Kirouac v. Healey
Decision Date | 05 June 1962 |
Citation | 104 N.H. 157,181 A.2d 634 |
Parties | Henry L. KIROUAC v. Robert G. HEALEY. |
Court | New Hampshire Supreme Court |
Fisher, Parsons & Moran, and Robert H. Temple, Dover, for plaintiff.
Alfred Catalfo, Jr., Dover, for the defendant, generally, furnished no brief.
Burns, Bryant & Hinchey, and E. Paul Kelly, Dover, for defendant, specially.
John W. King and David L. Nixon, Manchester, as amici curiae.
By statute effective September 1, 1957, the provisions of RSA ch. 268 were amended to require that all policies of motor vehicle liability insurance issued or delivered 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.' Laws 1957, 305:8 (RSA 268:15 (supp)). The policy of insurance issued to the plaintiff Kirouac by the Farm Bureau Mutual Insurance Company in force on the date of the accident in question contained provisions furnishing such insurance.
On February 1, 1960, the plaintiff brought suit against Healey, and on the same date by letter of counsel notified his own insurer of this fact, further stating that he was informed that Healey was uninsured 'and that claim will have to be made against you by Mr. Kirouac under the uninsured motorist clause of his policy.'
Specifically the plaintiff's policy contains an undertaking by the insurer 'to pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury * * * sustained by the insured * * * provided, for the purposes of this coverage, determination as to whether the insured * * * is legally entitled to recover such damages, and, if so the amount thereof, shall be made by agreement between the insured * * * and the company or, if they fail to agree, by arbitration.'
Under the head of 'Arbitration,' the policy further provides that arbitration of the question of the right of the insured to recover against the uninsured motorist, or of the amount of payment owed under the policy, shall in the event of disagreement be had 'upon written demand of either' the insured or the insurer; and that the parties 'each agree to consider itself bound and to be bound by any award made.'
Under the head of 'Conditions' the policy states: 'If, before the company makes payment of loss under [the uninsured motorist provisions] the insured * * * shall institute any legal action * * * against any person * * * responsible for the use of an automobile involved in the accident, a copy of the * * * process served in * * * such legal action shall be forwarded immediately to the company by the insured * * *.'
Our attention has been called to no provision of the policy which purports to forbid suit by the insured against an uninsured motorist, although under the head of 'Exclusions' it is stated: 'This policy does not apply under [uninsured motorist provisions] (b) to bodily injury * * * with respect to which such insured * * * shall without written consent of the company * * * prosecute to judgment any action against any person * * * who may be legally liable therefor * * *.'
Uninsured motorist insurance, so-called, is a comparatively recent development, designed to close a gap in the protection afforded the public under existing Financial Responsibility Acts. See Hartford Acc. Ind. Co. v. Wolbarst, 95 N.H. 40, 57 A.2d 151; Merchants & etc., Cas. Co. v. Tuttle, 98 N.H. 349, 101 A.2d 262. The coverage afforded has been little discussed in decided cases, apart from decisions of the lower courts of New York. See Annot. 79 A.L.R.2d 1252. The question presented is one of first impression here.
The case reaches us upon the plaintiff's exception to dismissal of his action against an uninsured motorist, upon the motion of his own insurer, made in the name of the insured defendant and grounded upon the proposition that the plaintiff is bound to arbitrate his claim against the insurer.
We are satisfied that it was error to dismiss the plaintiff's action. None of the provisions of the policy which have been furnished to us would preclude the maintenance of such an action. The insurer's right under the provisions headed 'Trust Agreement' that the plaintiff shall 'hold in trust for the benefit of the company all rights of recovery' against the uninsured motorist, does not arise unless and until the company has made payment of the loss to the insured. The governing statute specifically preserves to the insured 'in litigating his claim against an uninsured person,' his 'right of trial by jury.' RSA 268:8 (supp).
It may be observed at this point that the insurance provided the plaintiff is against loss suffered by him, rather than against liability to others incurred by him. Thus it is not indemnity insurance in the usual sense. See 44 C.J.S. Insurance § 19, p. 480. Nor is it a contract to indemnify the third-party uninsured motorist against liability, for the contract is not for the latter's benefit. His legal liability will be unaffected by any payment made by the insurer, who will then be subrogated to the plaintiff's rights against the uninsured motorist.
The undertaking of the insurer more closely resembles the undertaking contained in other provisions of the standard policy to pay to the insured medical expenses suffered by him as a result of injury by automobile, although the undertaking now in question is limited to payment of damages for bodily injuries occasioned by a limited category of tort feasors, namely uninsured operators against whom the insured is 'legally entitled to recover.' See 24 Insurance Counsel Journal 134, 136-137. Thus uninsured motorist insurance more closely resembles accident insurance restricted to a limited class of accident, than it does the type of insurance commonly regarded as indemnity insurance. See 44 C.J.S. supra, § 2, p. 474.
The company agrees to pay the insured whatever sums he is 'legally entitled to recover' from the uninsured motorist. Although to establish the insurer's obligation it becomes necessary to determine in some fashion what, if any, amount the insured is legally entitled to recover from a third person, the insurer does not for that reason become the insurer of the third person, nor entitled to represent him, or to control his defense if he is sued. The contract of insurance does not entitle the plaintiff's insurer as a matter of law to dismissal of the pending action, even though it is permitted to intervene in the action, or compelled to appear as justice may require. See Perkins v. Associates, 100 N.H. 247, 123 A.2d 825.
We think it plain that the plaintiff's insurer has no standing in the pending suit to demand that the plaintiff's right to recover from the uninsured motorist be...
To continue reading
Request your trial-
Indiana Ins. Co. v. Noble, 569A84
...Court of Arkansas stated that it was doubtful that the insurer has the right to defend the uninsured motorist. In Kirouac v. Healey, 104 N.H. 157, 181 A.2d 634 (1964), the Supreme Court of New Hampshire held that the insurance company had no standing in its insured's action against an unins......
-
Nationwide Mut. Ins. Co. v. Webb
...Automobile Insurance Co., 420 F.2d 1372 (6th Cir.), cert. denied, 399 U.S. 928, 90 S.Ct. 2245, 26 L.Ed.2d 795 (1970); Kirouac v. Healey, 104 N.H. 157, 181 A.2d 634 (1962). More specifically, judicial opinions dealing with statutory schemes like Maryland's have with virtual unanimity invalid......
-
Lima v. Chambers
...v. Jones, 184 Neb. 602, 169 N.W.2d 606 (1969); Allstate Ins. Co. v. Pietrosh, 85 Nev. 310, 454 P.2d 106 (1969); Kirouac v. Healey, 104 N.H. 157, 181 A.2d 634 (1962); Keel v. MFA Ins. Co., Okl., 553 P.2d 153 (1976); Glover v. Tennessee Farmers Mutual Ins. Co., 225 Tenn. 306, 468 S.W.2d 727 (......
-
Kisling v. MFA Mut. Ins. Co.
...Fla.App., 175 So.2d 581 (1965); Travelers Indemnity Co. v. Kowalski, 233 Cal.App.2d 607, 43 Cal.Rptr. 843 (1965); Kirouac v. Healey, 104 N.H. 157, 181 A.2d 634, 637-638 (1962)] and, in jurisdictions where such contracts to arbitrate are invalid, the judgment prohibition usually is unenforce......