Guerin v. Indemnity Ins. Co. of North America
| Decision Date | 05 June 1928 |
| Court | Connecticut Supreme Court |
| Parties | GUERIN v. INDEMNITY INS. CO. OF NORTH AMERICA. |
Appeal from Superior Court, New Haven County; Leonard J. Nickerson Judge.
Action by Aime Guerin against the Indemnity Insurance Company of North America, tried to the court. Judgment for plaintiff and defendant appeals. No error.
James W. Carpenter, and Jeremiah H. Bartholomew, Jr., both of Hartford, for appellant.
Clayton L. Klein, Edward F. Sweeney, and Frederick M. Peasley, all of Waterbury, for appellee.
Argued before WHEELER, C.J., and MALTBIE, HAINES, BANKS, and ELLS, JJ.
The plaintiff recovered a judgment against one Le Clerc for personal injuries caused by the latter's negligence in the operation of an automobile. At the time the injuries were received Le Clerc was insured by the defendant against loss from liability imposed by law for such injuries. This action is brought under chapter 331 of the Public Acts of 1919, by which, if the defendant in an action to recover for such injuries is insured against loss from such liability, the judgment creditor is subrogated to the rights of the assured against his insurer.
One of the conditions of the policy written by the defendant was that the insured therein " shall at all times render to the company all co-operation and assistance in his power." The defendant in its special defense alleged a breach by Le Clerc of this condition of the policy, in that he signed and delivered to the defendant's agent a few days after the accident a statement which tended to free him from responsibility for the accident, but upon the trial of the action testified in substance that plaintiff's injuries were caused by his (Le Clerc's) negligence.
Corrections in the finding are sought for the purpose of showing that Le Clerc's signed statement contains the substance of what he stated to defendant's agent. The corrections, if made, would be immaterial, since the signed statement is made a part of the finding and the court found that he gave the statement to the defendant's agent, and that the testimony given by him on the trial conflicted with and was different from the statement. Nor is any correction necessary in the statement of the appellant's claims of law, since those made sufficiently present the only questions in the case which are, (1) Did the defendant's liability under the policy and the statute become fixed as of the time of the accident; (2) if not, did Le Clerc breach the condition of the policy that he would " render to the company all co-operation and assistance in his power" by first making a statement to the defendant's agent and thereafter repudiating it and giving evidence upon the trial which conflicted with it?
Chapter 331 of the Public Acts of 1919 provides that every insurance company which shall issue a policy insuring against loss by reason of liability for bodily injury or death by accident, or damage to property " shall, whenever a loss occurs under said policy, become absolutely liable, and the payment of said loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by said casualty." It further provides that no such policy shall be canceled or annulled by any agreement between the company and the assured after the latter has become responsible for any such loss, and that a judgment creditor in an action against the assured for such loss or damage shall be subrogated to the rights of the assured under the policy, if the judgment is not satisfied within 30 days after it is rendered. The trial court reached the conclusion that the statute fixed the liability of the defendant as of the time of the accident, and that it was not subject to be defeated by any subsequent action of the assured. This construction of the statute involved a misconception of its true purpose and effect. Prior to the enactment of this statute the usual policy of automobile liability insurance contained a provision that the insurer should be liable only in cases where the assured had actually paid a judgment obtained against him, and we held that such a policy was one of indemnity against loss, not against liability, and that payment of the judgment was a condition precedent to recovery (Shea v. U.S. Fid. & Guar. Co., 98 Conn. 447, 120 A. 286, and said (page 453 ):
" The unfairness to the assured of contracts of insurance with conditions such as appear in this policy before us led the General Assembly, in the Public Acts of 1919, chapter 331, to make the insurer liable to the insured whenever liability for a loss occurs without the payment of the final judgment against him by the insured before he can recover on his policy."
In the Shea Case the assured, during the time that the action was pending against him, was adjudged a bankrupt, with the result that the judgment recovered against him was not paid, the insurance company was not liable under its policy, and the judgment was worthless. The present statute was enacted to remedy the...
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