National Grange Mut. Ins. Co. v. Watterson, 79-028
| Decision Date | 05 March 1980 |
| Docket Number | No. 79-028,79-028 |
| Citation | 120 N.H. 141,412 A.2d 1007 |
| Parties | NATIONAL GRANGE MUTUAL INSURANCE COMPANY v. Oliver N. WATTERSON, Fireman's Fund American Insurance Company and Frederick M. Jenovese. |
| Court | New Hampshire Supreme Court |
Hall, Morse, Gallagher & Anderson, Concord (William S. Hall, Concord, orally), for plaintiff National Grange Mut. Ins.
Upton, Sanders & Smith, Concord (Gary B. Richardson, Concord, orally), for defendant Oliver N. Watterson.
Wiggin & Nourie, Manchester (Gregory A. Holmes, Manchester, orally), for defendant Fireman's Fund American Ins. Co.
Paul A. Rinden, P. A., Concord, for defendant Frederick M. Jenovese.
This is a petition for declaratory judgment brought by the plaintiff National Grange Mutual Insurance Company to determine whether it must provide coverage under a homeowner's policy to its insured Oliver N. Watterson, with respect to a tort action brought against him by Frederick M. Jenovese. Watterson, Jenovese, and Fireman's Fund American Insurance Company (which insured Watterson under a general automobile liability policy) filed motions to dismiss, alleging that the petition for declaratory judgment was not timely filed under RSA 491:22. A hearing was held before a Master (Robert A. Carignan, Esq.), whose recommendation to dismiss the petition for declaratory judgment was approved by the Superior Court (DiClerico, J.). Plaintiff's exceptions were reserved and transferred.
Jenovese's underlying tort action was commenced by a writ returnable on the first Tuesday of April, 1975. It alleged "that said defendant Watterson, on the twentieth day of September, A.D. 1974, at the City Dump of Concord, N.H., with force and arms made an assault upon the plaintiff . . . violently threw him upon the ground from atop the truck he was standing on, causing him to suffer a broken ankle and other injuries . . . to the plaintiff's damage in the sum of twenty-five thousand dollars." At the bottom of the writ the following sentence appeared: "(t)o the damage of the plaintiff as he says the sum of Five Hundred Thousand and 00/00 dollars." Watterson's homeowner's policy with the National Grange excludes coverage for injuries intentionally caused by him.
By letter of March 20, 1975, National Grange notified Watterson that attorneys had been retained to defend him, but that he may wish to obtain independent counsel to protect himself against a judgment in excess of his insurance coverage which was limited to $25,000. Watterson retained independent counsel. However, due to a misunderstanding over the amount of damages being claimed by the plaintiff, his counsel did not become actively involved in the litigation until the summer of 1977.
National Grange filed a reservation of rights on April 1, 1975. This reservation states:
(T)he special appearance which has been entered on behalf of Oliver Watterson is for the purpose of representing National Grange Mutual Insurance Company to the extent of the limits of coverage provided Watterson in a liability insurance policy issued to Oliver Watterson. Inasmuch as the ad damnum in this action exceeds the amount of the coverage extended to him, this appearance is not to be construed as covering the action beyond the extent of the amount of the coverage.
Under this reservation, counsel for National Grange and Jenovese attended a pretrial conference before the Superior Court (Cann, J.) on April 6, 1977. At that time counsel for Jenovese announced his intention to amend the writ to allege a count in negligence rather than intentional tort. National Grange advised the court that in the event the writ was amended it would file a petition for declaratory judgment.
A motion to amend the writ was filed on July 5, 1977, and was granted on August 12, 1977. The amended writ set forth a count in negligence and prayed for damages in the amount of $500,000 alleging that Jenovese's leg had to be amputated as a result of the injuries sustained. On August 1, 1977, National Grange filed its petition for declaratory judgment and shortly thereafter the defendants filed their motions to dismiss.
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Binda v. Royal Ins. Co.
...six-month limitations period under RSA 491:22, III. See Mottolo, 127 N.H. at 284, 498 A.2d at 764; National Grange Mut. Ins. Co. v. Watterson, 120 N.H. 141, 143–44, 412 A.2d 1007, 1009 (1980). In reviewing the amended writ, our primary focus was whether new allegations raise distinct issues......
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Mottolo v. U.S. Fidelity & Guar. Co.
...due to neglect." This court has made these exceptions available to insureds as well as insurers, National Grange Mut. Ins. Co. v. Watterson, 120 N.H. 141, 145, 412 A.2d 1007, 1009 (1980), and has applied the exception concerning mistakes to those of law as well as of fact, Guarantee Mut. As......
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...accident nor mistake nor misfortune contributed to the late filing of the petition. Relying on National Grange Mutual Insurance Co. v. Watterson, 120 N.H. 141, 412 A.2d 1007 (1980), the company urges us to interpret RSA 491:22 as providing that a petition may be filed within six months of t......
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