Trepanier v. Mercantile Ins. Co. of Am.
| Decision Date | 05 May 1936 |
| Parties | TREPANIER v. MERCANTILE INS. CO. OF AMERICA. SAME v. ROCHESTER AMERICAN INS. CO. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Belknap County; Burque, Judge.
Action by Louise Trepanier against the Mercantile Insurance Company of America, and against the Rochester American Insurance Company.
Verdicts for plaintiff, and case transferred on defendants' exceptions.
New trial.
Actions on insurance policies for a fire loss. They were tried together by a jury, and verdicts were returned for the plaintiff.
The insured property was in Loudon. The Rochester policy originally insured the plaintiff as owner. On October 11, 1933, she conveyed the premises where the insured property was situated under a sale, and the policy was transferred to the purchaser with a loss payable to her as mortgagee. At the time of this transfer the Mercantile policy was issued with a loss payable as provided in the transfer of the Rochester policy. By agreement with the purchaser the plaintiff remained in possession of the premises as a tenant at will after their conveyance until the fire on November 1, 1933. The premises had been her home, but it was in issue whether she had dwelt there at all during a period exceeding thirty days immediately preceding the fire.
Both policies were of the local standard form and contained the union mortgage clause. Other clauses provided that the policies were to be inoperative "if the premises * * * shall become vacant by the removal of the owner or occupant and so remain for more than 30 days" without the insurer's assent, and if, without such assent, "the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency or consent of the insured, be so altered as to cause an increase of such risk."
Both insurers in defense claimed that the plaintiff procured the fire to be set and increased the risk. An additional defense to the Rochester policy was its avoidance under the vacancy clause.
Exceptions were taken to the denial of motions for directed verdicts. There were also exceptions to the charge which, with further facts, are stated in the opinion.
Tilton & Tilton, of Laconia, for plaintiff.
Thorp & Branch and F. W. Branch, of Manchester, for defendants.
The policies are construed to exclude vacancy as an increase of risk within the application of the clause relative to an increase. The clause relating to vacancy is specific in respect to the period required for it to be effective as an avoidance of the policy. If the period has run, the insurance is suspended. No inquiry whether the risk has been thereby increased needs to be made. If the period has not run, the only reasonable view is that the insurance is not affected. In other words, the policy treats vacancy independently of risk. If the vacancy does not exceed the period, the policy continues in force.
It follows that there was properly no defense to the Mercantile policy, in force less than the permitted vacancy period at the time of the fire, except on the issue of procuring the fire to be set.
As to the Rochester policy, the court instructed the jury that a difference between unoccupancy as meaning no use by actual presence and vacancy as meaning no use for any purpose was to be recognized, and that unoccupancy must either amount to vacancy or result in a material increase of risk to be ground for avoidance. The language of the policy expresses no such narrowing of unoccupancy. "Removal" of the occupant, to "remain" for over thirty days, is its stated definition of vacancy. Whether the risk is increased, the property abandoned with no purpose to return to it, or its contents left in it upon removal, are all irrelevant matters. If it is closed so as to be unoccupied, the property is vacant within the terms of the policy. Whether the plaintiff had been living at the premises for any part of the time during the thirty days immediately preceding the fire, is the issue. Making the premises her residence or place of abode by occasionally thus using them would be sufficient to interrupt and negative vacancy, although she was elsewhere most of the time.
The distinction in Stone v. Insurance Co., 69 N.H. 438, 45 A. 235, between vacancy through removal and unoccupancy through absence is not considered one which the policy makes. Unoccupancy...
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