183 A. 403 | Conn. | 1936
Lead Opinion
The plaintiff, a resident of Massachusetts, held a policy issued by the defendant insuring against loss by reason of liability arising out of the operation of an automobile owned by the plaintiff, *647 which policy was in force on July 18th, 1934. At about three o'clock in the morning of that day the plaintiff, while driving through New London on a business trip from Taunton, Massachusetts, to New York City, picked up a man named Snellman who asked for a ride to Waterford but, before they reached that place, on learning that the plaintiff was going to New York, said that he would continue on with him to the Bronx. Plaintiff spoke of being sleepy, whereupon Snellman informed him that he could operate the car and asked to be allowed to do so. The plaintiff at first declined the offer but later allowed Snellman to get behind the wheel and, after cautioning him to drive carefully and slowly and watching him drive for a few minutes, went to sleep. While Snellman was operating the car through Fairfield, and while the plaintiff was asleep, he negligently caused it to collide with a truck and as a result the plaintiff was severely injured. Subsequently the plaintiff instituted an action against Snellman in the Superior Court in New London County to recover for his injuries and obtained judgment by default for $4500 damages and costs. The defendant refused to pay this judgment and the plaintiff brought the present action. Upon the facts found, including the foregoing, the trial court concluded that liability of Snellman to the plaintiff was included in and covered by the policy, and rendered judgment, accordingly, in favor of the plaintiff.
It cannot be accurately said, as the appellant requests to have added to the finding, that Snellman in operating the car was "at all times under the direction and control of the plaintiff." The fact that the latter is found to have been asleep negatives such actual control of the management of the car as that finding would import. Reetz v. Mansfield,
The so-called "Insuring Clause" of the policy issued by the defendant to the plaintiff provides that the insurer, in consideration of the premium, "agrees to indemnify" the named insured (the plaintiff) "and any person responsible for the operation of the named insured's motor vehicle or trailer described herein with his express or implied consent against loss by reason of the liability to pay damages to others for bodily injuries . . . sustained during the term of this policy by any person other than employees of the insured or of such other person responsible as aforesaid who are entitled to payments or benefits under [the Workmen's Compensation Statutes, General Laws of Massachusetts, Chap. 152], and arising out of the ownership, operation, maintenance, control or use upon the ways of [Massachusetts] of such motor vehicle or trailer." As the plaintiff is a resident of Massachusetts and the defendant insurer a Massachusetts corporation and the policy was issued and accepted in that State, the construction and effect of that clause are to be determined by the law of Massachusetts. New York *649
Life Ins. Co. v. Ragas,
These provisions therein clearly were intended to, and do literally, conform to the requirement of the Massachusetts Compulsory Motor Vehicle Liability Insurance Law (General Laws [Ter. Ed.] Vol. 1, Chap. 90, 34A et seq. and amendments) that the policy provide "indemnity for or protection to the insured and any person responsible for the operation of the insured's motor vehicle with his express or implied consent against loss by reason of the liability to pay damages to others for bodily injuries. . . ." This statutory provision has been construed by the Supreme Judicial Court of Massachusetts, since the instant case was decided in the Superior Court, in MacBey v. Hartford Accident Indemnity Co. (Mass.)
Although in that case it was the statute which was being directly construed instead of the conforming policy provision itself, and notwithstanding differences in the applicable rules of construction, this decision is manifestly at least very persuasive of the meaning to be accorded to the insuring clause of the policy now under consideration; clearly it was not only inserted to comply with the statute but also conforms to it with verbal exactitude. Application of the rules appropriate to the construction of insurance contracts develops no sound reason why this clause should or may be given a different meaning and effect than that attributed to the statute which it follows. In Boudreau v. Maryland Casualty Co.,
We find nothing in the "Extra-territorial Coverage . . . Endorsement" which affects the question now before us. Under the original insuring clause the availability of indemnity to others than the named insured was limited to persons "responsible for the operation of the named insured's motor vehicle . . . with his express or implied consent." The only effect of the indorsement in this aspect of the contract was to include "any person or persons while riding in or legally operating" the motor vehicle and "any person, firm or corporation legally responsible for the operation thereof provided such use or operation is with the *651
permission" therein specified. The limitation of the indemnity to liability to pay damages "to others" (than those specified as entitled to the indemnity) contained in the insuring clause is not extended or changed by any provision of the indorsement. Also the further provision therein that "insurance payable hereunder shall be applied first to the protection of the named insured, and the remainder, if any, to the protection of other persons entitled to insurance under the provisions and conditions of this clause, as the named insured shall in writing direct," points significantly to the creation of a class, composed of the named insured and the other persons entitled to indemnity against loss by reason of liability to pay damages to persons "other" than those so provided with indemnity. In Sheldon v. Bennett,
Additional considerations point in the same direction. As in the construction of a statute the intention of the Legislature is sought, so in the construction of an insurance policy ascertainment of the true intent of the parties is the paramount object. Shaw v. John Hancock Mutual Life Ins. Co.,
The effect which the plaintiff seeks to give to this policy is foreign to the object and common conception of the scope of public liability insurance which, as concerns the assured, is third party coverage, that is, insurance against the liability of the assured for injury which has been sustained by a third person by negligence in the operation of the automobile. Simpson, Automobile Insurance (2d Ed.) p. 297; Richards, Insurance (4th Ed.) p. 885. There is a significant paucity of cases in which the named assured has claimed a right of recourse to such insurance for damages for injuries to himself although the policy agreed to indemnify against loss through liability for damages on account of injuries "to any person or persons" as distinguished from such damages "to others" as in the present instance. The MacBey case, supra, is the only one involving the latter phraseology which has come to our notice. Recovery by an assured in the few cases in which it has been allowed is clearly attributable to *653
the broader coverage construed to be afforded by the policy provision above mentioned. Howe v. Howe (N.H.)
