Lessard v. New Hampshire Ins. Co.

Decision Date18 November 1969
Docket NumberNo. 733-A,733-A
Citation106 R.I. 275,258 A.2d 793
PartiesAdrien LESSARD v. NEW HAMPSHIRE INSURANCE COMPANY.
CourtRhode Island Supreme Court
OPINION

POWERS, Justice.

This is a civil action to recover damages for personal injuries allegedly caused by the negligent operation of a motor vehicle owned by one Louise J. Palumbo and being operated by one Francis D. Palumbo, both of whom were uninsured. The plaintiff was insured in a policy of liability insurance issued by the defendant carrier which policy contains defendant's promise 1 to be responsible for damages sustained by its insured caused by an uninsured motorist as required by G.L. 1956, § 27-7-2.1.

Subsequent to the filing of the complaint and summons, defendant carrier moved to dismiss on the ground that the action was barred by § 9-1-14, which provides that all actions for personal injuries shall be commenced and sued within two (2) years next after the cause of action shall accrue, and not after.

The record establishes that defendant became contractually bound on October 18, 1965, and plaintiff was injured on the following day, namely, October 19, 1965. The instant action was commenced on June 29, 1968, some 32 months after the motor vehicle accident in which plaintiff was injured.

The Superior Court justice before whom the motion to dismiss was heard concluded that the action was one for personal injuries within the meaning of § 9-1-14, and granted defendant's motion to dismiss. From the judgment entered pursuant to this decision, plaintiff seasonably appealed to this court.

In support thereof, he argues that the Superior Court justice erred in that he failed to realize that plaintiff, although seeking to recover money damages for personal injuries, based his claim thereto on defendant's promise to pay, which, he further argues, is an action on a contract that is governed by § 9-1-13, as amended by P.L. 1965, chap. 55, sec. 6. It provides:

'Except as otherwise specially provided, all civil actions shall be commenced within six (6) years next after the cause of action shall accrue, and not after.'

In thus contending that the trial justice applied the wrong statute of limitations, plaintiff stresses said justice's reliance on the holding of this court in Luft v. Factory Mutual Liability Ins. Co. of America, 51 R.I. 452, 155 A. 526, 83 A.L.R. 745.

That case was a direct action against the insurance company on whose insured plaintiff was unable to obtain service. We held that, while by the terms of now G.L. 1956, § 27-7-1, the legislature had authorized direct action by an injured person against the tortfeasor's insurance company when process against the insured was returned non est inventus, it was not the legislature's intention to impose upon the insurer a liability distinct from the liability of the insured to the injured party. Hence, the statute of limitations applicable in an action by the injured person against the tortfeasor would be the applicable statute in a direct suit against the insurer.

Clearly tnen, plaintiff argues, the Luft case is not in point since the instant action is predicated on defendant's contractual obligation to plaintiff. The controlling case here, he contends, is Commerce Oil Refining Corp. v. Miner, 98 R.I. 14, 199 A.2d 606, wherein this court carefully considered and analytically discussed the scope of § 9-1-14, providing for a two-year limitation on actions for personal injuries. Additionally, plaintiff cites a number of cases from other jurisdictions.

The defendant argues, however, that these cases from other jurisdictions on which plaintiff relies largely turn on the distinction to be found in the applicable statutes of the respective states and the construction given to § 9-1-14, in Griffin v. Woodhead, 30 R.I. 204, 74 A. 417, and, indeed, in Commerce Oil Refining Corp. v. Miner, supra, relied on by plaintiff. Thus, defendant argues, the cases from other jurisdictions offer no assistance.

What defendant most vigorously contends, in effect, is that the uninsured motorist protection of § 27-7-2.1, 2 requires a legislatively mandated contractual obligation by a carrier to its insured to be...

To continue reading

Request your trial
4 cases
  • Pickering v. American Employers Ins. Co.
    • United States
    • Rhode Island Supreme Court
    • October 13, 1971
    ...suit as a contract action which falls within the six-year statute of limitations found in § 9-1-13. Recently, in Lessard v. New Hampshire Ins. Co., 106 R.I. 275, 258 A.2d 793, we were confronted with but did not resolve the identical question presented in this phase of defendant's appeal. T......
  • Transnational Ins. Co. v. Simmons
    • United States
    • Arizona Court of Appeals
    • March 15, 1973
    ...244 N.E.2d 546 (1968); Hill v. Seaboard Fire & Marine Insurance Company, 374 S.W.2d 606 (Mo.App.1963); Lessard v. New Hampshire Insurance Company, 106 R.I. 275, 258 A.2d 793 (1969); Schleif v. Hardware Dealer's Mutual Fire Insurance Company, 218 Tenn. 489, 404 S.W.2d 490 (1966); Sahloff v. ......
  • O'Coin v. Woonsocket Inst. Trust Co.
    • United States
    • Rhode Island Supreme Court
    • January 15, 1988
    ...has sustained no legally cognizable damages. See Pickering, 109 R.I. at 149, 282 A.2d at 588 (citing Lessard v. New Hampshire Insurance Company, 106 R.I. 275, 258 A.2d 793 (1969)). Finally we note that plaintiff asserts that his action sounds in contract and observe that nominal and punitiv......
  • State v. Kittell
    • United States
    • Rhode Island Supreme Court
    • April 22, 2004

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT