Fireman's Fund Am. Ins. Companies v. Webber

• Decision Date: 29 December 1972
• Docket Number: No. 6335,6335
• Parties: FIREMAN'S FUND AMERICAN INSURANCE COMPANIES v. Everett H. WEBBER, Jr., et al.
• Court: New Hampshire Supreme Court

Page 745

298 A.2d 745

112 N.H. 466

FIREMAN'S FUND AMERICAN INSURANCE COMPANIES v. Everett H. WEBBER, Jr., et al.

No. 6335.

Supreme Court of New Hampshire.

Dec. 29, 1972.

Wiggin, Nourie, Sundeen, Pingree & Bigg, Manchester (William S. Orcutt, Manchester, orally), for Fireman's Fund American Ins. Cos.

David R. Decker, Laconia, for Everett H. Webber, Jr., and Jean K. Webber, filed no brief.

Upton, Sanders & Upton, Concord (John H. Sanders, Concord, orally), for Daniel E. Vincent.

Nighswander, Lord, Martin & KillKelley, Laconia (Willard G. Martin, Jr., Laconia, orally), for Travelers Ins. Co.

GRIFFITH, Justice.

This is a petition for declaratory judgment filed on March 23, 1970, whereby Fireman's Fund American Insurance Companies seek to have Travelers Insurance Company provide primary coverage for Everett H. Webber, Jr., and Jean K. Webber with regard to an action at law brought against them by Daniel E. Vincent. The writ in the action at law was filed in the Grafton County Superior Court on November 5, 1968. The petitionees filed answers to this petition in April and May 1970, and a hearing on the declaratory judgment was held on January 12, 1971. At the hearing Travelers orally moved to dismiss the petition for failure to comply with the 1967 amendment to RSA 491:22 which provides as follows: 'No petition shall be maintained under this section to determine coverage of an insurance policy unless it is filed within six months after the filing of the writ which gives rise to the question; provided, however, that the foregoing prohibition shall not apply where the facts giving rise to such coverage dispute are not known to, or reasonably discoverable by, the insurer until after expiration of such six month period, and provided, further, that the superior court may permit the filing of such a petition after such period upon a finding that the failure to file such petition was the result of accident, mistake or misfortune and not due to neglect.'

The Superior Court, Johnson, J., ruled 'that under these factual conditions the six-months limitation is not a bar to this present action', and saved Travelers' exception to this ruling. After a decree on the coverage questions was rendered to which all parties excepted, this reserved case was brought here.

The statute which creates the declaratory judgment remedy also restricts its availability. The evidence legislative purpose must govern is construction. Portsmouth Hospital v. Indemnity Ins. Co., 109 N.H. 53, 55, 242 A.2d 398, 400 (1968). The legislature found that protracted and inexcusable delay in filing a pretrial petition for declaratory judgment regarding insurance coverage unfairly impedes the progress of the underlying suit. 1967 N.H.S.Jour. 837.

The trial court's ruling apparently was made upon the assumption that a declaratory judgment petition by an insurer claiming another insurer was liable for primary coverage as distinguished from a claim of no coverage was not governed by the limitation in the declaratory...