Lumbermans Mut. Cas. Co. v. Blake

• Decision Date: 27 June 1946
• Citation: 47 A.2d 874
• Parties: LUMBERMANS MUT. CASUALTY CO. v. BLAKE et al.
• Court: New Hampshire Supreme Court

47 A.2d 874

LUMBERMANS MUT. CASUALTY CO.

v.BLAKE et al.

Supreme Court of New Hampshire.

June 27, 1946.

Transferred from Superior Court, Merrimack County; Tobin, Judge.

Petition by Lumbermans Mutual Casualty Company against Louis J. Blake and another, for a declaratory judgment to determine whether provisions of a so-called fleet automobile liability policy require plaintiff to assume defense of an action brought against Louis J. Blake by his wife to recover for personal injuries alleged to have been caused by the defendant's negligent operation of an automobile. Case transferred.

Judgment for the defendants.

Petition for a declaratory judgment to determine whether the provisions of a so-called fleet automobile liability policy require the plaintiff to assume the defense of an action brought against Louis J. Blake (hereinafter called the defendant) by his wife to recover for personal injuries alleged to have been caused by the defendant's negligent operation of an automobile at Franklin on July 14, 1938.

The policy in question purports to insure certain employees of the Standard Oil Company of New Jersey as owners and operators, for business or pleasure, of various automobiles. These owners and their automobiles are enumerated in a schedule attached to the policy. The defendant, though not named in the list of car owners, claims the benefit of the policy by virtue of an endorsement countersigned by the plaintiff's authorized representative on June 30, 1938, and mailed to the Standard Oil Company on July 20. The residence of the defendant is stated in the endorsement to be Lake Sunapee, New Hampshire.

Trial by the Court, whose findings of fact and rulings of law were substantially as follows:

‘It appears without contradiction that the defendants, Mr. and Mrs. Blake, had arranged to borrow a friend's car for a proposed vacation trip to Lake Sunapee, New Hampshire. Mr. Blake, an employee of the Standard Oil Company, requested that company to procure an endorsement on its policy to cover both himself and Mrs. Blake on their journey. While driving through Franklin, New Hampshire, on July 14, 1938, a collision occurred with another car and Mrs. Blake received injuries, allegedly due to the negligence of Mr. Blake in the operation of the car. Suit was instituted in New Hampshire by Mrs. Blake against her husband seeking to recover damages for this alleged negligence. If judgment is recovered in that action, claim will be made against the plaintiff herein, for satisfaction thereof. The plaintiff denies coverage to Mr. Blake on account of any injuries sustained by his wife.

‘In May, 1938, the Standard Oil Company of New Jersey, having an office in New York, applied through Alexander & Alexander, insurance brokers, for a policy of automobile liability insurance. The policy, which was issued by the plaintiff, purports to have been countersigned at Newark, New Jersey, on May 10, 1938 by W. B. Morrell, ‘Authorized Representative.’ Mr. Morrell by deposition denies this to be his signature and states that the policy was not issued from the plaintiff's New Jersey office, and what purports to be his signature was affixed in the New York office under a power of attorney executed by him many years ago.

‘Later a request was received by Alexander & Alexander from the Standard Oil Company's insurance department to bind operator's coverage on behalf of the defendant, Louis J. Blake and Hilda S. Blake. Alexander & Alexander them telephoned the plaintiff's New York office requesting a binder and the issuance of the necessary endorsements to the policy so as to include Mr. and Mrs. Blake within its terms. Such coverage was bound on June 23, 1938. As in the instance of the original policy, the endorsement purports to have been countersigned at Newark, New Jersey, and bears the name W. B. Morrell, Authorized Agent. Mr. Morrell again denies this to be his signature and advances the same explanation as in the case of the original policy.

‘Merely because it appears on the policy and the endorsement that the contract was signed in New Jersey is not controlling in view of the other circumstances already outlined. The Court therefore finds as a fact that the policy and the endorsement were issued and became effective in New York, and the Court rules as a matter of law that the rights and liabilities of the parties hereto, under the policy and the endorsement, are to be determined in accordance with the New York law applicable.

‘Concerning liability policies, the statutory law of that state [N.Y.Laws 1937, c. 669, Insurance Law, Consol. Laws, c. 28, § 109, subd. 3-a] provides: ‘No such policy * * * heretofore or hereafter issued shall be deemed to insure against any liability of an assured for injuries to his or her spouse, or for injuries to property of his or her spouse, unless express provision for such insurance is included in the policy.’ The Court finds that there is no express term in the policy as to spouses and rules that the New...