Therrien v. Maryland Cas. Co.

• Decision Date: 06 November 1951
• Docket Number: No. 4054,4054
• Parties: THERRIEN et al. v. MARYLAND CAS. CO. et al.
• Court: New Hampshire Supreme Court

Page 179

84 A.2d 179

97 N.H. 180

THERRIEN et al. v. MARYLAND CAS. CO. et al.

No. 4054.

Supreme Court of New Hampshire.

Nov. 6, 1951.

Philip J. Biron, Manchester, for the plaintiffs.

Sulloway, Piper, Jones, Hollis & Godfrey, Irving H. Soden, Concord, for the defendants.

JOHNSTON, Chief Justice.

The plaintiffs concede that the statement which was filed with the Secretary of State on November 15, 1948, should have been filed on or before November 2, 1948, to comply with the statute. This provision of the statute for notice was a condition precedent to any obligation of the insurer. Poirier v. East Coast Realty Co., 84 N.H. 461, 152 A. 612. Moreover, there is no allegation in the petition that the plaintiffs were misled to their disadvantage, prejudice or injury or that the defendant surety company is estopped for any other alleged reason from claiming that the plaintiffs are barred by their failure to comply with the statutory condition.

The plaintiffs do claim that the defendant insurer waived the formality of notice by its conduct towards them. The question is whether they have alleged facts from which waiver could be found. In McCracken v. Car & Gen. Ins. Co., 94 N.H. 474, 476, 55 A.2d 894, 896, it was recognized that, in spite of assertions in some of the cases that as against insurance companies the doctrine of waiver was only another name for that of estoppel, 'Claims of 'actual waiver,' where elements of estoppel were not present, have received some consideration in our decisions.' See also, Sargent v. Canterbury Mut. Fire Ins. Co., 82 N.H. 489, 136 A. 124; Daley v. Met. Life Ins. Co., 81 N.H. 502, 503, 128 A. 531. The distinction between the two terms has been stated in 45 C.J.S., Insurance, § 673, pp. 612, 613 as follows: 'Technically and strictly speaking, a distinction exists between the terms 'waiver' and 'estoppel' in the law of insurance, and they are not interchangeable. A waiver is the voluntary or intentional abandonment or relinquishment of a known right, an election not to take advantage of a technical defense in the nature of a forfeiture, whereas the essential elements of estoppel include the ignorance of the party who invokes the estoppel, misleading representations or conduct on the part of the company, and an innocent and deleterious change of position in reliance on such representations or conduct. Waiver of a ground for forfeiture of an insurance policy is essentially unilateral in its character and results from some act or conduct of the company, no act of insured being necessary, whereas estoppel involves the acts and conduct of both parties. Waiver involves intent or consent, express or implied, on the part of the company, whereas an estoppel may arise where there is no intent to mislead.'

Ordinarily no consideration is needed to establish a waiver on the part of the insuring company. 'The majority of jurisdictions support the doctrine that no consideration is essential to support a waiver by an insurer; in fact, it has been a common holding that neither consideration nor any element of estoppel need be present in order for a waiver to exist.' 16 Appleman, Insurance Law and Practice 621, 622.

Waiver will not be found unless the insurer had full knowledge of all the material facts. 'As a general rule, in order to waive a policy provision or a forfeiture, there must be a prior knowledge of the circumstances, a waiver being the intentional relinquishment of a known right and requiring both knowledge of the existence of the right and an intention to relinquish it. Although the courts are quick to protect an insured or beneficiary, the element of knowledge is considered a fair element to impose for the protection of the insurer.' 16 Appleman, Insurance Law and Practice 613. Moreover, 'Such knowledge must be actual, rather than mere constructive notice.' Page 616. See also, State v. Belmestieri, 93 N.H. 262, 40 A.2d 836; Jean v. Association, 92 N.H. 514, 32 A.2d 821. In view of the provision of said ...