New Hampshire has held on several occasions that it does not. See Lumbermen's Mutual Cas. Co. v. McCarthy, 90 N.H. 320 ( 8 A.2d 750, 126 ALR 894), followed in Ocean c. Corp. v. Peoples Wet Wash Laundry, 92 N.H. 260 ( 29 A.2d 418), and Travelers Indemnity Co. v. New England Box Co., 102 N.H. 380 ( 157 A.2d 765). The latter case, following McCarthy, went on to say: "By its policy the plaintiff agrees to defend any suit to recover damages because of injury to . . . property . . . but expressly stipulates that this right and duty is `with respect to such insurance as is afforded by this policy,'" construing the words to mean that the duty exists only while "such insurance" is still afforded in the sense that it has not been paid out in satisfaction of a claim.
" RSA 276-A:4 II. This requirement is intended to prevent the employment of children under eighteen years of age in types of labor expressly prohibited by the statute. Ocean Accident Guaranty Corp. v. Laundry Co., 92 N.H. 260, 29 A.2d 418 (1942). RSA 276-A:5 V, captioned "Certificate", also provides that employers should keep on file copies of the certificates.
The history of the Workmen's Compensation Law and the cases decided under it refute this contention. Ocean Accident c. Corp. v. Laundry Co., 92 N.H. 260, 29 A.2d 418 (1942); Bernier v. Mills, 93 N.H. 165, 37 A.2d 5 (1944); Courage v. Carleton, 96 N.H. 348, 77 A.2d 111 (1950). The suggestion that Courage v. Carleton supra is distinguishable from the present case because there the minor was legally employed and was three years older than the plaintiff in the present case does not change the legal position of the parties.
Lumbermen's c. Co. v. McCarthy, 90 N.H. 320, 321. If there is no coverage, there is no duty to defend an action that is outside the coverage. Ocean Accident c. Corp. v. Laundry Co., 92 N.H. 260, 263; Desrochers v. Casualty Co., 99 N.H. 129. For a discussion of this matter see DesChamps, The Obligation of the Insurer to Defend Under Casualty Insurance Policy Contracts, 26 Ins. Counsel J. 580 (1959);Reed, Collection of Judgments by Reaching the Insurance Policy: Main Features of Liability Insurance, 45 Mass. L.Q. 4 (1960). In 8 Appleman, Insurance Law Practice, s. 4684, pp. 12-13, the law is stated as follows: "As we have seen, by the express terms of the policy the insurer is generally required to defend suits against the insured, which the pleadings show to be within the policy coverage, even though such suits be groundless, false or fraudulent.
10 Syracuse L. Rev., supra, 77. A further question is presented as to whether the plaintiff is obligated to defend the pending or future actions once the policy limit of $25,000 has been exhausted by the payment or settlement of claims or judgments. Under our decided cases, and subject to qualifications there stated, it is plain that it is not. Lumbermen's Mut. Ins. Co. v. McCarthy, 90 N.H. 320; Ocean Accident Corp. v. Laundry Co., 92 N.H. 260. By its policy the plaintiff agrees to defend any suit to recover damages because of injury to or destruction of property, even if groundless, but expressly stipulates that this right and duty is "with respect to such insurance as is afforded by this policy," which is the language of the Standard Automobile Liability Policy as revised in 1955.
However, "such injuries" referred to therein, likewise must mean injuries insured against in paragraph one from which occupational disease was excluded. Therefore, groundless suits for all injuries covered by the policy must be defended, but groundless suits for occupational disease were clearly excluded and defendant had no obligation to defend them. [See Daniel v. State Farm Mutual Insurance Company (Mo. App.), 130 S.W.2d 244; Brodek v. Indemnity Insurance Company, 292 Ill. App. 363, 11 N.E.2d 228; ElDorado Refining Company v. U.S.F. G., 157 Kan. 198, 139 P.2d 369; Pickens v. Maryland Casualty Co., 141 Neb. 105, 2 N.W.2d 593; Ocean Accident Guarantee Corp. v. Peoples Wet Wash Laundry (N.H.), 29 A.2d 418; Texas Indemnity Ins. Co. v. McLelland (Tex. App.), 80 S.W.2d 1101; Ocean Accident Guarantee Corp. v. Washington Brick Terra Cotta Co., 148 Va. 829, 139 S.E. 513.] Plaintiff also makes an argument on the fact that the exclusion clause was in a separate typewritten endorsement attached to the printed policy, but we are unable to understand how that prevented it from being a part of the insurance contract. We must hold that defendant had no obligation to defend suits in which no recovery could be had unless occupational disease were established, and that, on the actual facts, the Tindall case was such a suit.
Since by plaintiffs' own admission the deceased was illegally employed, it is urged that plaintiffs have no standing to recover. We have examined with care the following decisions cited by appellant in support of the foregoing proposition: Rudy v. McCloskey Co., 348 Pa. 401, 35 A.2d 250 (1914); Miller Mfg. Co. v. Aetna Life Ins. Co., 150 Va. 495, 143 S.E. 747 (1928); Goodwille v. London Guarantee Accident Co., 108 Wis. 207, 84 N.W. 164 (1900); Ocean Accident Guaranty Corp., Ltd. of London, Eng. v. Washington Brick Terra Cotta Co., 148 Va. 829, 139 S.E. 513; Ocean Accident Guaranty Corp. v. People's Wet Wash Laundry, 92 N.H. 260, 29 A.2d 418 (1942). We find in each of these cases that the action against the insurer was based upon paragraph I(b) of the Standard Policy, or the equivalent thereof, only.