Hein v. Nationwide Mut. Ins. Co.

• Decision Date: 05 October 1965
• Citation: 213 A.2d 197,106 N.H. 378
• Parties: Mildred G. HEIN, Ex'x v. NATIONWIDE MUTUAL INSURANCE COMPANY et al.
• Court: New Hampshire Supreme Court

Page 197

213 A.2d 197

106 N.H. 378

Mildred G. HEIN, Ex'x v. NATIONWIDE MUTUAL INSURANCE COMPANY et al.

Supreme Court of New Hampshire.

Argued April 7, 1965.

Decided July 21, 1965.

Rehearing Denied Oct. 5, 1965.

Faulkner, Plaut, Hanna & Zimmerman, N. Michael Plaut, Keene, and Beach & Calder, Bristol, Conn., for plaintiff.

Sulloway, Hollis, Godfrey & Soden, Lawrence E. Spellman and Arthur W. Mudge, II, Concord, for defendant.

Devine, Millimet, McDonough, Stahl & Branch, Manchester, for Royal Indemnity Co.

BLANDIN, Justice.

The principal issue of law transferred is whether the defendant, Nationwide Mutual Insurance Company, must extend uninsured motorists' coverage to the plaintiff executrix. The case is one of first impression here and counsel have informed the court that they are unable to cite any authority squarely in point.

The insurance policy involved was issued and delivered to August Hein in Connecticut, where he resided. Under Item 6 of the policy, headed 'FINANCIAL RESPONSIBILITY,' appears the following: 'The liability insurance afforded by this policy under Coverages C(1) and C(2) shall comply with the provisions of any applicable motor vehicle financial responsibility law to the extent of the coverage required by such law, but not in excess of the policy limits of liability.' C(1) and C(2) are listed under the broad heading 'Coverages' and a subheading 'C' entitled 'Property Damage & Bodily Injury-Liability.' They contain the customary undertaking by the defendant insurer 'To pay all sums which those entitled to protection become legally obligated to pay as damages arising out of the ownership etc. * * *' of the insured automobile.

August Hein was killed when his car, which he was operating, was in collision with an automobile driven by Ronald Caldwell, insured by the Royal Indemnity Company. Caldwell has defaulted and his company has agreed to pay $5,000 to Mrs. Hein, which is the full amount of its coverage. However, this is $5,000 less than the $10,000 minimum required by the New Hampshire Financial Responsibility Law (RSA 268:1 VII (supp)).

The plaintiff concedes that ordinarily the relevant Connecticut statutes would govern the financial responsibility of the defendant. Gen.Stats. Conn., 1958 Rev., Vol. III, Title 14-S 14:112. She also recognizes that the Connecticut Financial Responsibility Act does not require uninsured motorists' coverage and that such was not mentioned in the policy. However, she insists that the policy, 'by its express terms,' has incorporated by reference the New Hampshire uninsured motorists' provision. RSA 268:15 (supp). She says that Caldwell was an uninsured motorist to the extent of the $5,000, this being the difference between what the Royal Indemnity Company must pay and the $10,000 minimum under the New Hampshire act and that she is therefore entitled to collect this from Nationwide.

Section 15 (supp), supra, upon which she relies, was first enacted by Laws 1957, 305:8. It requires that all motor vehicle liability insurance policies 'issued or delivered in this state with respect to a motor vehicle * * * registered in this state' shall provide coverage 'for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * * and hit-and-run motor vehicles * * * because of bodily injury * * * including death resulting therefrom.'

It remains to be determined whether the plaintiff's argument will stand analysis. Section 15 (supp), supra, specifically limits its application to policies 'issued or delivered in this state' with respect to motor vehicles 'registered in this state.' Hein's policy was neither delivered nor issued here, nor was his automobile registered here. The clause in the policy upon which the plaintiff relies, Item 6, refers specifically to 'liability insurance * * * under Coverages C(1) and C(2).' They deal only with liability insurance. As pointed out in Kirouac v. Healey, 104 N.H. 157, 160, 181 A.2d 634, uninsured motorists' insurance is not liability insurance in any sense, but resembles limited accident insurance. It does not undertake to protect the insured against liability he may incur to others, as does liability insurance, but rather insures him against losses occasioned to him by a limited group of tort feasors. Kirouac v. Healey, supra, 160, 181 A.2d. We believe that a fair reading of the policy by the insured should have made it obvious to him that Item 6 incorporated the liability provisions of our financial Responsibility Act but not those of our Uninsured Motorists' Law.

It is true that the innovation brought about by RSA 268:15 (supp) was 'designed to close a gap in the protection afforded the public under existing Financial Responsibility Acts.' Kirouac v. Healey, supra, 159, 181 A.2d 636. It has properly received a liberal interpretation from our courts to the end that its purpose may be accomplished. Kirouac v. Healey, supra; Hartford Accident & Indemnity Co. v. Wolbarst, 95 N.H. 40, 57 A.2d 151; Merchants Mutual Cas. Co. v. Tuttle, 98 N.H. 349, 101 a.2d 262. Nevertheless, this does not require that we expand its meaning to cover situations to which it cannot fairly be said to be applicable. See Gerard v. Massachusetts Bonding & Insurance Co., 106 N.H. 1, 203 A.2d 279. Since it would not appear applicable to the situation here, we hold that RSA 268:15 (supp) does not apply to the Nationwide policy.

The plaintiff further urges that certain statements in the policy should be interpreted as representations that uninsured motorists' insurance was included therein. It is true that the policy did say that it contained 'the latest advancements in automobile insurance protection. With it you will enjoy insurance coverage as modern as the newest car on the road.' It further suggested that if a company should issue endorsements reflecting broadened coverage without extra premium, the insured should have the benefits of them. From this, the plaintiff argues that Hein should reasonably have understood that he did possess uninsured motorists' coverage.

This type of insurance was first written in 1925 (7 N.H.B.J. 92) and has been the subject of considerable discussion since. 1964 Insurance Council Journal, pp. 665,...