Concord Group Insurance Companies v. Lumbermans Mutual Casualty Co.

471 A.2d 1159, 124 N.H. 440, 1984 N.H. LEXIS 213
CourtSupreme Court of New Hampshire
DecidedFebruary 3, 1984
DocketNo. 82-332
StatusPublished
Cited by2 cases

This text of 471 A.2d 1159 (Concord Group Insurance Companies v. Lumbermans Mutual Casualty Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Concord Group Insurance Companies v. Lumbermans Mutual Casualty Co., 471 A.2d 1159, 124 N.H. 440, 1984 N.H. LEXIS 213 (N.H. 1984).

Opinion

Batchelder, J.

This is an appeal from a declaratory judgment, entered by the superior court, concerning insurance coverage for a vehicular accident. The issue presented is whether the defendant insurance company is estopped from denying coverage under its personal injury protection (PIP) policy because of its failure to comply with the notice requirements of RSA 268:5, IV (now codified at RSA 264:3, IV). For the reasons set forth below, we hold that the insurer under a PIP policy does not have a statutory obligation to notify the department of safety of its decision to deny coverage within fifteen days of its having learned of the accident.

Janet Wade, a Florida resident, was insured by Lumbermans Mutual Casualty Company (Lumbermans) through a Florida insurance agency under a PIP policy on a 1968 Oldsmobile Cutlass, which policy, by definition, provides no coverage for liability to third parties. While driving the insured vehicle on November 5, 1978, Janet Wade wap involved in a motor vehicle accident with two other vehicles in Windham, New Hampshire. Injuries were sustained by the defendants Philip and Mary-Ann LaJeunesse and Joseph and Mae Nasser.

Janet Wade filed a motor vehicle accident report with the New Hampshire Department of Safety on November 13, 1978. It is uncertain whether the department of safety ever sent form FR-21 to Lumbermans asking it to verify coverage. On December 4, 1978, knowledge of the accident was received by the Florida insurance agency through a telephone call from James Kalled, Esq., attorney for Mr. and Mrs. LaJeunesse and Mr. and Mrs. Nasser. The Fort Lauderdale claims office of Lumbermans received notice of the accident from the Florida insurance agency on December 7, 1978. The New Hampshire office of Lumbermans first became aware of the accident on January 2,1979, by way of a letter from Ralph Stein, Esq., attorney for the operator of the third automobile involved in the accident. By letter dated January 30, 1979, Lumbermans notified the department of safety and the parties to the accident that it was denying liability coverage for the accident of November 5,1978.

[443]*443The plaintiff, Concord Group Insurance Companies, a carrier of uninsured motorist insurance, filed a petition for declaratory judgment in the superior court seeking a declaration that Lumbermans was estopped from denying coverage because of its failure to comply with the fifteen-day notice requirement of RSA 268:5, IV. The Master (William H. M. Beckett, Esq.) recommended that Lumbermans not be estopped, and the Superior Court (Cann, J.) approved the master’s report.

The plaintiff appeals from the master’s report and seeks a ruling from this court that all insurance carriers be absolutely estopped from denying coverage if they fail to give the proper notice within fifteen days of their having learned, from any source, of an accident involving their insured.

RSA 268:5, IV (now codified at RSA 264:3, IV) reads as follows:

“Within 15 days after the receipt of notice of such accident, the insurance carrier . . . which issued such policy shall notify such director ... in case such policy was not in effect at the time of such accident. If no such notification is received within such 15 days, such director may assume that such a policy was in effect at the time of the accident.”

As we have consistently held, failure to abide by the dictates of this statute estops an insurance carrier from denying coverage. See Auclair v. Allstate Ins. Co., 118 N.H. 626, 631, 392 A.2d 1197, 1200 (1978); Hartford Accident and Indemnity Co. v. Come, 100 N.H. 177, 185-86, 123 A.2d 267, 273-74 (1956).

We are first presented with the question from what point the fifteen days is to be measured. The defendant Lumbermans argues that it did not receive notice from the department of safety via form FR-21, and therefore should not be estopped from denying coverage. Form FR-21 requests the insurance carrier to verify that a person who has filed an accident report with the department of safety, listing that insurer as providing liability insurance coverage for the accident, in fact is covered. The defendant Lumbermans would have us hold that its receipt of form FR-21 is a precondition to its obligation to notify the department of safety within the fifteen days of its decision to deny coverage.

This argument was addressed in Hartford Accident and Indemnity Co. v. Come, 100 N.H. 177, 123 A.2d 267 (1956). In Come, the insurer did not receive notice from the department of safety, but rather learned of the accident involving its insured “from its issuing [444]*444broker and from its own investigation.” Id. at 185, 123 A.2d at 273. In rejecting the argument, we stated:

“We are of the opinion that by virtue of the statute and even if inquiry was not made by the Commissioner, the company was under an obligation to the public, and to the Motor Vehicle Commissioner representing the public . . . to notify the Commissioner in compliance with RSA 268:5 IV that its insurance did not satisfy the statutory requirements of security for the payment of any judgment arising out of [the accident in question].... The plaintiff’s duty to notify the Commissioner arose on ‘the receipt of notice of such accident,’ whether notice came from the Commissioner or the insured.”

Id.

This holding in Come is consistent with our holding in Bowlan Lumber Co. v. Lemire, 120 N.H. 465, 468, 416 A.2d 1371, 1373 (1980). In Bowlan, we held that “actual notice,” although it be defective notice under the operative statute, RSA 281:18 (Supp. 1983), was sufficient to assert a claim for workmen’s compensation so long as the employer did not suffer any prejudice thereby. The legislature in RSA 268:5, IV (now codified at RSA 264:3, IV) does not expressly delimit the modes by which notice may be received by the insurance carrier for the insurance carrier to incur the duty to notify the department of safety. Cf. RSA 281:18 (Supp. 1983). Consequently, we see no reason to reexamine our holding in Come.

Sound public policy supplies the rationale for this strict obligation placed on an insurance company: Once the department of safety is made aware of the absence of adequate coverage, it is able to take steps to protect the public from the hazard represented by a driver on the State’s highways who lacks the requisite proof of financial responsibility. See RSA 264:3, I. We hold that receipt of form FR-21 is not a precondition to an insurance company’s obligations under RSA 264:3, IV (formerly RSA 268:5, IV). We hold further that its statutory obligations arise from the point that the insurance company receives notice of the accident involving an insured or an insured’s vehicle, from any source, in its home office, its New Hampshire office, or the New Hampshire office of one of its agents.

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Bluebook (online)
471 A.2d 1159, 124 N.H. 440, 1984 N.H. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/concord-group-insurance-companies-v-lumbermans-mutual-casualty-co-nh-1984.