Lamarre v. Lamarre

• Decision Date: 07 October 1930
• Citation: 152 A. 272
• Parties: LAMARRE v. LAMARRE et al.
• Court: New Hampshire Supreme Court

152 A. 272

LAMARRE

v. LAMARRE et al.

Supreme Court of New Hampshire. Hillsborough.

Oct. 7, 1930.

Rehearing Denied Dec. 2, 1930.

Exceptions from Superior Court, Hillsborough County; Young, J.

Action by Eugenie Lamarre against George Lamarre. Motion by the Maryland Casualty Company to set aside consent judgment and to reopen case for trial on its merits was granted, and plaintiff excepted, and case was reported.

Plaintiff's exception to designated ruling and to order based thereon sustained, and case discharged.

See, also, 147 A. 747.

Case, to recover damages for personal injuries sustained by the plaintiff while riding in the automobile of her husband, the defendant George Lamarre. He was insured against liability by the defendant company which defended under the terms of its policy. The trial was by jury, resulting in a verdict for the plaintiff for $600, which was later set aside as inadequate. Immediately following the trial the company advised the insured by letter: "In view of your failure to cooperate in the defense of this case and your conduct during the trial of this case, the Company disclaims any and all liability on account of the same and on account of any verdict or judgment to be recovered therein. Counsel retained for the defense of the case will be glad to turn over * * * any information in his possession to you or your representative, upon request, which will assist you in any further steps you may care to take." The company's attorney withdrew his appearance and other counsel appeared for the insured. The company then brought a bill in equity against the insured and the plaintiff for cancellation of the policy because of conspiracy, fraud, and collusion at the trial. Upon hearing the bill was dismissed, and the dismissal was sustained in this court by decision rendered January 3, 1928. 83 N. H. 206, 110 A. 174. Eight days later counsel for the insured withdrew his appearance in the superior court, and on the following day the insured appeared pro se and confessed judgment for $10,000. Thereupon the company, having obtained leave to appear, filed the motions here in issue, asking that the consent judgment be set aside, and that the case be reopened for trial on its merits, alleging as grounds therefor fraud, mistake, collusion, and conspiracy.

Upon hearing on its motions the company's letter of February 19, 1924, was introduced. Its attorney admitted that the letter was sent, and the company's appearance withdrawn, against the advice of counsel. Upon these facts and the docket entries the court found and ruled as follows: "The Maryland Casualty Co. was not a party to the agreement, and so its rights will not be affected by it unless the withdrawal of its counsel and its letter of February 19, 1924, as a matter of law amount to an abandonment or waiver of its rights. The court rules that they do not, and finds as a fact that if the plaintiff intends to look to the insurance company to satisfy her judgment, that company is not bound by the agreement, and has the right to be heard upon the question of liability and also upon the question of damages, but if she does not intend to seek satisfaction of her judgment from the insurance company, there is no reason why her agreement with the defendant should be disturbed. It is, therefore, ordered that the plaintiff file with the clerk on or before the fifteenth day of November, 1928, a written statement of her intentions with respect to the satisfaction of her judgment. If she fails to do so, or if she files a statement to the effect that she does not intend to look to the insurance company further, in either event, the Maryland Casualty Company will thereby be released from all further liability on account of its policy, and the judgment against the defendant may stand in accordance with the agreement. If the plaintiff signifies her intention to seek satisfaction from the Maryland Casualty Company, the agreement for judgment will thereby be rendered void, the judgment will be set aside, and the case will stand for trial upon its merits in its regular order." The plaintiff filed a written statement of her intention to look to the company for the satisfaction of her judgment.

Exceptions taken by the plaintiff to such findings, rulings, and orders were allowed by Young, J. So far as material to the decision, these will appear in the opinion.

Banigan & Banigan, of Manchester, for plaintiff.

O'Connor & Saidel, of Manchester, for defendant.

SNOW, J.

As the record is here interpreted, the court in effect ruled that, in the absence of a waiver of its rights, the company was not bound by the agreement for judgment between the parties of record, and rested such holding on the fact that the company was not a party thereto. The plaintiff excepted to this ruling and to the order based thereon.

The company undertook to indemnify the insured against liability. From the earlier transfer, and from concessions of counsel in argument here, it appears that the policy contained the usual provisions of such contracts, binding the company to defend or settle any suit brought to recover damages on account of any accident covered by the policy, and forbidding interference by the insured therewith, or with settlements, except by the company's consent. It appears to be conceded that the policy covers the injury in suit. Pursuant to its contract the company appeared and defended the action. Its assumption of the defense was an assumption of the liability of the insured, if any, for the injury to the plaintiff, which the company could not thereafter escape except by settlement with the plaintiff or payment to the insured. Sanders v. Company, 72 N. H. 485, 495, 496, 501, 57 A. 655, 101 Am. St. Rep. 688; Lombard v. Company, 78 N. H. 110, 111, 97 A. 892. The company's withdrawal did not deprive the plaintiff of her right to continue the prosecution of her suit in the usual course. Upon the disappearance of counsel for the defense she was at liberty to deal with the...