Pawtucket Mut. Ins. Co. v. Lebrecht

Decision Date30 April 1963
Citation104 N.H. 465,190 A.2d 420
Parties, 2 A.L.R.3d 1229 PAWTUCKET MUTUAL INSURANCE COMPANY v. Thomas B. LEBRECHT et al.
CourtNew Hampshire Supreme Court

Wiggin, Nourie, Sundeen, Nassikas & Pingree and Dort S. Bigg, Manchester, for plaintiff, Pawtucket Mutual Ins. Co.

Upton, Sanders & Upton and Carleton Eldredge, Concord, for defendants, Thomas B. and Marjorie R. Lebrecht.

Hartnett & Moher, Dover, for defendants, Barbara Getchell, p/p/a Horace K. Getchell and Horace K. Getchell, individual.

LAMPRON, Justice.

On May 9, 1959, Roger Lebrecht, the seventeen year old son of the policyholders and a resident of their household, is alleged to have committed an assault on Barbara Getchell, also a minor. On February 17, 1960, Horace K. Getchell, Barbara's father, brought an action for her, and another individually, against the policyholders, Thomas and Marjorie. The declarations in these actions allege that the defendants who had custody and control of their minor son 'so conducted themselves in the care, custody, control and upbringing of said minor * * * and otherwise that through their negligence and fault and/or wanton, wilful conduct and through their neglect, said Roger Lebrecht, who was a delinquent minor' committed the aggravated assault which is the basis of the actions.

The Company takes the position that the assault of Barbara by Roger was an intentional act liability for which is excluded under the terms of the policy and further that the failure of the Lebrechts to give the Company timely notice of the assault and battery also bars them from coverage.

As to the Company's first contention, the Court ruled 'that the actions instituted against the Lebrechts are based on claims of negligent acts and that coverage is not excluded by the terms of the policy.'

Section II of the policy reads as follows: 'Coverage F--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 * * * sustained by any person.'

'Insured' is defined as follows: 'The unqualified word 'Insured' includes (a) the named Insured, (b) if residents of his household, his spouse, the relatives of either and any other person under the age of 21 in the care of an Insured.'

Under exclusions (c) the policy provides there will be no liability coverage for 'injury * * * caused intentionally by or at the direction of the Insured.'

The Company takes the position that the above definition of 'Insured' must be interpolated into the provisions of exclusion (c). In other words it contends that where the policy excludes coverage of injuries caused intentionally by 'the Insured' this exclusion comprehends injuries intentionally caused by any 'Insured'.

Thomas and Marjorie Lebrecht, the policyholders, maintain that each 'Insured' stands alone with respect to the exclusion. Consequently since they committed no intentional act, the exclusion is inapplicable as to any suit against them even though the perpetrator of the act was their son, an additional 'Insured' under the policy. We agree with this interpretation.

The exclusions which apply to the liability coverage of this policy are contained in eight paragraphs lettered (a) through (h). Paragraph (a) excludes any business pursuits of 'an Insured'. Paragraph (c), involved here, excludes injury caused intentionally by or at the direction of 'the Insured.' Paragraph (g) excludes coverage for medical payments to 'any Insured within the meaning of parts (a) and (b)' of the definition of 'Insured' previously set out in this opinion. This definition refers to 'the named Insured' in part (a) and to 'an Insured' in part (b).

Furthermore paragraph 2 of the policy conditions reads 'Severability of Interests--Coverage F: The term 'the Insured' is used severally and not collectively, but the inclusion harein of more than one Insured shall not operate to increase the limits of this Company's liability'.

It is reasonable to assume that when the company used the definite expression 'the Insured' in certain provisions of the policy and the more indefinite or general expression 'any Insured' or 'an Insured' in other provisions, it intended to cover differing situations which might come within the terms of the policy. Shelby, etc., Co. v. Lynch, 89 N.H. 510, 512, 2 A.2d 307, 119 A.L.R. 874; Standard, etc., Ins. Co. v. Swift, 92 N.H. 364, 367, 31 A.2d 66. We are of the opinion that the provisions excluding from liability coverage injuries intentionally caused by 'the Insured' was meant to refer to a definite, specific insured, namely the insured who is involved in the occurrence which caused the injury and who is seeking coverage under the policy. Employers, etc. Ins. Co. v. Byers, 99 N.H. 455, 457, 114 A.2d 888. Consequently the policy covers the named insureds, Thomas and Marjorie Lebrecht against liability for the intentional injury committed not by them but by their minor son who is an insured under the omnibus clause but who would be excluded from coverage as the insured under exclusion clause 'c'. Hoyt v. New Hampshire Fire Insurance Co., 92 N.H. 242, 29 A.2d 121, 148 A.L.R. 484; Arenson v. National Automobile & Casualty Insurance Co., 45 Cal.2d 81, 286 P.2d 816; See Wenig v. Glens Falls Indemnity Co., 294 N.Y. 195, 61 N.E.2d 442.

This interpretation is not in conflict with the general rule that it is contrary to public policy to insure against liability arising directly against the insured from his wilful wrong. Haser v. Maryland Casualty Co., 78 N.D. 893, 900, 53 N.W.2d 508; Sheehan v. Goriansky, 321 Mass. 200, 72 N.E.2d 538. There is no such policy against insurance to indemnify an insured against the consequences of a violation of law by others without his direction or participation, or against his own negligence, or the negligence of others. 44 C.J.S. Insurance § 242 b, pp. 1005, 1006.

Furthermore the coverage provided by the omnibus clause is reasonably regarded as intended to benefit the named insureds by broadening the protection they are given by the policy. Cal-Farm Insurance Company v. Boisseranc, 151 Cal.App.2d 775, 312 P.2d 401, 405 (1957). There is no doubt that if their son Roger were not thus afforded coverage his parents would not be excluded from protection under the policy by their son's willful act. The intended benefit of the omnibus clause would be very illusory if it were used to restrict the rights which the named insureds would otherwise have. Such an interpretation should not be adopted unless it is compelled by the clear language of the policy, which is not the case here.

The Trial Court properly ruled that as to the actions instituted against Thomas and Marjorie Lebrecht based on their negligent conduct coverage is not barred by the policy exclusion of injuries caused intentionally by the insured.

The company also maintains that the findings and rulings of the Trial Court could not be made on the record and that in any event they are insufficient as a matter of law to constitute an excuse for late notice. The Court ruled 'that the notice was sufficient under the conditions existing.' These conditions were found to be that the circumstances of the case were peculiar; that no demand was made prior to the bringing of the suits; and that the policyholders were not necessarily at fault in not anticipating these actions or in not realizing that there might be coverage. The Court also ruled 'that the petitioner has not been prejudiced in any way so far as it appears on the pleadings.'

The policy required that 'when an occurrence takes place, written notice shall be given by or on behalf of the Insured to this Company or any of its authorized agents as soon as practicable.' Such a policy requirement is commonly considered to require notice as soon as is reasonably possible...

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