Opinion
File No. 62121
In an action by a judgment creditor against an insurer under a policy of automobile liability insurance, wherein the defendant alleged in its answer the breach by its assured of the contract of insurance, a reply was not demurrable which alleged that the defendant did not suffer any prejudice by reason of the claimed breach. An insolvent tort-feasor may not by his breach of contract of insurance bar the action granted to an injured person against an insurer by section 4231 of the General Statutes, Revision of 1930, where the breach of contract in and of itself does not prejudice the insurer. The question whether the contract of insurance was breached by the assured was one of fact to be determined upon trial of the action.
MEMORANDUM FILED OCTOBER 19, 1940.
Davis, Lee, Walker Wright, of Hartford, for the Plaintiff.
Day, Berry Howard, of Hartford, for the Defendant.
Memorandum of decision on demurrer to reply.
The plaintiff, having secured judgment against one Joseph A. Flynn for injuries suffered in an automobile accident, brings this action against the defendant insurance company, which was the insurer of Flynn, for damages caused by him in such accident. The defendant alleges in its answer the breach by Flynn of his contract of insurance with the defendant. In his amended reply the plaintiff alleges that the defendant did not suffer any prejudice by any such alleged breach of contract by Flynn. To this amended reply the defendant demurs.
If it were the law that an insolvent tort-feasor could by his breach of contract of insurance bar the action of an injured person against an insurance company given him under section 4231 of the General Statutes, Revision of 1930, then an alert plaintiff would have no remedy, even though the breach of the contract of insurance in and of itself did not prejudice the insurer. Such is not the modern trend of the law.
"If the trial court finds that Duphiney did falsely represent the facts to the company, the issue whether such conduct on his part constituted a breach of the paragraph of the policy in question would be presented for the determination of the trial court. The purpose of this provision is to protect the interests of the insurer, and any conduct of an assured, to constitute a breach of it, must have adversely affected its interest in some substantial and material way." Rochon vs. Preferred Accident Ins. Co., 118 Conn. 190, 198.
The question as to whether the contract of insurance of Flynn was breached by him is a question of fact to be determined upon the facts proven in the trial of the case and the law applicable thereto.