Curran v. Connecticut Indem. Co. of New Haven

• Court: Connecticut Supreme Court
• Writing for the Court: MALTBIE, Chief Justice.
• Citation: Curran v. Connecticut Indem. Co. of New Haven, 20 A.2d 87, 127 Conn. 692 (Conn. 1941)
• Decision Date: 08 May 1941
• Parties: CURRAN v. CONNECTICUT INDEMNITY CO. OF NEW HAVEN.

20 A.2d 87

127 Conn. 692

CURRAN v. CONNECTICUT INDEMNITY CO. OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

May 8, 1941

Appeal from Superior Court, New London County; Edward J. Quinlan Judge.

Action by James P. Curran against the Connecticut Indemnity Company of New Haven, to recover the amount of a judgment against the defendant's assured, brought to the Superior Court and tried to the jury. From a judgment on a verdict for the defendant, plaintiff appeals.

No error.

In action by judgment creditor to recover under an automobile liability policy, where additional insured could not claim an estoppel or waiver of co-operation provision of the policy additional insured's failure to co-operate with the insurer was a good defense.

George C. Morgan, of New London, and William J Willetts, of Hartford (Griswold Morgan, of New London, on the brief), for appellant.

Joseph F. Berry, of Hartford, for appellee.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

MALTBIE, Chief Justice.

The plaintiff recovered a judgment against Frank Carey for serious injuries received as a result of Carey's negligence in the operation of an automobile in which the plaintiff was riding as a passenger and which came into collision with another car. Operation of the car by Carey was within the coverage of an insurance policy issued by the defendant, and he was an additional assured within its terms. The plaintiff accordingly brought this action to recover from the defendant the amount of the judgment secured against Carey. The defendant, in answer, pleaded that Carey had failed to comply with the provisions in the policy requiring an assured to co-operate in the defense of any action brought against him within the coverage of the policy. Subsequent pleadings raised the issue of the defendant's right in this action to take advantage of Carey's failure in this regard. The jury rendered a verdict for the defendant and the plaintiff has appealed from the denial of a motion to set the verdict aside and from the judgment, in the latter claiming error in the charge to the jury.

The defendant in the policy agreed to pay any loss from liability imposed by law upon the assured for bodily injuries or death, and, further, to defend in the name and on behalf of the assured any suit alleging such bodily injuries or death. The policy stated, however, that the agreement was subject to certain conditions, among them being these: That the assured would give to the defendant immediate written notice of any claim or suit arising or resulting from an accident, with every summons or other process served therein, that he must co-operate fully with the company in disclosing all the facts known to him about the happening of the accident, the making of every claim and the filing of every suit, and that he must also render his aid in securing evidence and the attendance of witnesses at a trial or hearing.

As there is little dispute as to the material facts except in one instance, of which we shall speak, and the same issues are involved in both the appeal from the denial of the motion to set the verdict aside and the appeal from the judgment, we shall discuss them together. The accident occurred on August 18, 1935. Soon thereafter notice of it was given to the defendant, and Harry Erdmann, representing it, made an investigation and took statements from various persons present when it occurred, including Carey. Carey was at the time an inmate of a federal transients' camp. On July 23, 1936, Erdmann, in order to check up on him, visited the camp, which was to close within a very short time. Carey then told him that no action had been brought against him. Erdmann gave Carey his card with his name and address on it, and told him to write him where he could be found and to send him any papers in any action which he received. At about this time the plaintiff brought the action in which the judgment now in suit was rendered, naming as defendants Carey, the driver of the other car in the collision, and the named assured. The writ was served on Carey the same day Erdmann talked with him. Carey did not send it to the defendant, nor did he thereafter communicate with it, and although Erdmann subsequently made diligent search for him he could not be found. Copies of the writ and complaint were sent to the defendant by the named assured but there is no evidence that the defendant knew that the action had been served on Carey, and nothing from which we can so conclude, at least up to the time of the trial. Attorneys representing the defendant entered an appearance for its named assured, but not for him. He was not present at the trial. Ultimately judgment was entered for all the defendants except Carey, and a default judgment was rendered against him with a later assessment of damages to the amount of $7,500.

In the absence of estoppel, waiver or other excuse, co-operation by the insured in accordance with the provision of the policy is a condition the breach of which puts an end to the insurer's obligation. Guerin v. Indemnity Ins. Co., 107 Conn. 649, 654, 142 A. 268; Metropolitan Casualty Ins. Co. v. Colthurst, 9 Cir., 36 F.2d 559, 561; Coleman v. New Amsterdam Casualty Co., 247 N.Y. 271, 276, 160 N.E. 367, 72 A.L.R. 1443; United States Fidelity & Guaranty Co. v. Wyer, 10 Cir., 60 F.2d 856, 858; Bruggeman v. Maryland Casualty Co., 3 Cir., 73 F.2d 587, 588; Marley v. Bankers' Indemnity Ins. Co., 53 R.I. 289, 292, 166 A. 350. It is true that the condition of co-operation with an insurer is not broken by a failure of the assured in an immaterial or unsubstantial matter. Rochon v. Preferred Accident Ins. Co., 118 Conn. 190, 198, 171 A. 429; 72 A.L.R. 1455; 98 A.L.R. 1469. In determining whether a condition to co-operate has been broken, we are dealing with contract rights, and if there has been a breach, prejudice need not appear. Coleman v. New Amsterdam Casualty Co., supra. The reason why immaterial and unsubstantial failures of an assured do not constitute a breach is because they are not included within the fair intendment of the requirement that the assured co-operate, and lack of prejudice to the insurer from such failure is a test which usually determines that a failure is of that nature. Conduct on the part of an assured which makes it impossible for the insurer to get in touch with him in the face of an impending trial, although diligent search is made for him, could rarely, if ever, be regarded as an unsubstantial or immaterial failure to co-operate. Goldberg v. Preferred Accident Ins. Co., 279 Mass. 393, 397, 181 N.E. 235; Fagan v. Hartford Accident & Indemnity Co., 114 N.J.L. 281, 285, 176 A. 388; Metropolitan Casualty Ins. Co. v. Blue, 219 Ala. 37, 42, 121 So. 25; Bauman v. Western & Southern Indemnity Co., 230 Mo.App. 835, 846, 77 S.W.2d 496.

In this case it appears that in defense of the original action an answer was filed during the...