Duncan v. Lumbermen's Mut. Cas. Co.
| Decision Date | 01 April 1941 |
| Parties | DUNCAN v. LUMBERMEN'S MUT. CASUALTY CO. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Rockingham County; Burque, Judge.
Action on the case in the name of Eugene D. Duncan by Mary K. Yeroyan, as plaintiff in interest, against the Lumbermen's Mutual Casualty Company to recover a balance due on a judgment for plaintiff in interest against Duncan on ground of defendant's negligence in rejecting plaintiff's offer to settle her suit against Duncan for amount within limits of an automobile liability insurance policy issued by defendant to Duncan. Question whether suit can be maintained transferred to the Supreme Court without ruling.
Case discharged.
Case, for negligently failing to settle a claim of Mary K. Yeroyan against Eugene D. Duncan within the limits of a motor vehicle liability policy issued by the defendant to Eugene D. Duncan.
In 1934 Mary K. Yeroyan instituted suit against Eugene D. Duncan, who was insured by the defendant company, to recover for injuries resulting from an automobile accident. Before the trial of the case, the defense of which was conducted by the casualty company, Mary K. Yeroyan offered to settle within the limits of the policy. The casualty company rejected the offer. There was a verdict in favor of Mary K. Yeroyan for $7,500, and the casualty company satisfied the judgment to the extent of $5,000, which was the policy limit. See Lumbermen's Mutual Casualty Co. v. Yeroyan, 90 N.H. 145, 5 A.2d 726.
In the present action Mary K. Yerdyan seeks to recover from the casualty company the balance due on her judgment against Duncan on the ground that the company was negligent in rejecting her offer of settlement. A like suit is pending on behalf of Duncan. No payment has been made by Duncan on the judgment against him, and on July 1, 1938, a suit on that judgment brought by Mary K. Yeroyan against Duncan was marked "Voluntary Nonsuit".
The question "whether under these circumstances the present suit can be maintained" was transferred by Burque, C. J., without a ruling.
William H. Sleeper, of Exeter, for plaintiff.
Devine & Tobin, of Manchester, for defendant.
Mary K. Yeroyan brings the present action in the name of Eugene D. Duncan, designating herself therein as plaintiff in interest. Apparently, this is without specific authorization, since an action brought by Duncan himself against the defendant company for the same cause is now pending.
While a liability insurance company may be liable to its insured for negligence in failing to adjust a claim covered by its policy of insurance (Douglas v. United States Fidelity and Guaranty Company, 81 N.H. 371, 127 A. 708, 37 A.L.R. 1477; Cavanaugh Bros. v. General, etc., Assur. Corporation, 79 N.H. 186, 106 A. 604), it does not follow that the claimant may complain of the negligence in question, for the duty of the insurer to exercise care in the handling of a claim against the insured arises from the relationship created by the policy. Douglas v. United States Fidelity and Guaranty Company, supra, 81 N.H. 376, 127 A. 708, 37 A.L.R. 1477. The rule of Sanders v. Frankfort, etc., Insurance Co., 72 N.H. 485, 57 A. 655, 101 Am.St.Rep. 688, cannot be expanded to cover the present situation, since the policy here involved contains no provision for indemnity beyond the requirement that the...
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