Imperiali v. Pica

• Decision Date: 04 February 1959
• Citation: 156 N.E.2d 44,338 Mass. 494
• Parties: Romolo IMPERIALI v. Gaeton PICA and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 44

156 N.E.2d 44

338 Mass. 494

Romolo IMPERIALI v. Gaeton PICA and another.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 9, 1958.

Decided Feb. 4, 1959.

Morris Michelson, Boston, Laurence A. Ruttman, Brookline, for plaintiff.

Philander S. Ratzkoff, Boston, for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

SPALDING, Justice.

Having recovered a judgment against the defendant Pica (hereinafter called the insured), the plaintiff brought this bill in equity to reach and apply the obligation of the defendant insurance company (hereinafter called the company) under the noncompulsory provisions of a motor vehicle policy issued by it to the insured. See G.L. c. 175, § 113; c. 214, § 3(10). The judge made findings of material facts and ordered the bill dismissed. ¹ From a decree entered in accordance with this order, the plaintiff appealed. The case comes here on an agreed record. Rule 4 of the Rules for the Regulation of Practice before the Full Court, 1952, 328 Mass. 695.

Findings of the judge include the following: On July 2, 1951, the plaintiff brought an action of tort against the insured, alleging that on the night of August 5, 1950, he was struck and injured by an automobile owned and operated by the insured. On July 25, 1951, an appearnace for the insured was entered in the case by a firm of attorneys representing the company. On April 24, 1952, the plaintiff's attorney sent to the attorneys for the company a notice of a demand to admit facts (under G.L. c. 231, § 69) in the tort action against the insured. This notice was received by the company's attorneys on the same day. On that day (April 24) an attorney of the firm representing the company dictated and signed a letter to the insured which stated that his office, under the insured's policy, was representing him in the tort case; that notice of a demand from the plaintiff to admit facts had been received that day; that the demand required the insured to admit or deny certain facts; and that it was necessary for the insured 'to come to this office' so that 'the facts can be reviewed' and the answers prepared for his signature. The letter concluded with the following: 'Accordingly will you contact me by telephone, and in the event that I am not in the office, contact my secretary who will be glad to arrange an appointment at a time which suits your convenience. The matter must be attended to within ten days of this date so that your prompt coperation is required.'

This letter was never mailed to the insured. Six days later, on April 30, 1952, an employee of the company delivered the letter in person to the insured at his residence in East Weymouth. Before delivery he read the letter to the insured, who replied that he would get 'in touch right away.' The insured did not go to the office of the company's attorney or get in touch with any one there before or after ten days from the date of the letter. No reply to the demand to admit facts was ever filed, the facts set forth in the demand were 'deemed admitted' under G.L. c. 231, § 69, and the case was tried on that footing. On May 27, 1952, the company's attorneys withdrew their appearance in the case.

It is agreed that the company's attorneys did not communicate with the insured between April 30 (the date of delivery of the letter) and May 27 when they withdrew from the case; nor did they prepare any answers to the demand to admit facts and neither sought nor obtained any extension of time for answering it.

The only relevant provision of the policy here involved is the following: 'The insured shall coperate with the company and upon the company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits.'

During the trial, the plaintiff offered certain interrogatories propounded to the company and the answers thereto, which were excluded. In substance the answers to these interrogatories state that the insured submitted a written report of his accident dated August 7, 1950, which was received by the company on August 8, 1950; that he also gave a signed statement of the accident to the company on August 16, 1950; and that he notified the company when the writ was served on him. The insured's signed statement and his written report of the accident were also offered and excluded. The plaintiff's attorney called the insured as a witness and asked him in turn as to each of the facts set forth in the demand to admit facts whether such fact was true. This procedure was repeated when the plaintiff was called as a witness. The judge excluded each such question. The plaintiff duly saved exceptions to these rulings, and made appropriate offers of proof. These offers were to the effect that the excluded evidence would show substantial compliance by the insured with the coperation clause and that the facts actually existing touching the accident would be the same as those set forth in the demand.

The judge found that the insured, by failing to get in touch with the company's attorneys 'after timely notice in hand,' did not coperate 'in a vital and immediate matter' pertaining to the defence of the tort case.

The issues on this appeal are two: (1) Whether the insured's conduct amounted to a material breach of the co()peration clause. (2) Whether there was prejudicial error in the exclusion of any of the proffered testimony.

1. Where the obligation which a plaintiff seeks to reach arises out of noncompulsory insurance--and that is the case here ²--any defence available to the insurer against the insured is also available against the plaintiff, for the plaintiff stands in the shoes of the insured. Blair v. Travelers Ins. Co., 291 Mass. 432, 436, 197 N.E. 60, and cases cited. Salonen v. Paanenen, 320 Mass. 568, 575, 71 N.E.2d 227. That an insurer may terminated its liability under a policy if the insured commits a material breach of the coperation clause contained in it is well settled. Goldberg v. Preferred Acc. Ins. Co., 279 Mass. 393, 181 N.E. 235; Goldstein v. Bernstein, 315 Mass. 329, 52 N.E.2d 559; Williams v. Travelers Ins. Co. 330 Mass. 476, 115 N.E.2d 378; Polito v. Galluzzo, Mass., 149 N.E.2d 375. And the insurer need not show that it was prejudiced by the breach. Polito v. Galluzzo, supra.

But the 'problem of non-cooperation has a dual aspect: not only what the assured failed to do, but what the insurer on its part did not secure co-operation from an apathetic, inattentive, or vanished policy holder, must be considered.' Pennsylvania Threshermen & Farmer's Mut. Cas. Ins. Co. v. Owens, 4 Cir., 238 F.2d 549, 550. Although we have frequently dealt with coperation clauses, we have not heretofore considered the subject with respect to the insurer's duties under them. This question, however, has received the attention of courts elsewhere. It has been held, in accordance with the language quoted above, that an insurer cannot be relieved of liability because of an alleged breach of a coperation clause by the insured in a situation where it has not itself exercised diligence and good faith. Royal Indem. Co. v. Rexford, 5 Cir., 197 F.2d 83; Commercial Cas. Ins. Co. v. Strode, 6 Cir., 202 F.2d 599; Duffy v. Fort Dearborn Cas. Underwriters, 270 Ill.App. 143, 149; Indemnity Ins. Co. v. Smith, 197 Md. 160, 165, 78 A.2d 461; Finkle v. Western Auto. Ins. Co., 224 Mo.App. 285, 297, 26 N.W.2d 843; Heimbecher v. Johnson, 258 Wis. 200, 205, 45 N.W.2d 610; Modl v. National Farmers...