Sanborn v. Brunette

• Decision Date: 27 December 1943
• Citation: 315 Mass. 231,52 N.E.2d 384
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: NORMAN SANBORN v. AGNES S. BRUNETTE & another.

315 Mass. 231

52 N.E.2d 384

NORMAN SANBORN v. AGNES S. BRUNETTE & another.

Supreme Judicial Court of Massachusetts, Suffolk.

December 27, 1943

October 7, 1943.

Present: FIELD, C.

J., LUMMUS, DOLAN COX, & RONAN, JJ.

Insurance Disclaimer of liability, Motor vehicle liability insurance. Estoppel.

Evidence did not show to be plainly wrong a finding that, in an action for injuries sustained by a guest in an automobile, an attorney who was representing the defendant through employment by an insurance company covering the defendant's risk, had effectively disclaimed his company's liability when, upon the defendant's unequivocally testifying at a trial before an auditor that he had misstated his residence in procuring registration of his automobile and the insurance thereon, the attorney stated to the defendant that the company would not pay any judgment against him and that he had better get an attorney to represent him personally although the defendant then chose to have the attorney represent him personally and he had done so throughout the trial before the auditor and in reserving the defendant's rights to a jury trial after an adverse finding by the auditor, and no formal notification of the disclaimer was given to the defendant until about five months after the auditor's hearing.

A disclaimer of liability of an insurer under a guest occupancy coverage in a motor vehicle liability policy on the ground that the insured had intentionally misstated his residence in his application for registration and the insurance, not asserted until the defendant had unequivocally testified as to such false applications at a trial before an auditor, was seasonable although the insurer eight months before had prepared and caused the defendant to make oath to answers to interrogatories which definitely disclosed that the statement as to residence in the applications was untrue.

BILL IN EQUITY, filed in the Superior Court on November 26, 1941. The case was tried before Brogna, J.

W. Kopans, for the plaintiff. T. H. Mahony, for the defendant Standard Accident Insurance Company.

COX, J. The plaintiff recovered judgment against the defendant Brunette for bodily injuries received on August 27, 1939, while a guest occupant in an automobile owned and operated by that defendant, upon which the defendant Standard Accident Insurance Company, hereinafter called the company, had issued a policy of liability insurance. This suit is brought under G. L. (Ter. Ed.) c. 175, Section 113, and G. L. (Ter. Ed.) c 214, Section 3 (10), to reach and apply the alleged obligation of the company to Brunette in satisfaction of the plaintiff's judgment. The policy in question contained the so called "Guest Occupant" coverage. Inasmuch as the obligation, if any exists, which the plaintiff is seeking to reach arose under the guest occupant coverage and not under the Massachusetts compulsory insurance provisions, any defence which would be available to the company against Brunette is equally available against the plaintiff. G. L. (Ter. Ed.) c. 90, Section 1A, as amended by St. 1933, c. 372, Section 3; Section 34A, as amended by St. 1935, c. 459, Sections 1, 2. Birnbaum v. Pamoukis, 301 Mass. 559 , 560-561, and cases cited. The testimony is reported. It appears from the record that nineteen papers or documents were introduced in evidence, but they are not printed in the record, and it does not appear that any order was made with reference to them apart from the order that the testimony be reported. See G. L. (Ter. Ed.) c. 214, Section 24; Yoffa v. National Shawmut Bank, 288 Mass. 422 , 426-427, and cases cited. At the oral argument the plaintiff conceded that the company, on the facts, had a right to disclaim, if the disclaimer was seasonably made. The bill was taken pro confesso against Brunette, and the suit was heard on its merits before a judge of the Superior Court who made a report of material facts. A final decree was entered dismissing the bill, and the plaintiff appealed.

The judge found that the plaintiff was injured while riding as a guest in an automobile owned and operated by Brunette. Her insurance policy, issued by the company, covered guest occupancy. In her application for insurance and for registration she stated that she lived in Wellesley and that the automobile was garaged there, when in fact she lived in Boston and the automobile was garaged there. She misstated her residence intentionally. The declaration of the plaintiff in the action against Brunette contained a count for negligence, one for gross negligence, and one for illegal registration. An attorney designated by the company filed an appearance and answer, and the company undertook the complete defence of the action, prepared the answers to interrogatories propounded by the plaintiff, and on May 9, 1940, had Brunette sign them and caused her oath to be taken thereto. Her answers definitely disclosed that when she applied for registration she lived in Boston, and that the statement in her application that she lived in Wellesley was untrue. Trial was begun before an auditor on January 13, 1941, in the course of which the plaintiff introduced the interrogatories and answers relating to residence. After the plaintiff rested, the attorney representing the assured and who had been designated by the company called Brunette as a witness, and when she testified that at the time she applied for registration and thereafter she lived in Boston and not in Wellesley, he announced that on behalf of the company he disclaimed liability on the policy, and further stated that he was withdrawing as counsel, but in compliance with her request continued to represent her personally until the close of the trial before the auditor. The company had known the situation concerning Brunette's residence through her sworn answers to interrogatories for "eight months before it disclaimed," during which time it had retained full control of the defence. The judge ruled that the company disclaimed seasonably and was not estopped to set up the disclaimer in the suit at bar.

1. The plaintiff contends that the action of the attorney for the company before the auditor did not amount to a disclaimer, and that the finding of the judge that there was a disclaimer at that trial was plainly wrong. There was evidence that, at the trial before the auditor, Brunette testified that she had misstated her residence in her application for insurance, and that when she registered her automobile she was not living in Wellesley. In her application for registration dated January 1, 1939, she gave Wellesley as her Massachusetts residential address and stated that the automobile was garaged there. When Brunette testified that she had misstated her residence in her application, Mr. Coffin, the attorney designated by the company to defend the action, asked her: "Have you a personal attorney who represents your interest?" Brunette replied: "No." Mr. Coffin then said "I give you notice that you had better get one because I am telling you here that our company will not pay any judgment rendered against you. I will ask for a continuance now, if you want it, and you may have whatever opportunity you wish to get counsel to represent you. . . . Do you desire time to get somebody to represent you?" Brunette replied: "I do not know." Mr. Coffin then asked: "Do you desire me to finish this trial?" Brunette replied: "Is that the best way, or what." Mr. Coffin said: "I do not know. I think you are entitled to make your own choice." The auditor then said: "We will take a recess. I will see counsel." It was agreed in the suit...