Merchants Mut. Cas. Co. v. Egan

• Citation: 20 A.2d 480
• Parties: MERCHANTS MUT. CASUALTY CO. v. EGAN et al.
• Decision Date: 01 April 1941
• Court: Supreme Court of New Hampshire

20 A.2d 480

MERCHANTS MUT. CASUALTY CO.

v. EGAN et al.

Supreme Court of New Hampshire. Merrimack.

April 1, 1941.

Transferred from Superior Court, Merrimack County; Connor, judge.

Petition by the Merchants Mutual Casualty Company against Dorothy Egan and others, for a declaratory judgment to determine whether an automobile liability policy issued by the plaintiff covered a certain automobile which was being operated by the named defendant. The plaintiff moved for judgment on master's report and the defendant moved to set aside the report and for dismissal of the petition, and all questions of law were transferred without ruling.

Petition dismissed.

Petition for a declaratory judgment to determine whether an automobile liability policy issued by the plaintiff covered a certain automobile which was being operated by the defendant, Dorothy Egan, upon June 22, 1939. Hearing before a master, who found for the plaintiff. Thereafter the plaintiff moved for judgment on the report and the defendant moved to set aside the report and for the dismissal of the petition. All questions of law raised by the bill, answer master's report and the aforesaid motions were transferred without ruling by Connor, J.

The policy in question was issued July 9, 1938, to William J. Egan. It was duly approved by the insurance commissioner. William J. Egan died February 4, 1939. The insured car was involved in an accident June 22, 1939. Other facts are stated in the opinion.

Devine & Tobin, of Manchester (John E. Tobin, of Manchester, orally), for plaintiff.

Robert Rich, of Berlin, and Hinkley & Hinkley, of Lancaster (Irving A. Hinkley, of Lancaster, orally), for defendants.

BRANCH, Justice.

This case raises a question as to the validity of the following provision of the defendant's policy of automobile liability insurance.

"8. Assignment. No assignment of interest under this policy shall bind the company until its consent is endorsed hereon; if, however, the named insured shall die or be adjudged bankrupt or insolvent within the policy period, this policy, unless canceled, shall, if written notice be given to the company within thirty days after the date of such death or adjudication, cover (1) the named insured's Legal Representative as the named insured, and (2) subject otherwise to the provisions of paragraph III, any person having proper temporary custody of the automobile, as an insured, until the appointment and qualification of Such Legal Representative, but in no event for a period of more than thirty days after the date of such death or adjudication."

The question arises by reason of the following provisions of the statute, Laws 1937, c. 161:

"16. Policy, Form. * * * Said insurance commissioner shall approve a form of policy which contains the name, address and business of the insured, a description of the motor vehicles and trailers or semitrailers covered, with the premium charges therefor, the policy period, the limits of liability, and an agreement that insurance is provided in accordance with and subject to the provisions of this act.

"17. Required Provisions. A motor vehicle liability policy shall be subject to the following provisions which need not be contained therein: * * *

"IV. If the death, insolvency or bankruptcy of the insured shall occur within the policy period, the policy during the unexpired portion of such period shall cover the legal representatives of the insured. Such policy shall contain such provisions, as are not inconsistent with this act, as shall be required by the insurance commissioner."

It is the contention of the defendant that the above provision of the policy is inconsistent with the statute and hence beyond the power of the commissioner to approve, while the plaintiff argues that "a method is merely set up with the approval of the commissioner and not inconsistent with the statute, by which the company can be informed as to its new contractual party."

The policy requires that "notice" shall be given to the company within 30 days after the death of the insured as a condition precedent of liability. The plaintiff argues that "no notice having been given to the company, the insurance on the car ceased as of March 4, 1939." In accordance with this argument the master found "that the conditions named in paragraph 8 of the policy under which the liability of the plaintiff upon the policy might have been continued after Mr. Egan's death were not complied with" and ruled "that at the time of the accident there was no coverage on this policy." In other words, the master ruled that the failure of the defendant to comply with the conditions of the policy reduced the duration of the statutory extension to 30 days although the statute specifically says that it shall continue in force for the full policy period. This is plainly inconsistent with the terms of ...