone else apart from Roland and Mrs. Camire, that the accident happened because you backed into the highway and Francis was coming too fast?

'A. No, I have not.

'Q. You have not. And you want to leave it with this Court and jury, and them (sic) and women, you have never told anyone that story.

'A. Not to my knowledge.

'Q. What do you mean, not to your knowledge? Have you or have you not?

'A. Not that I can remember.

'Q. Well, do you think you might have told it and forgotten it?

'A. No.'

At the jury trial against Jerome Dostie the plaintiff maintained and presented evidence to prove that Jerome Dostie on April 9, 1960 had backed his car out of the garage driveway and onto the public highway and had thereby forced the automobile operated by his brother Francis off the highway to the injury of the plaintiff. Prior to that trial this defendant had known of such contentions of the plaintiff as to Jerome's negligent actions. Plaintiff's explanation of the causes and effects constituting the casualty was elicited in brief at the pretrial conference and indicated in the pretrial order.

The casualty policy issued by the defendant and insuring Jerome Dostie contains these stated conditions:

'The insured shall co-operate with the Company and upon the Company's request, attend hearings and trials and assist in making settlement, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance * * *.'

'No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy.'

'In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the Company or any of its authorized agents as soon as practicable * * *.'

During the jury trial Francis Dostie, brother of Jerome, testified that Jerome's car was not upon the highway at the time of the accident and did not contribute to the mishap. Jerome told defense counsel supplied to him by the defendant here that his, Jerome's insistence upon his non-participation in the accident was correct and could in no way be shaken. He denied the objective truth of plaintiff's testimony that his, Jerome's car was upon the highway or was a cause of the unfortunate and injurious incident. Jerome continuously spoke assurance that he had never discussed the casualty with the plaintiff.

Defendant in the case at bar urges inter alia the defense of fraud practiced against it by its assured, Jerome Dostie, before and during the jury trial.

After the cross examination of Jerome Dostie hereinbefore quoted defense counsel furnished to him by this defendant for the jury trial continued his professional participation in that cause to the moment of the returned verdict and thereafter through the post trial procedure of pursuing to a ruling both a motion for a judgment N.O.V. and a motion for a new trial. Defense counsel was successful in achieving a remittitur of $4000 from the verdict on October 19, 1961. On October 23, 1961 defense counsel withdrew from the case and advised plaintiff's counsel that the defendant repudiated all obligation to indemnify Jerome Dostie against plaintiff's awarded judgment.

Plaintiff here contends that defendant has demonstrated no vitiating fraud, no lack of cooperation upon the part of Jerome Dostie with his insurer and that even were the facts not so the persistence of defense counsel without reservation in functioning at the jury trial subsequent to the cross examination of Jerome Dostie and even unto an exhaustion of post verdict motions is imputable to this defendant as a waiver by it of its right to disavow liability to indemnify Jerome Dostie.

The case at bar was instituted under the provisions of R.S. c. 60, § 302 and § 303 amended.

§ 302. 'The liability of every company which insures any person * * * against accidental loss or damage on account of personal injury or death or on account of accidental damage to property shall become absolute whenever such loss or damage, for which the insured is responsible, occurs; and the rendition of a final judgment against the insured for such loss or damage shall not be a condition precedent to the right or obligation of the insuring company to make payment on account of such loss or damage.'

§ 303 amended. 'Whenever any person, * * * recovers a final judgment against any other person, * * * for any loss or damage specified in section 302, the judgment creditor shall be entitled to have the insurance money applied to the satisfaction of the judgment by bringing a civil action, in his own name, against the insuring company to reach and apply said insurance money, provided when the right of action accrued, the judgment debtor was insured against said liability and that before the recovery of said judgment the insuring company had had notice of such accident, injury or damage. The insuring company shall have the right to invoke the defenses described in this section in said proceedings. None of the provisions of this paragraph and section 302 shall apply:

'I. * * * When the automobile, motor vehicle or truck is being operated by any person contrary to law as to age or by any person under the age of 16 years where no statute restricts the age; or

'II. * * * When such automobile, motor vehicle or truck is being used in any race or speed contest; or

'III. * * * When such automobile, motor vehicle or truck is being used for towing or propelling a trailer unless such privilege is indorsed on the policy or such trailer is also insured by the company; or

'IV. * * * In the...