Opinion
No. 3034
Decided April 4, 1939
In a policy insuring against liability for bodily injuries caused by operation of the assured's automobile and limiting the amount of coverage for bodily injuries to one person, her husband's loss of consortium resulting from her bodily injuries is within the stipulated coverage; and liability for his claim for such loss together with her claim for bodily injuries cannot be imposed beyond the amount as above stipulated.
A married woman recovered a judgment of $7500 for injuries received in a motor vehicle accident by the fault of a defendant insured by a policy limiting the insurer's liability to $5,000 for bodily injuries to one person. The insurer having paid $5,000 to the wife discharged its full statutory liability under the policy and is not liable in further action by the husband for loss of consortium.
In such case the wife having reduced her claim to a judgment was entitled to have the insurance fund applied to its satisfaction, notwithstanding the fund was exhausted thereby.
PETITION, for a declaratory judgment, to determine the rights of the parties under the terms of a motor vehicle liability policy issued by the plaintiff to the defendant Eugene D. Duncan. The reserved case contains the following statement of facts:
"On or about January 1, 1934, the petitioner issued a policy of liability insurance to the defendant Duncan whereby the petitioner agreed [in accordance with the requirements of Laws 1927, c. 54] to insure said Duncan against liability for bodily injuries sustained by others as a result of the operation of the insured vehicle. The petitioner's liability was limited to $5,000, for bodily injuries to one person and $10,000 for bodily injuries to more than one person resulting from one accident.
"On July 30, 1934 while the said Duncan was operating his motor vehicle, one Mary Yeroyan, wife of the defendant Karekin Yeroyan sustained bodily injuries.
"Suit was instituted by said Mary Yeroyan against said Duncan and judgment of $7,500 recovered.
"On October 1, 1936, the petitioner paid to the said Mary Yeroyan the sum of $5,000 plus interest and costs; the said Duncan with Mary Yeroyan as a party in interest has brought suit against the company to recover the balance due upon the judgment, claiming that the company was negligent in not making a settlement of this suit, together with the husband's claim prior to trial, for $4,500.
"Suit is now brought by the defendant Karekin Yeroyan [by writ dated September 20, 1937] to recover for loss of consortium as a result of the bodily injuries sustained by his wife, and the said Karekin Yeroyan seeks to hold the petitioner liable for any judgment recovered in the law action."
The plaintiff moved the court to strike out that part of the defendant Duncan's answer in which he claimed that coverage extended to any damages that might be recovered in the action for negligence. This motion was granted subject to exception. The "issue of coverage" on the facts reported was transferred by Connor, J., without a ruling.
Devine Tobin (by brief), for the plaintiff.
William H. Sleeper and Frederick J. Grady, for the defendants, furnished no brief.
The obligation of the plaintiff as stated in the body of the policy is, so far as here material, to pay all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages accidentally suffered by any person on account of bodily injuries, "including loss of services in consequence of such injuries." The obligation prescribed by Laws 1927, c. 54, is substantially identical with this policy-provision, since the preposition "for" in the phrase "liability to pay damages to others for damage to property . . . and/or bodily injuries" (Laws 1927, c. 54, s. 1, cl. II) is synonymous with the phrase "on account of." See Cormier v. Hudson, 284 Mass. 231, 235; 2 Words Phrases (4th series), 92.
While the deprivation of those marital rights comprehensively termed consortium (see Guevin v. Railway, 78 N.H. 289) is not a bodily injury to the husband in the sense in which those words are used in the policy, yet if the husband suffers such deprivation as the result of the bodily injuries sustained by his wife, his loss is within the stipulated coverage. American c. Ins. Co. v. Kopka, 88 N.H. 182. Since, however, his injury is a consequential one, coverage does not extend beyond the limit fixed for the payment of damages for the bodily injury out of which his loss arises. Putnam v. Assurance Corporation, ante, 74.
The husband did not bring his action until nearly a year after the plaintiff had made its payment on account of the wife's judgment against the insured. The act of 1927, operative at the time of the accident, provides that "Upon the recovery of a final judgment against any person for any loss or damage specified in this section, if the judgment debtor was, at the accrual of the cause of action, insured against liability therefor under a motor vehicle liability policy, the judgment creditor shall be entitled to have the insurance money applied to the satisfaction of the judgment." Laws 1927, c. 54, s. 6, cl. I.
It is unnecessary at this time to determine the exact limits of the rule applicable to the preferential settlement of multiple claims. See 49 Harv. Law Rev., 658; 43 Yale Law Journal, 136. The statute does not provide for ratable payment, and the wife, having reduced her claim to judgment, was entitled, on the facts stated, to have the insurance fund applied to the satisfaction of her judgment even though the fund was exhausted thereby. O'Donnell v. Casualty Co., 50 R. I. 275, 276. See, also, Bartlett v. Insurance Co., 117 Conn. 147; Bruyette v. Sandini, 291 Mass. 373; Turk v. Goldberg, 91 N. J. Eq. 283.
The plaintiff, having satisfied the judgment in the wife's favor to the extent of the policy limit ("five thousand dollars on account of injuries to . . . any one person," Laws 1927, c. 54, s. 1, cl. II) has discharged its full obligation under the policy. The question of its liability for negligence in failing to settle the suit and claim is determinable in the action at law. Douglas v. Company, 81 N.H. 371; Cavanaugh v. Corporation, 79 N.H. 186. The Presiding Justice correctly ruled that that question did not concern the issue raised by the petition.
Judgment for the plaintiff.
All concurred.