Desrochers v. New York Cas. Co.

• Decision Date: 23 June 1954
• Citation: 99 N.H. 129,106 A.2d 196
• Parties: DESROCHERS et al. v. NEW YORK CAS. CO.
• Court: New Hampshire Supreme Court

Page 196

106 A.2d 196

99 N.H. 129

DESROCHERS et al. v. NEW YORK CAS. CO.

Supreme Court of New Hampshire.

Argued June 1, 1954.

Decided June 23, 1954.

Chretien, Bergevin & Chretien, Gerald O. Bergevin, Manchester, for plaintiffs.

Devine & Millimet and James B. Malley, Manchester, for defendant.

DUNCAN, Justice.

The rights and obligations of the parties depend primarily upon the terms of their agreement as expressed by the policy of insurance. The defendant's agreement was 'to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * * because of injury to or destruction of property, including the loss of use thereof.' The same language is used in the revised property damage provisions of a standard automobile liability policy, with the additional phrase 'caused by accident and arising out of the ownership, maintenance or use of the automobile.' See A.B.A. 'Insurance Policy Annotations,' August 1950 supplement, p. 21.

The defendant concedes its obligation to pay the damages awarded in the equity action but denies that it extends to compliance with the mandatory injunction or to payment of the expense which the insured may incur in complying therewith. The defendant is not a party to the equity action, nor is the injunction directed to it. Its obligation is governed by the contract of insurance. If the plaintiffs should arrange to have others do the work necessary for compliance with the injunction, the cost might be considered 'sums which the insured shall become legally obligated to pay * * * because of injury to * * * property.' But they would not be sums which they were thus obligated to pay 'as damages' within the meaning of the defendant's primary undertaking. See Lumbermen' Mutual Casualty Co. v. McCarthy, 90 N.H. 320, 323, 8 A.2d 750, 126 A.L.R. 894.

The cost of compliance with the mandatory injunction is not reasonably to be regarded as a sum payable 'as damages.' Damages are recompense for injuries sustained. See Woodman v. Town of Nottingham, 49 N.H. 387, 391-392; Restatement, Torts, § 902. They are remedial rather than preventive, and in the usual sense are pecuniary in nature. 1 Sedgwick on Damages (9th ed.) §§ 2, 29. The expense of restoring the plaintiff's property to its former state will not remedy the injury previously done, nor will it be paid to the injured parties. Moreover, any sums which the plaintiffs may become obligated to pay on this account will arise from contract, and so will be a 'liability assumed by the insured under * * * contract or agreement,' which the policy expressly excludes from the coverage.

Had the changes which injured the equity plaintiffs been of a permanent and irrevocable character such as to entitle them to damages measured by depreciation in the value of their properties, the defendant might well be obligated to satisfy such damages. Town of Troy v. Cheshire Railroad Co., 23 N.H. 83, 103-104; City of Harrisonville v. Dickey Clay Mfg. Co., 289 U.S. 334, 340, 53 S.Ct. 602, 77 L.Ed. 1208; see McCormick, Damages for Anticipated Injury to Land, 37 Harv.L.Rev. 574. But this is not such a case. The equity plaintiffs neither sought nor were awarded prospective damages, the extent of which was of doubtful certainty. See Johnson v. Rouchleau-Ray Iron Land Co., 140 Minn. 289, 168 N.W. 1, 3 A.L.R. 679 and annotation following. The damages awarded, which the defendant is prepared to pay, were for injuries caused by a single prior flooding. The injunctive relief was to prevent recurrence of such injuries. For contingent and prospective damages the plaintiffs have incurred no liability. They are obligated to pay only for 'the damage that has happened.' Town of Troy v. Cheshire Railroad Co., supra, 23 N.H. 102; Skipwith v. Albemarle Soapstone Company, 4 Cir., 185 F. 15, 20; McCormick, supra, p. 581. Cf. White v. Schnoebelen, 91 N.H. 273, 276, 18 A.2d 185; Restatement, Torts, § 930, Comment on Subsection (1).

In ruling that the 'defendant is obligated to pay the reasonable costs of compliance with the mandatory injunction' the Trial Court made certain preliminary findings and rulings as follows: 'It is the opinion of the Court that the affirmative relief was ordered either because damages would have been inadequate, or to avoid multiplicity of suits, or perhaps both. If ordered because damages were inadequate then the affirmative relief would be in lieu of future damages, and the reasonable expense of complying with the affirmative relief ordered should be borne by the insurance company, which would have been required to meet any monetary damages for which the affirmative relief was a substitute. If the affirmative relief was granted to avoid a mulitiplicity of suits, then these suits would simply be to recover future damages for which the company would be liable in spite of any subsequent cancellation of the policy, since any future damages would result...