Maryland Cas. Co. v. Coman
| Decision Date | 10 September 1965 |
| Citation | 212 A.2d 703,106 N.H. 364 |
| Parties | MARYLAND CASUALTY COMPANY v. James J. COMAN et al. |
| Court | New Hampshire Supreme Court |
Sheehan, Phinney, Bass, Green & Bergevin and Richard A. Morse, Manchester, for plaintiff.
McLaughlin, Berrigan, Nashua, for defendant Coman.
Devine, Millimet, McDonough, Stahl & Branch and David A. Brock, Manchester, for defendant Flaherty.
Booth, Wadleigh, Langdell, Starr & Peters and Richard C. Kohls, Manchester, for defendant Walsh.
Broderick, Craig & Bourque, Manchester (William H. Craig, Manchester, orally), for defendant Migliozzi.
Since the policy in question in this case was issued in New Jersey, the rights and obligations of the parties arising out of it are governed by the law of New Jersey. Boisvert v. Boisvert, 94 N.H. 357, 358, 53 A.2d 515; Hinchey v. National Surety Co., 99 N.H. 373, 111 A.2d 827. The condition of the policy alleged to have been violated by the insured provided in part as follows: 'The insured shall cooperate with the company and, upon the company's request, attend hearings and trials and assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance.'
Under the law of New Jersey, as well as that of other jurisdictions, the duty to cooperate with the insurer under such a provision is held to require a full, frank and fair disclosure of information in the possession of an insured. Annot. 34 A.L.R.2d 264, 265.
The instant proceedings arise out of the following events: The insured and his five passengers were students at St. Anselm's College in Manchester. When the accident occurred, at about 1:50 A.M. on December 14, 1961, they were returning to Manchester from a basketball game at Worcester, Massachusetts. After leaving Worcester, they had made several stops for food and beer, but there was no evidence that any of them was affected by the beer. Most of them however had been up late the previous night studying for examinations given before the Christmas holiday which was to commence on December 14. As they were proceeding at a moderate speed through falling snow in Amherst, New Hampshire, Coman dozed, lost control of the vehicle, and it struck a pole near the highway. All of the occupants of the car were injured, the defendants Migliozzi and Flaherty most seriously.
Prior to the basketball game, the students had been warned by college authorities that any breach of school disciplinary rules would result in expulsion. When the accident occurred, Coman and his friends were aware that the dean of men was traveling behind them with buses from the college, and they were apprehensive that discovery of their consumption of beer followed by the accident would result in their expulsion from the college. Two of the passengers went to summon aid and first advanced the explanation that the vehicle had been forced off the road by an on-coming car. Upon arrival of the college buses, all of the boys were taken to the Nashua Hospital. While glass was being removed from Coman's face at the hospital, he was told by one of his companions that the same statement had been made at the hospital to a state trooper, and Coman, believing that his 'education hung in the brink,' adopted it as his own version of the accident, in the hope of preserving his standing at the college.
During the Christmas holidays Coman was interviewed in New Jersey by a representative of the insurer. The interview took place in the presence of Coman's father, the named insured, who was Chief of Police in Rahway, and Coman repeated his earlier statement that the car had been forced off the road.
In May 1962, a Manchester representative of the insurer visited the college, after having learned on May 10 from counsel for the defendant Flaherty that the original statements given by the boys were not correct. As a result of this interview, Coman and other occupants of the car gave new statements on May 23 admitting that the previous statements had been incorrect, and relating how the accident actually occurred. Thereafter Coman offered his assistance to the Manchester representative on more than one occasion.
No actions were brought until this petition was filed by the insurer in October 1962. Thereafter actions at law were brought by three of the passengers, the claims of the two others having been settled.
The issue presented by several of plaintiff's exceptions is whether the conduct of the insured must be said as a matter of law to have constituted a breach of the cooperation clause of the policy. The law of New Jersey with respect to this question, as enunciated in decisions in that jurisdiction since the establishment of its present court system in 1947, is found in the decisions of the Appellate Division of the Superior Court. Those decisions establish that the making of untrue statements by the insured to his insured will constitute a breach of the cooperation clause, if the clause is 'deliberately breached in a material or essential particular.' Pearl Assurance Co. Ltd. v. Watts, 58 N.J.Super. 483, 490, 156 A.2d 725, 729. See also, Sutera v. Provident Ins. Co. of N. Y., 67 N.J.Super. 554, 171 A.2d 340; Pearl Assurance Co. Ltd. v. Watts, 69 N.J.Super. 198, 174 A.2d 90; Glens Falls Indemnity Co. v. Keliher, 88 N.H. 253, 261, 187 A. 473.
Here it is not disputed that Coman originally gave a false statement to the plaintiff insurer, and that he knew it to be false when he gave it. The Trial Court so instructed the jury. The plaintiff argues that since the statement pertained to a material matter viz., the cause of the accident, it follows as a matter of law that there was a breach of the condition.
We do not so read the New Jersey cases. While the statement was intentionally made, the making of it was not necessarily a 'deliberate breach' of the policy within the requirements of the New Jersey cases. The jury could find from the testimony of James Coman that he was prompted to misstate the facts through considerations having no relation to insurance, and without collusion or purpose to defraud or obstruct the company. See Pearl Assurance Co. Ltd. v. Watts, supra, 58 N.J.Super. 483, 490, 156 A.2d 725; American Sur. Co of New York v. Diamond, 1 N.Y.2d 594, 599, 154 N.Y.S.2d 918, 922, 136 N.E.2d 876, 879. In the circumstances, his conduct would not necessarily require a finding of deliberate...
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