Opinion
No. 3595.
Decided June 27, 1946.
Failure to comply with a requirement in a motor vehicle liability insurance policy, that endorsements to be valid must be physically attached to the policy, will not defeat coverage of otherwise properly executed policy endorsements. An insurance contract is deemed to have been completed by an application made through the insured's broker and issuance by the insurer of a policy purporting to be in accordance with the terms of the application. Where the terms of an insurance contract require that the policy be countersigned before it becomes effective, the place of countersignature is generally considered the place of the last effective act and determines the controlling law. The law of a foreign jurisdiction where a husband and wife are domiciled that they may not sue each other for a personal tort is no defense to an action by the wife against her husband in this state where the tort occurred and where the maintenance of such an action is permitted.
PETITION for a declaratory judgment to determine whether the provisions of a so-called fleet automobile liability policy require the plaintiff to assume the defense of an action brought against Louis J. Blake (hereinafter called the defendant) by his wife to recover for personal injuries alleged to have been caused by the defendant's negligent operation of an automobile at Franklin on July 14, 1938.
The policy in question purports to insure certain employees of the Standard Oil Company of New Jersey as owners and operators, for business or pleasure, of various automobiles. These owners and their automobiles are enumerated in a schedule attached to the policy. The defendant, though not named in the list of car owners, claims the benefit of the policy by virtue of an endorsement countersigned by the plaintiff's authorized representative on June 30, 1938, and mailed to the Standard Oil Company on July 20. The residence of the defendant is stated in the endorsement to be Lake Sunapee, New Hampshire.
Trial by the Court, whose findings of fact and rulings of law were substantially as follows:
"It appears without contradiction that the defendants, Mr. and Mrs. Blake, had arranged to borrow a friend's car for a proposed vacation trip to Lake Sunapee, New Hampshire. Mr. Blake, an employee of the Standard Oil Company, requested that company to procure an endorsement on its policy to cover both himself and Mrs. Blake on their journey. While driving through Franklin, New Hampshire, on July 14, 1938, a collision occurred with another car and Mrs. Blake received injuries, allegedly due to the negligence of Mr. Blake in the operation of the car. Suit was instituted in New Hampshire by Mrs. Blake against her husband seeking to recover damages for this alleged negligence. If judgment is recovered in that action, claim will be made against the plaintiff herein, for satisfaction thereof. The plaintiff denies coverage to Mr. Blake on account of any injuries sustained by his wife.
"In May, 1938, the Standard Oil Company of New Jersey, having an office in New York, applied through Alexander Alexander, insurance brokers, for a policy of automobile liability insurance. The policy, which was issued by the plaintiff, purports to have been countersigned at Newark, New Jersey, on May 10, 1938, by W. B. Morrell, `Authorized Representative.' Mr. Morrell by deposition denies this to be his signature and states that the policy was not issued from the plaintiff's New Jersey office, and what purports to be his signature was affixed in the New York office under a power of attorney executed by him many years ago.
"Later a request was received by Alexander Alexander from the Standard Oil Company's insurance department to bind operator's coverage on behalf of the defendants, Louis J. Blake and Hilda S. Blake. Alexander Alexander then telephoned the plaintiff's New York office requesting a binder and the issuance of the necessary endorsements to the policy so as to include Mr. and Mrs. Blake within its terms. Such coverage was bound on June 23, 1938. As in the instance of the original policy, the endorsement purports to have been countersigned at Newark, New Jersey, and bears the name W. B. Morrell, Authorized Agent. Mr. Morrell again denies this to be his signature and advances the same explanation as in the case of the original policy.
"Merely because it appears on the policy and the endorsement that the contract was signed in New Jersey is not controlling in view of the other circumstances already outlined. The Court therefore finds as a fact that the policy and the endorsement were issued and became effective in New York, and the Court rules as a matter of law that the rights and liabilities of the parties hereto, under the policy and the endorsement, are to be determined in accordance with the New York law applicable.
"Concerning liability policies, the statutory law of that state [N. Y. Laws 1937, c. 669] provides: `No such policy . . . heretofore or hereafter issued shall be deemed to insure against any liability of an assured for injuries to his or her spouse, or for injuries to property of his or her spouse, unless express provision for such insurance is included in the policy.' The Court finds that there is no express term in the policy as to spouses and rules that the New York statute applies, thus precluding coverage as to Louis J. Blake for injuries sustained by his wife due to his negligent operation of the automobile."
