Royal Globe Ins. Companies v. Graf, 81-368
| Decision Date | 08 December 1982 |
| Docket Number | No. 81-368,81-368 |
| Citation | 122 N.H. 978,453 A.2d 1262 |
| Parties | ROYAL GLOBE INSURANCE COMPANIES v. John A. GRAF, Adm'r et al. |
| Court | New Hampshire Supreme Court |
Devine, Millimet, Stahl & Branch P.A., Manchester (Andrew D. Dunn, Manchester, on the brief and orally), for plaintiff.
Sheehan, Phinney, Bass & Green P.A., Manchester (Michael C. Harvell, Manchester, on the brief and orally), for defendant Commercial Union Assur. Co.
This is an appeal of a declaratory judgment action under RSA 491:22 brought by Royal Globe Insurance Companies (Royal Globe) to determine coverage on a wrongful death action. The Master's (Perkins, J., Ret.) report approved by the Trial Court (Bean, J.) found primary coverage under the defendant Commercial Union Assurance Company (Commercial Union) policy and ordered Commercial Union to provide a defense and satisfy any judgment rendered in favor of John A. Graf, administrator, against Process Engineering, Inc. We affirm in part and reverse in part.
On April 27, 1977, Sylvester Cecil was fatally injured on the premises of Process Engineering, Inc., in Plaistow, New Hampshire while in its employ. John A. Graf was appointed administrator of the decedent's estate and brought a wrongful death action against Process Engineering, Inc. The writ was dated April 17, 1978.
In Ransmeier v. Camp Cody, Inc., 117 N.H. 736, 378 A.2d 752 (1977), a wrongful death action brought by an administrator was not barred by the version of the workmen's compensation statute in effect prior to June 27, 1978, RSA 281:12, which presumed the waiver of other legal remedies (e.g., a wrongful death action) because that statute applied to only the employee, not to his spouse or legal representative. Although a 1978 amendment to the statute now bars actions by an employee's spouse and legal representative, see RSA 281:12 (Supp.1981), the action brought by Graf is not barred because there is no manifestation of legislative intent to apply the amendment retroactively. See Cummings v. Bostwick, 481 F.Supp. 1251, 1254 (D.N.H.1980).
At the time of the accident, Process Engineering, Inc., was the named insured in two policies of insurance, a general liability policy issued by Royal Globe and an aggregate excess workmen's compensation and employer's liability policy issued by Commercial Union. Commercial Union's policy provided, in part, that Process Engineering, Inc., was a self-insurer up to $153,000 and that the coverage limit was $2,000,000. Both insurance companies claim that the other's policy provides primary coverage based, in part, upon certain exclusions in the respective policies.
Central to this controversy are the exclusionary provisions in each insurance policy. First, the master found that Commercial Union's employer's liability policy exempting coverage for "any obligation for which the reinsured [self-insurer] may be held liable under the workmen's compensation ... law ... or under any similar law," was inapplicable because this wrongful death action by the administrator did not arise under the workmen's compensation law. We agree. The above-mentioned exclusion is barred, because this cause of action does not arise under the workmen's compensation law and, therefore, the exclusion does not operate on these facts to relieve Commercial Union from its obligation.
The insured employer also had a Royal Globe policy in effect. The policy was a "Comprehensive General Liability Insurance" policy, obligating Royal Globe to pay for damages caused by bodily injury "to which the insurance applies ...." There are two relevant exclusions to this policy. Section (j) provides an exclusion for any "bodily injury to any employee of the insured arising...
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