Villars v. City of Portsmouth
| Decision Date | 26 March 1957 |
| Citation | 129 A.2d 914,100 N.H. 453 |
| Parties | Paul E. VILLARS, by his father and next friend, v. CITY OF PORTSMOUTH and American Fidelity Insurance Company. |
| Court | New Hampshire Supreme Court |
William H. Sleeper and Wayne J. Mullavey, Exeter, for plaintiff.
Thomas J. Flynn, Jr., City Solicitor, Portsmouth, for City of Portsmouth.
Waldron, Boynton & Waldron, Portsmouth, Wyman B. Boynton, Portsmouth, for American Fidelity Insurance Co.
The plaintiff states on information and belief that the city has a liability policy with the defendant company which affords coverage to him individually and to his minor son. He then alleges that his counsel cannot 'advise as to coverage until he has had an opportunity to examine the master policy of said insurance company which has now been located in the possession of the City Clerk * * *.' Our declaratory judgment statute, RSA 491:22, which the plaintiff would invoke, reads as follows: 'Any person claiming a present legal or equitable right or title may maintain a petition against any person claiming adversely to such right or title, to determine the question as between the parties, and the court's judgment or decree thereon shall be conclusive.' It appears that the plaintiff claims a present right to inspect the liability policies, if any, held by the city, which right the city denies.
A justiciable controversy is presented by the plaintiff's claim of a right to inspect the policies of insurance held by the city, and by the city's denial of that right through its city clerk and through the motion filed herein, alleging that the plaintiff is not entitled to be informed as to the contents of the policies. With respect to this controversy the rights of the parties were properly determinable on petition for declaratory judgment.
While under common law the city would not be liable to the plaintiff, Cushman v. Grafton County, 97 N.H. 32, 79 A.2d 630, under RSA 412:3, if a policy of liability insurance has been procured by the city liability may exist up to its limits. Adverse claims are involved (see 1 Anderson, Declaratory Judgments (2nd Ed.) § 32) and as between the plaintiff and the city, the parties may fairly be said to be 'in gear.' Borchard, Declaratory Judgments, p. 36. In this situation our declaratory judgment act is applicable. Faulkner v. Keene, 85 N.H. 147, 154-155, 155 A. 195. The order of the Trial Court for production of the policies was an adjudication that the plaintiff was entitled to inspect them. There was no error in the entry of this order. 5...
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