Phoenix Indem. Co. v. Conwell
| Decision Date | 03 September 1946 |
| Citation | 47 A.2d 827 |
| Parties | PHOENIX INDEMNITY CO. v. CONWELL et al. |
| Court | New Hampshire Supreme Court |
OPINION TEXT STARTS HERE
Reserved and transferred from Superior Court, Rockingham County; Goodnow, Judge.
Petition by Phoenix Indemnity Company against Edward J. Conwell and another for a declaratory judgment to determine the rights of the parties under an automobile liability policy. Judgment for plaintiff and all questions of law raised by defendants' exceptions to denial of requests for findings and rulings and to decree of the court reserved and transferred.
Judgment for defendants.
Petition, for a declaratory judgment, to determine the rights of the parties under a motor vehicle liability policy. December 12, 1944, the plaintiff issued a policy to the defendant Edward J. Conwell for a period of one year on a 1934 Ford sedan. January 16, 1945, Conwell sold the said sedan and did not purchase another motor vehicle. January 22, 1945, he was involved in an accident in Portsmouth while operating an automobile not owned in whole or in part by him. As a result of said accident, the defendant Ruth M. Bigelow, administratrix of the estate of Carleton E. Bigelow, brought suit against the defendant Edward J. Conwell.
Trial by the Court who rendered judgment for the plaintiff. The defendants excepted to the denial of certain requests for findings and rulings and to the decree of the Court. All questions of law raised by these exceptions have been reserved and transferred.
Hughes & Burns and Walter A. Calderwood, all of Dover, for plaintiff.
Frank E. Blackburn, of Dover, for defendant Edward J. Conwell.
Arthur J. Reinhart, of Portsmouth, for defendant administratrix.
The defendants claim coverage by reason of the wording of R.L. c. 122, § 1, par. VII, cl. (b) defining the term, motor vehicle liability policy, so that it provides further for protection to the named insured for liability ‘due to the operation of any motor vehicle * * * not owned in whole or in part by such insured, * * *.’
Similar language is found in the wording of the New Hampshire statutory motor vehicle liability policy endorsement attached to the policy of the defendant Conwell, although this and other language of the policy (Article VIII) attempt to limit the coverage to the period while the insured is the owner of the described automobile.
Although the insured had ceased to be the owner of the automobile described in the policy, it is said that coverage is established by virtue of paragraph III of section 16 of chapter 122 of the Revised Laws, which is a required provision of every motor vehicle liability policy written in New Hampshire with respect to accidents that occur in this state. This paragraph III is as follows: ‘With respect to accidents which occur within this state and subject to the minimum limits of liability validly made under the authority of paragraph VII of section 1 of this chapter the policy is to be interpreted with reference hereto and the liability of the company under the policy shall thereby become absolute upon the occurrence of such an accident; no statement made by the insured or on his behalf, and no violation of exclusions, conditions, other terms, or language contained in the policy, and no unauthorized or unlawful use of the vehicle except as provided in paragraph VI of this section, whether or not a premium charge has been made...
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