Dumas v. Hartford Accident & Indem. Co.

• Decision Date: 05 May 1942
• Citation: 26 A.2d 361
• Parties: DUMAS v. HARTFORD ACCIDENT & INDEMNITY CO.
• Court: New Hampshire Supreme Court

26 A.2d 361

DUMAS

v. HARTFORD ACCIDENT & INDEMNITY CO.

Supreme Court of New Hampshire. Hillsborough.

May 5, 1942.

Transferred from Superior Court, Hillsborough County; Lorimer, Judge.

Action on the case by Maurice H. Dumas against the Hartford Accident and Indemnity Company to recover damages for defendant's negligence in failing to settle a claim against plaintiff for a sum within the limits of an automobile liability insurance policy, certain questions transferred to the Supreme Court before trial.

Case discharged.

Case, for negligence. Prior to and on July 22, 1937, the plaintiff was insured by the defendant under an automobile policy limited in the sum of five thousand dollars for injuries to any one person. On that date, Ann Moran was injured when she was struck by the plaintiff's car on a street in Nashua. She sued the plaintiff for $25,000 and recovered a verdict for $12,000. Upon transfer to this Court, the defendant's exceptions were overruled, after which judgment went for the plaintiff Moran. The defendant herein paid $5,000 with interest and costs, leaving a deficiency of $7,060.70 of which Dumas has paid nothing, though execution has issued and demand has been made on him.

In this action the plaintiff Dumas seeks to recover $7,060.70, interest, costs and expenses on the ground that he has suffered damages in that amount because of the negligence of the insurer in failing to settle within the limits of the policy when that could have been done "if said defendant had exercised due care." In advance of trial, Lorimer, J., transferred the following questions: (1) Whether Dumas can maintain any action at law or equity before he has paid any part of the outstanding judgment; (2) Whether, if he has a right of action, that right is legal or equitable. Further facts appear in the opinion.

Edward J. Lampron, of Nashua, by brief and orally, for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Louis E. Wyman, of Manchester, orally), for defendant.

PAGE, Justice.

The questions transferred will be answered in reversed order.

(1) The defendant claims that the right of action, if one exists, is equitable. It is argued that the defendant's obligation, if it has any, is one of indemnity and that the insured is seeking exoneration. But the defendant did not contract to indemnify the plaintiff with respect to his liability beyond the stipulated sum of $5,000, and it has performed that contract of indemnity in full by the payment of that sum, with interest and costs, and has presumably paid the expenses of the defence of the suit brought by Ann Moran. Moran v. Dumas, 91 N.H. 336, 18 A.2d 763. Its further liability, if any, rests upon a supposed breach of the duty of reasonable care in trying the Moran suit, rather than settling it. The remedy for such a breach is at law, not in equity. The rule of Sanders v. Frankfort Marine, Accident and Plate Glass Ins. Company, 72 N.H. 485, 57 A. 655, 101 Am.St.Rep. 688, does not apply except in cases where indemnity is involved. Duncan v. Lumbermen's Mut. Cas. Company, 91 N.H. 349, 23 A.2d 325.

(2) A right of action for negligence accrues only when the plaintiff has suffered an injury. The possibility of injury is not injury itself. White v. Schnoebelen, 91 N.H. 273, 274, 275, 18 A.2d 185, and cases cited. In the case before us the injury will remain merely possible and conjectural until the plaintiff has paid the excess judgment (Cavanaugh Bros. v. General Accident Fire & Life Assur. Corporation, 79 N.H. 186, 106 A.604) or at least until his financial status is such that the excess...