Markham v. Allstate Ins. Co.

• Decision Date: 11 March 1976
• Docket Number: No. 74-101-M,74-101-M
• Citation: 352 A.2d 651,116 R.I. 152
• Parties: Virginia MARKHAM et al. v. ALLSTATE INSURANCE COMPANY et al. Salvatore AZZOLI v. ALLSTATE INSURANCE COMPANY et al. P.
• Court: Rhode Island Supreme Court

Page 651

352 A.2d 651

116 R.I. 152

Virginia MARKHAM et al. v. ALLSTATE INSURANCE COMPANY et al.

Salvatore AZZOLI v. ALLSTATE INSURANCE COMPANY et al.

No. 74-101-M.P.

Supreme Court of Rhode Island.

March 11, 1976.

[116 R.I. 157] Gorham & Gorham, Inc., Bradford Gorham, Providence, for plaintiffs-respondents.

Robert L. Kiernan, Warwick, Thomas L. Marcaccio, Providence, for Salvatore Azzoli.

Higgins, Cavanagh & Cooney, Joseph V. Cavanagh, James M. Micali, Providence, for defendants-petitioners.

OPINION

DORIS, Justice.

This is a petition for writ of certiorari to review the ruling of a justice of the Superior Court denying the defendant's motions to substitute the administratrix of a deceased defendant as a party defendant and granting the plaintiffs' motions to substitute a deceased defendant's insurer as a party defendant.

The record indicates that these consolidated cases arose out of a motor vehicle accident which occurred on Interstate Route 95 in the city of Cranston on February 3, 1970. William C. Carpenter, a resident of the State of New Jersey and operator of a truck owned by defendant Cross Transportation, Inc., was a named defendant in both actions. Allstate Insurance Company insured both Cross Transportation, Inc., and Carpenter, but was not named a party defendant in either complaint since Rhode Island law does not permit direct action against an insurer.

After suit was commenced and both actions had been consolidated, Carpenter died on September 30, 1973. His death was suggested on the record and his widow Winifred Carpenter, who had been appointed as the administratrix of his estate by a Probate Court in the state of New Jersey, moved to be substituted as a party defendant. The plaintiffs, Markham, objected to the proposed substitution and moved to add Carpenter's insurer, Allstate Insurance Company, as a party defendant.

After a hearing, a justice of the Superior Court denied the widow-administratrix's motion for substitution and granted the motion to add Allstate Insurance Company as a party defendant in the Markham case. Thereafter, in the Azzoli case, the Superior Court justice denied the widow-administratrix's motion for substitution and ordered Allstate Insurance Company added as a party defendant.

Allstate Insurance Company thereupon filed a petition for a writ of certiorari in this court alleging that the Superior Court justice erred in his interpretation of G.L.1956 (1968 Reenactment) § 27-7-2 ¹ in ordering Allstate Insurance Company as a party defendant in each case. We ordered the writ to issue and in compliance therewith, the clerk of the Superior Court has certified the record to this court.

The sole question presented for our determination is the interpretation of § 27-7-2 as it relates to the substitution of the insurer as a party when an insured dies before judgment while a suit is pending against him.

The defendant, Allstate, points out that in its original form the language in § 27-7-2 provides that in a suit against an insured, the injured party shall not join the insurer as a defendant. Allstate further points out that two recent amendments to § 27-7-2 namely, P.L.1972, ch. 188, § 1, and P.L.1973, ch. 205, § 1, reenacted the same language. Allstate argues that by reason thereof the Legislature clearly evidenced its intention that in order to protect against prejudice before a jury, an insurer should not be named as a party defendant. Allstate further argues that if an insurer is a defendant before a jury, the potential for prejudice is great and that the death of a defendant should not alter this rule against prejudice if it can be avoided.

The defendant concedes however, that the language of the statute provides that where a suit is pending against an insured in his name and the insured dies prior to judgment, the party entitled to sue may proceed directly against the insurer. The defendant states that this amendment was enacted solely for the purpose of allowing the substitution of an insurer as a party defendant, where the insured has died during suit and where no personal representative of his estate is available against whom plaintiff can proceed. The defendant contends that since deceased defendant's administratrix was available for substitution that the trial justice erred when he granted plaintiffs' motion to substitute Allstate as a party defendant under provisions of § 27-7-2.

The plaintiffs contend that § 27-7-2 is clear and unambiguous in its terms. They point out that an insurer is not to be joined as a defendant except in certain instances which are plainly and clearly set forth in the statute. They argue that by terms of the statute, the plaintiff is given the option to sue the insurer directly and that no condition has been attached by the Legislature to the plaintiff's choice of proceeding directly against the insurer when suit is pending...