*1 of the trans- (1973). An examination trial conclusion. court’s and exhibits fully supports cript dismissed; on the decree. judgment Appeal Hillsborough
No. 6985
Liberty Mutual Insurance Co. v. Indemnity Co. & a. 31, 1976 *2 Starr, Peters, Dunn & and Wadleigh, Kohls S. and Yakovakis James (Mr. M. Van Loan III Yakovakis for the Eugene orally) plaintiff. briеf and Augustine for the hy defendant McDonough, orally, J. Indemnity Devine, Millimet, S’ and Stahl Branch (Mr. M. III Joseph McDonough for defendants Richard and Car McDonough orally) Land Lavigne Auto Inc. Body Nourie, Sundeen, and S
Wiggin, William S. Orcutt and Pingree Bigg W. for defendаnts E. and Wright Donna Danenbarger Akerly. John Lampron, Petition under RSA declaratory judgment J. 491:22 establish the by brought seeking obli- rights to certain insurance parties gations issued policies and Home. The Grant, matter was heard by Liberty who died by J., before a decision. The then on rendering certain parties facts. One of these was that Richard was of Car Lavigne president Land at the time of on on the an accident prem- ises of Car Land in when a car owned Stella Hooksett by Murphy and driven collided with defendant by A John motion Home that part agreement referring fact that at that time be deleted was president granted At a held on the merits Mullavey, hearing petition, J. motiоn that the above order be vacated to allow Lavigne’s Perkins, introduction of further evidence thereon was granted by After the order to delete was affirmed and the merits of hearing, were reserved and transferrеd this court without petition of facts evi- statement and the ruling dence presented. Stella automobile was insured under by Liberty automobile She had left her car at Car Land for body
family was foreman of the al- body shop, rеpairs. on the Car date the accident. While legedly car from the driving process into the for the it collided with lot repairs parking garage John of Car Land. Home insured Car Land under Akerly, which included insur- collected workmen’s benefits ance. other than Home. ch. from insurer of Car Land RSA wife to recover he and his Donna action Thereafter brought for his damages alleged negligent operation *3 automobile. Murphy of virtue
I. denies for the accident Plaintiff by “to does not (f) exclusion which that its bodily provides in the course to fellow of the insured injured employee injury of his of au- out of the use if such arises injury employment of The in the his tomobile business employer.” the car with the faсts. was the operating Murphy Lavigne the the owner and was an insured of permission implied care, the in the vehicle was at time Liberty policy. Murphy the of control of Car Land for and being repaired. custody purpоse in connection with the the car requested was operating which of with Car Land in the course his and employment repairs of in the business Akerly was repairs. engaged his in course of Land and was the of Car injured was emрloyee employment. be- not
The defendants maintain that this exclusion does apply Car foreman, of Land was and president, allegedly cause Lavigne further of maintain thus not a fellow They and employee Akerly. in car the busi- the was not that driving using Murphy evidence that their There was of Car ness employer. him- work not the foreman. He did was a perform repair working into lot the body shop but did drive cars the self parking the time of the that at them He was just have doing repaired. in of as foreman consisted assigning his accident. job Although part the he not intend work to the did assign repairmen, car Akerly. not, time that this would of Car Land at
If Lavigne itself, of him from a fellow аnd in being employee of v. 97 N.H. Hirsch A.2d 402 employee Company, 90 N.H. It White v. is not a Company, who of the rank individual the act but of performs Pierce, act the character of the v. Galvin performed.
54 A. car driving by from the lot into the to be was an parking repaired of the common he act which were en- employment Akerly is, that of of cars customers of Car Land. gaged, repair not act of either as performing management, prеs- foreman, ident or and in that was a fellow of Bros., within the terms exclusion. Hardiman v. Akerly Walsh 456, 458-59, 96 N.H. 79 A.2d
Defendants Case rely Fidelity (1964), for their position injury arise “out of of the use an automobile in the of business his we In held that a Case reasonаble employer”. position of the insured would not have made considered use aby of a customer’s car it would repairman process servicing business”, constitute use in the “automobile which was excluded by Howevеr, of an the exclusion to a fellow em- the policy. injury out of the use an automobile “in the an insured arising ployee business his would be construed a reasonable in- employer” sured as of a customer’s car in the inсluding driving process it, which is “the of his business The latter repairing is a employer”. and is not limited to phrase general signification particular *4 of 349, Tuttle, business. type Merchants & See c. Cas. Co. v. 355, 262, (1953); 266 7 Insurance Law and Appleman, 1972, § Practice 1975). (1962, 4413 Such pro- Supp. Supp. vision is intended to exclude from a hazard which is not coverage associated with usual auto- normally operation family mobile. We hold that this exclusion Automobile “Family issued to Stella Policy” by Liberty prevented effectively itself for this accident. coverage See Merchants Mut. Melcher, & c. Co. 94 (1946); v. 49 504 1 R. A.2d Long, The Annot., Law of (1975); § Insurance Liability 3.18 45 A.L.R.3d (1972). It 288 is therefore to consider the other exclu- unnecessary sions relied on by Liberty.
