Interstate Fire & Cas. Co. v. Lee Raceway, Inc.
| Decision Date | 31 October 1973 |
| Docket Number | No. 6709,6709 |
| Citation | 113 N.H. 593,311 A.2d 307 |
| Parties | INTERSTATE FIRE & CASUALTY COMPANY v. LEE RACEWAY, INC., Joseph J. Suidut, Individually and Father and Next Friend of Joseph A. Suidut. |
| Court | New Hampshire Supreme Court |
Boynton, Waldron, Dill & Aeschliman, Portsmouth, for plaintiff.
Michael & Wallace and John G. Richardson, Rochester, for defendant Lee Raceway, Inc.
The primary issue in this case is whether the plaintiff insurance company is required to furnish insurance coverage to the defendant Lee Raceway, Inc., under an auto racing liability policy and a promotors liability coverage endorsement. On July 1, 1967, Joseph A. Suidut, an 11-year-old boy, was allegedly injured in the pit area at Lee Raceway when a racing car collided with the wall separating the pit area from the track during the racing program. Joseph J. Suidut, individually and father and next friend, brought an action against Lee Raceway, Inc., in the Strafford County Superior Court to recover damages for injuries to the child allegedly received from the accident. A petition for declaratory judgment was filed by the plaintiff insurance company against Lee Raceway, Inc., and Joseph J. Suidut, requesting the superior court to declare that the plaintiff was not required to provide coverage or defense for any claim of injury to Joseph A. Suidut arising from the accident. The case was submitted on an agreed statement of facts, and the Trial Court (Morris, J.) reserved and transferred to this court without ruling the question of law relating to the insurance coverage.
It appears from the agreed statement of facts that at the time of the accident the defendant Lee Raceway, Inc., was covered by an auto racing liability insurance policy which provided that the plaintiff would pay on behalf of the insured all sums which it became legally obligated to pay as damages because of injuries to persons or property from the use of the race track for automobile racing events. It specifically excluded, however, liability to 'all persons whatsoever in the area known as the pit area before the racing program is completed and before all racing automobiles are off the track.' The pit area was defined as the '(a)rea used to register the participants and prepare the automobiles for racing events.'
A promoters liability coverage endorsement, which offered limited protection for claims arising from accidents in the pit area, was attached to the policy and provided in part that the plaintiff would pay all claims which the defendant Lee Raceway, Inc., was obligated to pay as damages for injuries 'sustained by any participant (as hereinafter defined)' in auto racing events at the race track. It also stipulated that the plaintiff would defend Lee Raceway, Inc., in 'any suit or other proceedings brought against the insured . . . in connection with an accident arising out of the Insured's operation as covered by this insurance . . .' and 'pay all costs taxed against the Insured in any legal proceedings defended by the Company . . ..' The endorsement specified that '(t)he Company's liability for loss hereunder is limited to the sum of TWENTY-FIVE thousand dollars ($25,000.) for bodily injuries or death of any one participant (person), and FIFTY thousand dollars ($50,000.) for any one accident resulting in injuries to more than one participant (person).'
A 'participant' was defined as 'any person granted permission for any purpose whatever by the Insured to enter the (pit area) upon signing a Waiver and Release from Liability and Indemnity Agreement.' The waivee and release agreement, consisting of a form drafted by the plaintiff, contained broad language which relieved the defendant Lee Raceway, Inc., of all legal liability from accidents in the pit area. Under the terms of the endorsement, if the defendant Lee Raceway, Inc., failed to deliver to the plaintiff a valid agreement 'dated and signed by the participant prior to the time of the accident in which the participant was injured,' there was no coverage as to any claim by that injured person. It should be noted that the agreement form expressly required the person signing to be over 18 years of age and the endorsement excluded from coverage any claims arising from injuries sustained by a 'participant' under that age at the time the agreement was signed.
Because Joseph A. Suidut had not signed the agreement form prior to the accident, the plaintiff and the defendant Lee Raceway, Inc., are in accord that the injured child is not a 'participant' under the terms of the endorsement. The plaintiff contends that the language of the endorsement, reasonably interpreted, can cover only 'participants' and points out that since Joseph A. Suidut is not within that classification, there is no insurance coverage for his injuries. The plaintiff further argues that Joseph A. Suidut was under 18 years of age at the time of the accident and is thus excluded from coverage.
The defendant Lee Raceway, Inc.,...
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