Morin v. Berkshire Mut. Ins. Co.

• Decision Date: 08 May 1985
• Docket Number: No. 84-519,84-519
• Citation: Morin v. Berkshire Mut. Ins. Co., 493 A.2d 500, 126 N.H. 485 (N.H. 1985)
• Parties: Pierre MORIN and Madeline Morin v. BERKSHIRE MUTUAL INSURANCE COMPANY.
• Court: New Hampshire Supreme Court

Page 500

493 A.2d 500

126 N.H. 485

Pierre MORIN and Madeline Morin v. BERKSHIRE MUTUAL INSURANCE COMPANY.

No. 84-519.

Supreme Court of New Hampshire.

May 8, 1985.

Brown & Nixon P.A., Manchester (Joseph F. Keefe (orally) and Francis G. Murphy, Jr., on the brief), for plaintiffs.

Wiggin & Nourie, Manchester (Alan R. Kusinitz on the brief and orally), for defendant.

MEMORANDUM OPINION

The issue on appeal is whether the Superior Court (Wyman, J.) properly dismissed the declaratory judgment action filed by the plaintiffs, Pierre and Madeline Morin, against the defendant, Berkshire Mutual Insurance Company. We affirm.

In considering a motion to dismiss, the plaintiffs' allegations are regarded as true. Aldrich v. Beauregard & Sons, 105 N.H. 330, 331, 200 A.2d 14, 15 (1964). The plaintiffs here allege the following: that the plaintiffs purchased from the defendant an automobile insurance policy, which covered, inter alia, damage to the plaintiffs' cars due to vandalism; that while the policy was effective, one of the plaintiffs' cars was vandalized when rice and other objects were placed in the gas tank; and that the defendant acknowledged that repairs occasioned by this vandalism were covered under the policy and agreed to pay for these repairs, but "refused to tender payment for other repairs ..., claiming them to be unrelated to the ... incident of vandalism ...." On the basis of these allegations, the plaintiffs sought a judgment ordering the defendant to pay for the costs of the disputed repairs, which amounted to $349.65.

The plaintiffs' suit essentially stated an action in contract. See Bertolami v. Merchants Mutual Ins. Co., 120 N.H. 308, 313, 414 A.2d 1281,...