To accord to this policy the effect which the plaintiff claims would be to virtually insert into it another contract, distinct from public liability coverage within the scope of the policy and amounting to personal accident insurance against bodily injuries suffered by the assured. There is nothing to indicate any intention of either party to combine, in this policy, these two kinds of coverage. A public liability policy is not a policy of accident insurance indemnifying the assured against injuries suffered by himself in an accident. By its definite terms it insured against claims for damages for which he or others named in the policy might become liable. American Automobile Ins. Co. v. Cone, 257 S.W. (Tex.Civ.App.) 961, 964; Bachman v. Independence Indemnity Co.,
In the instant case, we hold that the policy, as we construe it, does not support the vital conclusion of the trial court that the agreement of the defendant to indemnify Snellman included liability to pay damages to the plaintiff.
There is error; the judgment is set aside and the case is remanded to the Superior Court with direction to render judgment for the defendant.
In this opinion BANKS and AVERY, Js., concurred.
Concurrence Opinion
I agree with the statement in the majority opinion that the construction and effect of the policy upon which this action is based as regards the issues involved in this appeal are to be determined in accordance with the law of Massachusetts and that, while the decision of this action must be based upon the terms of the indorsement, constituting as it does a distinct policy applicable to matters and territory not covered by the policy to which it is attached, the opinion of the Supreme Judicial Court of Massachusetts in the MacBey case, referred to in the majority opinion, sufficiently evidences the construction which that court would give to the provisions of the indorsement were the question there presented. I therefore concur in the result. I cannot, however, agree with so much of the majority opinion as indicates that, if the question involved were presented to us under such circumstances that our decision would not be controlled by the law of another jurisdiction, a like result should be reached.
The policy is essentially one to indemnify the insured against liability for loss. Its meaning and effect should not be determined upon the basis of the right *655 of the person injured in the course of the operation of the automobile to recover from the company but upon the basis of the right of the insured to be protected from loss. In the policy the company has agreed, voluntarily and no doubt upon an adequate consideration, to extend its protection not only to the named insured but also to any person operating the car with permission or consent in accordance with its provisions. The fact that the named insured happens to be the one to whom a liability resulting from the operation of the car by someone other than himself is incurred, should not derogate from the obligation which the company has assumed to protect the latter from liability. Suppose the person operating the car in this instance had paid the judgment secured by the plaintiff against him, is it possible that he would be denied a right to recover from the company by way of indemnity the amount so paid? Certainly the primary and underlying purpose of the policy could only be carried out by furnishing such indemnity. Nor is there anything in its terms which militates against such a result. The policy in the protection it affords has a double aspect; it protects the named insured when he is operating the car; and it no less protects any other person while operating it with the consent and permission specified in the policy. The word "others" in the clause under which the company agrees to indemnify the named insured or any person operating the car with his consent "against loss by reason of the liability to pay damages to others" means persons other than the one invoking the protection of the policy, whether it be the named insured or one who is operating the car with consent.
While the indorsement expressly eliminates the definition in the policy whereby the word "insured" as used in it is defined, unless qualified, to include any *656
person entitled to protection under its provisions, that is a necessary result from the very terms of the policy; such person becomes in fact, by the extension of the policy to include protection to him, the "insured" as much as though he were named in it; and this is recognized in the indorsement, in the incorporation as a part of it of provisions in the policy wherein the word "insured" is used when it is intended to refer to either while the words "named insured" are used when only the person named is intended, and in the use of the words "named insured" in the added provisions contained in the indorsement. If the provisions of the policy be read with this in mind, there will be found nothing in them which does not fully accord with the conclusion that one operating the car with the consent or permission specified in the policy is entitled to indemnity against liability within its coverage for damage suffered by the named insured. If that is so, the named insured would be entitled to maintain his action against the insurer to enforce a judgment secured against the operator of the car. Guerin v. Indemnity Ins. Co.,
In this opinion HAINES, J., concurred.
