Hartford Ins. Co. v. Bird

• Decision Date: 16 April 1984
• Docket Number: No. 83-252,83-252
• Citation: 124 N.H. 784,480 A.2d 4
• Parties: HARTFORD INSURANCE COMPANY v. Neil BIRD et al.
• Court: New Hampshire Supreme Court

Page 4

480 A.2d 4

124 N.H. 784

HARTFORD INSURANCE COMPANY v. Neil BIRD et al.

No. 83-252.

Supreme Court of New Hampshire.

April 16, 1984.

Kenneth G. Bouchard, Manchester, by brief and orally, for plaintiff.

Keefe & Keefe, Wilton (John Miles Keefe, Wilton, on the brief and orally), for intervenor Marguerite A. Howard, Administratrix of the Estate of Sandra K. Rassier.

BATCHELDER, Justice.

A wrongful death action was brought on March 31, 1981, by the administratrix of the estate of Sandra K. Rassier, who was the victim of a shooting perpetrated by Neil Bird on property owned by his parents. Hartford Insurance Company, insurer of Neil's parents, Leo and Marilyn Bird, brought a petition for declaratory judgment on November 10, 1981, seeking a declaration that Neil was not entitled to coverage under the parents' homeowner's insurance policy.

The administratrix was permitted to intervene in the declaratory judgment action. She moved to dismiss the petition on the ground that the petition was not timely filed. The Superior Court (Contas, J.) denied the administratrix's motion and granted the plaintiff's motion for summary judgment. The administratrix appeals from these rulings.

The administratrix argues, inter alia, that the plaintiff brought its petition outside the six-month limitation set out in RSA 491:22 and that the petition, therefore, should have been dismissed. RSA 491:22 reads in pertinent part:

"No petition [for declaratory judgment] shall be maintained under this section to determine coverage of an insurance policy unless it is filed within 6 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 6 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."

(Emphasis added.)

The superior court made no finding of accident, mistake or misfortune in denying the administratrix's motion to dismiss the petition. The plaintiff maintains that its petition was timely filed because it was brought within six months of the date of its having first learned of the "accident in question."

We disagree. RSA 491:22 does not set forth a discovery rule such that the six-month period begins to run from the date of the discovery of the facts giving rise to...