The defendants excepted to the refusal of the Presiding Justice to grant numerous requests, including the request for a ruling that the plaintiff was bound, under all the facts and circumstances of the case, "to extend coverage to Mr. Blake." Transferred by Tobin, J.
Murchie Murchie (Mr. Alexander Murchie orally), for the plaintiff.
Sulloway, Piper, Jones, Hollis Godfrey (Mr. Alvah W. Sulloway orally), for the defendants.
In answer to certain of the plaintiff's contentions relating to the validity of the endorsement, attention is called to the fact that the Trial Court ruled, at the defendants' request and without exception, that the policy and endorsement were in full force and effect on July 14, 1938, and that the endorsement "added Mr. Blake as a named assured under the policy."
The endorsement recites that "when signed by an authorized representative of the company and attached" to the policy "issued to Standard Oil Company of New Jersey et al," it "shall be valid and shall form a part of said policy." The requirement relating to physical attachment of the endorsement to the policy is unimportant. Maryland Casualty Co. v. Beebe, 54 Fed. (2d) 743, 745.
"An insurance contract is deemed to have been completed by an application made through the insured's broker and issuance by the insurer of a policy purporting to be in accordance with the terms of the application." And "if it is required that a policy be countersigned before going into effect, the place of countersignature is generally considered the place of the last effective act, and determines the controlling law." 12 Appleman, Insurance, ss. 7124, 7088. See Orient Ins. Co. v. Rudolph, 69 N. J. Eq. 570, 574, 575.
The principal argument of plaintiff's counsel is devoted to the proposition that inasmuch as both the policy and the endorsement were countersigned and delivered in New York, the provisions of the New York statute are applicable, and since the endorsement does not expressly provide coverage in the event of a suit against the defendant by his wife, the plaintiff is entitled to prevail in this proceeding.
This argument ignores certain important facts. The Presiding Justice has found that the defendant applied for insurance which would cover him on his vacation trip and that the parties "contemplated that the principal place of performance of their contract would be New Hampshire." The endorsement issued in compliance with this request purports to have been countersigned in New Jersey and to cover "Louis J. Blake . . . for damages resulting from any accident occurring while Louis J. Blake, Lake Sunapee, New Hampshire, is driving . . . any private passenger vehicle with the permission of any person having the right to grant such permission."
Neither the endorsement nor the policy contains any reference whatever to the New York statute, and any reasonable person in the position of the plaintiff would naturally expect the defendant to take the words of the endorsement at their full face value and to understand that complete protection was afforded him in case any action for damages caused in this state by his negligent operation of the borrowed automobile was brought against him here.
It follows that the plaintiff, having issued an endorsement which, by its terms and designated place of documentary execution, gave the defendant ostensibly the protection he requested, cannot now be heard to say that the defendant is deprived of a measure of that protection because the endorsement was in fact issued and delivered in New York.
Furthermore, it is stipulated in the policy, with respect to the extent of coverage, that the insurance provided thereby "shall conform to the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable." While the meaning of this clause is not free from doubt, its purpose would seem to be that of furnishing a policy which, in case of accident, would be accepted as proof of the insured's financial responsibility under the financial responsibility act of the state or province where the accident occurred. The policy which an insured is required to file in this state as proof of his financial responsibility is one which provides indemnity to him for loss by reason of his liability to pay damages for bodily injuries sustained by any person.
It is true that under the law of New Jersey a wife cannot maintain an action against her husband for his tort. Hudson v. Association, 123 N. J. Law 252, 253. But such an action can be maintained in this jurisdiction (Gilman v. Gilman, 78 N.H. 4; Maryland Casualty Co. v. Lamarre, 83 N.H. 206), and it is the general rule that although by the law of their domicile spouses "may not sue each other for a personal tort, that law is no defense in an action by one of them against the other in another jurisdiction where the tort occurred and by the law of which they are allowed to sue each other." Anno. 146 A.L.R. 705, 707. See also Gray v. Gray, 87 N.H. 82; Bradford v. Insurance Co., 39 N. Y. Supp. (2d) 810, 812.
The result here reached makes it unnecessary to consider the contention that the New York statute was designed to forestall the bringing of fraudulent actions in New York and was not intended to have extraterritorial effect.
Judgment for the defendants.
All concurred.