II. Home that Richard anwas insured under agreed its “General Automobile issued to Car Liability” policy Insurance” of which is involved in “Garage this case. It coverage 16 time of the accident
also that at the operating with the vehicle in connection requested repairs the for Car Land. course of Finally thereon and his employment not an Home employee John an to insured “caused by The coverage policy provided Lavigne. out of operations.” occurrence arising relied on Home in brief of the only provisions insurance does exclusions: “This are the avoid coverage (c) to any under the Liability Garage Coverages:... aрply, his for which the insured or carrier as insurer may obligation liable under workmen’s be held compensation, unemployment law, (d) to or under similar law: or benefits disability compensation of and the insured out arising bodily injury any employee It the insured ....” is evident of his the course employment if neither will exception apply under the agreement is “insured” Lavigne. is the determinative With both exclusions respect now for limited to the whether the term “insured” is party calling whether includes the named also Richard Lavigne, coverage, § insured, Am. Auto 7 Automobile Body. Car Land 2d Insurance Jur. Annot., courts hold (1963); 50 97 Some 133 A.L.R.2d insured, that, is these if the injured employee party the absence of an arе exclusions employment applicable despite and the between injured claiming party relationship Co., F.2d 297 Liab. v. Cos. Mut. Co. Continental coverage. Michigan 1961); Carroll, Ala. (7th Cir. 271 Mut. Liab. Co. v. 208 Michigan Co., (1960); 108 123 So. 920 Ins. v. Home Indem. Farmers Group hold that these cases exclu- Other Ariz. 909 P.2d is an if the sions only injured employee particu- party lar insured Walker v. Fireman’s protection seeking 1967); (D. Mont. Co., F. Supp. Fund Ins. Cas. Maryland Cimarron v. Cas. Ins. N.J. Mfrs. N.J. Ore. P.2d 742 Ins. Ins. Co. Travelers avoid clauses is to of these duplication exclusionary objective insurance. Commercial Co., S.W.2d Ins. Ins. Co. v. American Gen. Standard 1970). (Tex. are intended They his workmen’s compensation employer suing
receiving *5 372 F.2d Door Co. v. Continental negligencе. Float-Away denied, 1967), (1967). 389 Under U.S. 701, 823 (5th Cir. cert. 708 there the of Home’s automobile definitions liability policy, afforded separately the “The insurance applies following: appears As or suit is whom claim is made brought”. to eaсh insured against that under insurance policy, an insured provided as he is of claims not need be duplication protected in we facts this case not the Under employer would of the insured hold that a reasonablе person position em- the workmen’s that come to the conclusion not would coverage exclusions ployee who is not an and thus has no employer employees under Home is workmen’s We hold that obligated compensation. limits of its to defend and within the Richard indemnify 352, 349, Tuttle, Esf 98 N.H. See Merchants c. Cas. Co. v. A.2d
III. As it is that at the time of the accident vehicle with the operating owner, liabil- we must consider Liberty’s implied permission under the Finаncial VII Law RSA (Supp. 268:1 ity Responsibility 1975). The limit on that one date required injury $15,000.00. Laws 316:1. provided Liberty policy that with insured has other insurance . . . the insurance “[I]f insurance to ... a non-owned shall be excess respect over other valid and collectible insurance.” Such provision has been held valid in 97 N.H. v. Merchants &?c. Cas. Davy Tuttle, (1952); 98 N.H. A.2d Merchants c. Cas. Co. v. Roberts, A.2d 262 Allstate Insurance Co. cases, however, In the insurance each these involved under (b) RSA VII requirеd 268:1 coverage 1975) of the motor vehicle The statute (Supp. liability policy. pro- vides if no other valid that such insurance expressly only “applies Hence the collectible insurance is available to the insured”. can that be excess insurance. properly provide case is under RSA
In the 268:1 seeking coverage present 1975) as an of the insured vehicle with (a) VII operator (Supp. consent insured Stella or implied Murрhy. legis
express that insurance meet lature required provide if of that section no other valid and applies only requirements Hence is available insured. insurance collectible provision insurance is exсess insurance is invalid that such as of the Financial section Responsibility regards § Am. Such an Statutes interpretation Act.See Jur. III which buttressed RSA provides is 268:16 *6 this Act minimum limits of accidents subject conditions, terms, exclusions, other “no violаtion of language or avoid the shall defeat contained operate policy... $15,000 within the limit of hold that both ...We Liberty, Home, within the limits its financial responsibility coverage, $100,000 for afford coverage, Lavigne primary сoverage this accident. would be the whether or not
IV. The result reached same of Car Land on the had been day to consider the issue accident. is unnecessary Consequently, in evidence the court erred in to admit whether the trial refusing of a of the Car Land minutes corporation February meeting 1970, which elected its at allegedly president.
Remanded. sit; Duncan, J., concurred. others Rehearing: After the opinion foregoing On Motion for filed, Home filed a for clarification. defendant Insurance request for motion. McDonough
AugustineJ. the motion. M. III opposed Joseph McDonough motion. Yakovakis opposed S. James filed for clarification treat the Lampron, We request a motion for opin- Insurance as rehearing. defendant Home at is modified by adding ion dated January III: the end of part Mutual afford both coverage,
“As primary policies to dеfend Richard Lavigne have a joint obligation the costs of defense. First Ins. Co. v. Continental and to share equally 1972); (9th Cir. Mut. Liab. Co., American F.2d Cas. So. 133-34 Ala. v. MilwaukeeIns. Case v. see Fidelity Furthermore, each insurer is pay pro obligated 900-01 the limits based rata upon share resulting judgment Couch, Law of Insurance noted above. 16 Cyclopedia C.J. Annot., (1966, 1975); (1952 §§ A.L.R.2d Supp. 62.32-62.33 Service).” & Later Case denied;
Motion rehearing opinion modified. *7 27, 1976. February
Belknap No. 7020
Sargent Lake Association a. Dane &
Arnold 31, 1976