Shelby Mut. Ins. Co. v. Williams

• Decision Date: 19 November 1964
• Citation: 205 A.2d 372,152 Conn. 178
• Court: Connecticut Supreme Court
• Parties: The SHELBY MUTUAL INSURANCE COMPANY v. Wilhelmina A. WILLIAMS et al. Supreme Court of Errors of Connecticut

Page 372

205 A.2d 372

152 Conn. 178

The SHELBY MUTUAL INSURANCE COMPANY v. Wilhelmina A. WILLIAMS et al.

Supreme Court of Errors of Connecticut.

Nov. 19, 1964.

Sidney Axelrod, New London, for appellant (defendant Comrie).

Hyman Wilensky, New London, for appellants (defendants Williams).

Valentine J. Sacco, Hartford, with whom was Robert P. Volpe, Hartford, for appellee (plaintiff).

Before KING, C. J., and MURPHY, ALCORN, COMLEY and SHANNON, JJ.

The objective of this action is to determine whether the plaintiff must defend the defendants Wilhelmina A. and Raymond E. Williams, and pay any judgment which might be rendered against them, in an action arising out of an automobile accident. A confusing method of attaining that objective has been resorted to. It is undisputed that the plaintiff had issued to Wilhelmina a liability insurance policy covering an automobile owned by her. The policy insured her, any resident of her household and any person using the automobile with her knowledge and permission against liability for claims for bodily injury and property damage. The policy contained the following clauses as a condition of the plaintiff's liability: '3. Notice: In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable. In the event of theft the insured shall also promptly notify the police. If claim is made or suit is brought against the insured, he shall immediately forward to the company every demand, notice, summons or other process received by him or his representative. * * * 5. Assistance and Cooperation of the Insured * * * The insured shall not, except at his own cost, voluntarily make payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident.' On January 1, 1958, Raymond E. Williams Wilhelmina's son, who resided with her, was operating the automobile with her knowledge and permission. The defendant Raymond A. Comrie was a passenger in the automobile.

The plaintiff brought this action for a declaratory judgment, alleging the foregoing facts, which were admitted, and further alleging that Raymond E. Williams operated the car on a curve so that it skided and turned over, causing Comrie to be thrown out and injured; that on January 1, 1958, Raymond E. Williams reported the accident to the Connecticut motor vehicle department on its standard form, including a report of Comrie's injuries; that Raymond E. Williams paid a $12 balance due on Comrie's hospital bill and paid his medical bill of $10 without the plaintiff's knowledge or consent; that on March 27, 1958, Comrie's attorney, by letter to Wilhelmina, made a claim for damages for the injuries sustained by Comrie; that Raymond E. Williams first notified the plaintiff or its agent of the accident and its details on April 2, 1958, and that the plaintiff believed and therefore averred that Comrie intended to sue Wilhelmina and Raymond E. Williams to recover damages for his injuries and, if he recovered a judgment, to sue the plaintiff to recover under its policy of insurance.

The action named Wilhelmina and Raymond E. Williams as defendants and sought a declaratory judgment determining whether they had breached their obligations under the quoted clauses of the policy; whether the plaintiff had the legal duty or obligation to provide a defense in any action which might be brought by Comrie or to pay any judgment or costs which Comrie might recover against the Williams' or either of them; and whether the plaintiff was entitled to disclaim coverage under the policy because of a late notice of the accident and the payments made by Raymond E. Williams to Comrie.

After this action was commenced, Comrie brought suit against Wilhelmina and Raymond E. Williams for damages for injuries claimed to have been sustained in the accident, whereupon the plaintiff amended its complaint to allege that fact and to reiterate its belief that Comrie, if he obtained a judgment, would bring an action against the plaintiff to recover under its policy of insurance. Comrie was then joined as a party defendant in the present action.

The defendants did not, as they might have done, object that the case was not properly one for a declaratory judgment on the ground that the plaintiff should be left to other legal remedy. Practice Book, § 309(c); Redmond v. Matthies, 149 Conn. 423, 426, 180 A.2d 639. If the plaintiff considered itself relieved, by the insured's conduct, of the duty of defending an action under its policy, it could refuse to defend and have the present issues adjudicated in a defense to an action by the insured; or it could obtain the same adjudication in an action by the insured's judgment creditor under § 38-175 of the General Statutes. The defendants, however, joined issue and put the plaintiff to its proof on all of its allegations concerning the circumstances of the accident and the events which were alleged to have followed. Confusion was then increased when the defendants, or one of them, the specific responsibility not being clear from the record, claimed the case to a jury. The plaintiff moved to strike the case from the jury docket, but the court denied the motion under what was then Practice Book, 1951, § 278(f), now Practice Book, 1963, § 310(f).

The parties then went to trial on the disputed issues, which consisted of all of the allegations of the complaint except the undisputed ones relating to the existence and terms of the policy of insurance. The plaintiff claimed to have proved the disputed allegations of its complaint, and, at the conclusion of the trial, the jury were asked to answer two interrogatories, namely: '(1) Was there a failure on the part of the defendants, Wilhelmina A. and Raymond E. Williams, to comply with the provisions of paragraph 3 of the policy as to notice? (2) Was there a failure on the part of the defendants, Wilhelmina A. and Raymond E. Williams to comply with the provisions of paragraph 5 of the policy as to assuming any obligation or incurring any expense?' Since none of the parties objected to this procedure, it is to be presumed that they assented to it. Freedman v. New York,...