Royal Globe Ins. Companies v. Fletcher
| Decision Date | 28 March 1983 |
| Docket Number | 81-289,Nos. 81-272,s. 81-272 |
| Citation | 123 N.H. 189,459 A.2d 255 |
| Parties | ROYAL GLOBE INSURANCE COMPANIES v. Philip L. FLETCHER et al. |
| Court | New Hampshire Supreme Court |
Augustine J. McDonough P.A., Manchester (Michael B. O'Shaughnessy, Manchester, on brief and orally, and Mark L. Mallory, Manchester, on brief), for Royal Globe Ins. Co.
Brown & Nixon P.A., Manchester (Frank E. Kenison, Manchester, on brief and orally), for Philip L. Fletcher and Wilma L. Fletcher.
Brighton, Fernald, Taft & Hampsey P.A., Peterborough (John R. Falby, Jr., Peterborough, on brief and orally), for Concord General Mut. Ins. Co.
These appeals involve a petition for declaratory judgment (RSA 491:22) by which the plaintiff, Royal Globe Insurance Companies, seeks a judicial determination that Concord General Mutual Insurance Company, rather than it, is required to provide coverage for a 1974 accident. The Trial Court (Contas, J.) entered a decree under which both companies would have to afford coverage, and they appealed. We affirm that portion of the decree requiring Royal Globe to provide coverage and reverse that portion requiring Concord General to provide coverage.
This case arises out of an accident in 1974 in which Philip L. Fletcher, an employee of Cheshire Landscaping Service Inc., of Keene was injured by a tractor/backhoe driven by Albert F. Hurd, a fellow employee. Cheshire Landscaping was insured by Royal Globe. Mr. Hurd was insured under two Concord General Mutual Insurance Company policies. John Kunze, president of Cheshire Landscaping, was supervising the job site at the time of the accident and was named, along with Mr. Hurd, in the underlying action filed by Philip and Wilma Fletcher in 1978.
The parties' agreed statement of facts and the language of the insurance policies at issue form the basis for this appeal. On November 13, 1974, Kunze, Hurd and Fletcher were working at the G.T.E. Sylvania plant in Hillsborough on a Cheshire Landscaping job. The injuries occurred when a tractor with backhoe attachment, operated by Hurd and owned by Cheshire Landscaping, struck Fletcher while he was directing Hurd from the ground. It is agreed that Kunze was in charge of supervising the job site when the accident occurred. At the time of the accident, Cheshire Landscaping had in effect two insurance policies issued by Royal Globe: A workmen's compensation and employer's liability policy and a comprehensive general liability and special multi-peril policy with a motor vehicle liability endorsement bringing it within the then-controlling Financial Responsibility Act, Laws 1971, 456:1 (now codified at RSA 259:61, I).
The trial court ruled, and no party now disputes, that Royal Globe had no liability under the workmen's compensation and employer's liability policy. The court determined, however, that Royal Globe was obligated to provide coverage for Kunze and Hurd under the comprehensive general liability and multi-peril policy.
Section I, Coverage C of that policy provides that Royal Globe "will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury ... arising out of ... all operations necessary or incidental to the business of the named insured...." Section II(c) of the policy states that this coverage is provided not only for the named insured, Cheshire Landscaping, but also for "any executive officer ... thereof while acting within the scope of his duties as such." Although Royal Globe acknowledges that Kunze was an executive officer of the corporation, Royal Globe maintains that at the time of the accident, he was not acting within the scope of his duties as such. Royal Globe therefore disputes the trial court's ruling that it must provide coverage to Kunze under this section of the contract.
The policy does not define "executive officer." See Young v. N.H. Indem. Co., Inc., 120 N.H. 882, 883, 424 A.2d 205, 206 (1980). A review of the parties' agreed facts and the evidence at trial, however, fully supports the trial court's ruling that Kunze was acting within the scope of his duties as an executive officer when the accident occurred.
After becoming an officer and president of Cheshire Landscaping in 1973, Kunze assumed supervisory and managerial functions. At trial, Mr. Kunze stated that he was in fact the company's only supervisor and that, at the time of the accident in question, he was in charge of the job site. Mr. and Mrs. Fletcher alleged in their underlying action that Kunze breached precisely this supervisory duty by failing to ensure for Fletcher's safety on the job site. See Young v. N.H. Indem. Co., Inc., 120 N.H. at 883, 424 A.2d at 206; Stevens v. Lewis, 118 N.H. 367, 369, 387 A.2d 637, 638 (1978).
We agree with the trial court that this case is analogous to the situation in Young, where we held that a policy provision identical to the one at hand, covered a fellow employee who was alleged to have breached his duty as plant manager to provide a safe workplace to the other employees. The same result is appropriate in the present case, where the party to be covered is the president of a small company whose regular, acknowledged duties since becoming president have included his presence, involvement at and supervision of company work sites.
We note, in addition, that as in Young, the term "executive officer" is ambiguous, and is therefore to be construed against the insurer. Id. at 883-84, 424 A.2d at 206-07; see Trombly v. Blue Cross/Blue Shield, 120 N.H. 764, 772, 423 A.2d 980, 984 (1980).
We next turn to the trial court's ruling that Royal Globe must provide coverage to Mr. Hurd for up to $20,000, the statutory limit then provided under our Financial Responsibility Act, Laws 456:1. As a preliminary matter, we agree with the trial court's conclusion, barely disputed on appeal, that the tractor with backhoe attachment is a "motor vehicle" for the purposes of the Financial Responsibility Act. See American Mut. etc. Ins. Co. v. Chaput, 95 N.H. 200, 204, 60 A.2d 118, 121 (1948). Royal Globe nonetheless contends that it has no liability in this case because Fletcher is not a person covered by the terms of the...
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Concord General Mut. Ins. Co. v. McCarty
...of a family automobile policy." We agree. The excavator in this case is unlike the motor vehicle in Royal Globe Insurance Companies v. Fletcher, 123 N.H. 189, 192, 459 A.2d 255, 258 (1983) (tractor with backhoe attachment was a "motor vehicle"). The excavator here is also unlike the motor v......