Maryland Cas. Co. v. Waumbec Mills, Inc.

• Decision Date: 10 July 1959
• Citation: 152 A.2d 619,102 N.H. 200
• Parties: MARYLAND CASUALTY COMPANY v. WAUMBEC MILLS, INC. et al.
• Court: New Hampshire Supreme Court

Page 619

152 A.2d 619

102 N.H. 200

MARYLAND CASUALTY COMPANY v. WAUMBEC MILLS, INC. et al.

Supreme Court of New Hampshire.

Argued April 7, 1959.

Decided July 10, 1959.

Sheehan, Phinney, Bass, Green & Bergevin and Richard A. Morse, Manchester (William L. Phinney, Manchester, orally), for plaintiff.

Wiggin, Nourie, Sundeen, Nassikas & Pingree and Peter J. Bourque, Manchester, for the defendants Waumbec Mills, Inc. and its insurance carrier, Employers' Mut. Liability Ins. Co. of Wisconsin.

Booth, Wadleigh, Langdell, Starr & Peters, Manchester (Robert P. Booth, Manchester, orally), for defendant, The Bahnson Service Company.

DUNCAN, Justice.

Waumbec Mills, Inc. by written contract dated April 20, 1951, employed a contractor, The Bahnson Service Company, to install a heating and air conditioning system on Waumbec's premises. In the course of the work, two of Bahnson's employees were injured on September 25, 1951, and workmen's compensation was thereafter paid to them by the plaintiff, Maryland Casualty Company, under a policy of 'workmen's compensation and employers liability' insurance which it had issued to Bahnson.

Subsequently, in 1955, the same employees recovered judgments against Waumbec in actions for negligence in the installation and maintenance of certain electrical wiring. These judgments were satisfied by Waumbec from funds advanced to it under a 'loan receipt agreement' by Employers Mutual Liability Insurance Company of Wisconsin, its insurer under a policy referred to in certain of the pleadings as a policy of public liability insurance. A portion of these funds was paid to the plaintiff Maryland Casualty Company, as reimbursement for the workmen's compensation previously paid by it. This reimbursement was secured by a lien in favor of its insured, the employer Bahnson. See RSA 281:14.

By writ dated March 29, 1956, Waumbec sued Bahnson in assumpsit to recover the amounts paid on account of the judgments in favor of the employees, declaring upon the contract of April 20, 1951, and in particular the following 'general condition' thereof: 'This Contractor [The Bahnson Service Company] shall maintain such accident and liability insurance as will adequately protect him and the Owner [Waumbec Mills, Inc.] from claims for damage for personal injuries arising directly or indirectly from operations under this contract as to all persons, both employees and the public, complying with all laws covering this subject, and he shall be liable to the Owner for failure to maintain such insurance.'

On July 3, 1957, Bahnson moved that Employers Mutual Liability Insurance Company be joined as a party plaintiff in the law action, and the plaintiff Maryland Casualty Company as a party defendant. Maryland thereupon filed this petition for declaratory judgment, alleging that the policy in question did not provide coverage against the liability sued upon by Waumbec and the petition was tried by the Court.

The exceptions to the ruling of the Trial Court that the petition for declaratory judgment should be heard in advance of further proceedings in the law action (see Merchants Mut. Cas. Co. v. Kennett, 90 N.H. 253, 7 A.2d 249) presents no question of law, since there was evidence upon which the Court could properly so rule. Whether Maryland should or could be cited in as a party defendant in the action at law depended upon whether it insured Bahnson against liability for the alleged breach of its contract with Waumbec. The argument on behalf of Bahnson that the ruling was made as a matter of law is not supported by the record. We find nothing to indicate that the ruling was not made in the Court's discretion, and the presumption is that it was. Vallee v. Spaulding Fibre Company, 89 N.H. 285, 291, 197 A. 697; Perkins v. Exster Associates, 100 N.H. 247, 123 A.2d 825. The exceptions to the ruling are accordingly overruled.

The remaining and principal issue concerns Maryland's alleged obligation to defend Bahnson in the assumpsit action and to satisfy any judgment which Waumbec may recover on account of Bahnson's alleged breach of contract. The policy issued by Maryland to Bahnson, styled a 'comprehensive general liability policy,' provides in part that the insurer 'agrees * * * subject to the limits of liability, exclusions, conditions and other terms of this policy * * *. I Coverage A--Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.'

Under the head of 'Exclusion' the policy contains the following provisions material to this case: 'This policy does not apply: (a) to liability assumed by the insured under any contract or agreement * * * (c) under coverage A * * * to bodily injury to * * * any employee of the insured while engaged in the employment of the insured, or any obligation for which the insured or any company as his insurer may be held liable under any workmen's compensation law.'

The issue presented by the petition for declaratory judgment is thus seen to consist of the following question: Is Bahnson's liability by reason of its alleged breach of agreement to insure Waumbec against 'claims for damage for personal injuries arising out of operations' in the installation of the...