Travelers Ins. Co. v. Greenough

• Court: Supreme Court of New Hampshire
• Citation: 190 A. 129
• Parties: TRAVELERS INS. CO. v. GREENOUGH et al.
• Decision Date: 02 February 1937

190 A. 129

TRAVELERS INS. CO.

v. GREENOUGH et al.

Supreme Court of New Hampshire. Hillsborough.

Feb. 2, 1937.

Exceptions from Superior Court, Hillsborough County; Burque, Judge.

Declaratory judgment action by the Travelers Insurance Company against Richard F. Greenough and others. Certain rulings were made which were adverse to the plaintiff, and the plaintiff excepts.

Judgment for the plaintiff.

Petition, for declaratory judgment, brought by an insurer to determine whether its motor vehicle liability policy furnishes coverage for a certain accident. Actions at law for injuries arising out of the accident are pending, and the insurer seeks adjudication of the question of coverage in order that it may know whether it has the duty to defend the actions, the policy requiring it to do so if coverage for the accident exists. Its liability depends upon the issue whether the person driving the vehicle at the time of the accident was using it with the named assured's consent. On trial of the issue the court found the evidence evenly balanced, and, ruling that the burden of proof rested upon the plaintiff insurer, held that it indemnified against liability for the accident. A further holding of liability was made "inasmuch as it may be a matter of law." To these rulings, the plaintiff excepted.

Wyman, Starr, Booth, Wadleigh & Langdell and Robert P. Booth, all of Manchester, for plaintiff.

John J. Sheehan, of Manchester, for certain defendants.

ALLEN, Chief Justice.

This clause is a part of the policy: "The coverage provided herein to a person responsible for the operation of the named Assured's motor vehicle with his express or implied consent is extended to uses authorized by such person whether or not the particular use was authorized by the named Assured."

The clause did not promise indemnity for a use unpermitted by the named assured. No action on the policy could be successfully maintained without proof of a permitted use. Raymond v. Great American Indemnity Company, 86 N.H. 93, 163 A. 713. A use not consented to is uninsured equally with a forbidden use. By no fair construction of the clause is unauthorized use insured. Uses authorized by express or implied consent, whether or not specified, are the limits of coverage. The phrase relating to a particular use not "authorized" by the named assured signifies an unspecified use findably within an authorized use. The phrase might be more clearly worded to show the meaning, but it is the only reasonable meaning. Any other construction would lead to a result of coverage for any unpermitted use by one entitled to use for some purposes. No policyholder would reasonably believe he had coverage to such an extent. And no presumption arises that permitted use for certain purposes includes use for other purposes not incidental to those specified or fairly to be found to be within the scope of the permission.

In respect to the burden of proof, "When an insurer desires to raise the question whether the liability charged is one covered by the policy, it should be done seasonably, and, in any event, before the plaintiff has been prejudiced by the delay. * * * Ordinarily, and in the absence of agreement of the parties, the issue is one calling for preliminary presentation, so that the insurer's right or duty to defend the action for negligence may be first determined." Sauriolle v. O'Gorman, 86 N.H. 39, 49, 163 A. 717, 723. "The Declaratory Judgment Act (Laws 1929, c 86) provides a convenient procedure for determining such a question." American, etc., Co. v. Central Garage, 86 N.H. 362, 364, 169 A. 121, 122.

The effect of the act "is simply to make a controversy over a legal or equitable right or title justiciable at an earlier stage of the controversy than that which gave rise to a cause of action at common law, or to enable the normal defendant to institute the proceedings. It makes no difference whether the claim be in positive or negative form, or whether it involves issues of fact, * * * Claim of legal or equitable right on the one hand and its denial on...