Summary
In Sibson, however, the court merely held that an insurer who paid its insured's property damage claims could not bring a separate subrogation action to recover its payments after the insured had litigated claims for personal injury stemming from the same event.
Summary of this case from State Farm Fire & Cas. Ins. Co. v. Two Gun Constr.Opinion
No. 5025.
Argued May 1, 1962.
Decided June 29, 1962.
1. A judgment in an action for personal injuries constitutes a bar to the maintenance of a subsequent action for property damage suffered at the same time and from the same negligent act of the defendant.
2. The former judgment concludes the parties not only as to every matter which was offered and received to sustain or defeat the suit but also as to any other matters which might have been offered for that purpose.
3. So also, plaintiff's collision insurer which acquired a claim for property damage by assignment of and subrogation to the plaintiff's rights was held precluded from maintaining an action therefor after judgment was rendered in plaintiff's personal injury actions of which the insurer had notice but chose to withhold its claim for later presentation. The insurer's right of recovery is limited to a right to intervene in the first action brought by the insured.
4. In such case, the fact that the defendants knew that plaintiff's insurer had a claim for property damage and failed to have the insurer made a party to the personal injury action did not constitute a waiver of their right to object to a splitting of causes of action against them.
Motions by an insurer filed in actions of case for negligence brought by its insured against three defendants to recover for personal injuries suffered in a motor vehicle accident at Portsmouth on June 25, 1957. Travelers Fire Insurance Company, the plaintiff's collision insurance carrier, on July 19, 1957 paid the plaintiff his property damage less fifty dollars deductible, and the plaintiff thereupon assigned to the company his claims arising out of "such loss," authorizing the company to act in his name to enforce or settle such claims.
The three actions to recover for the plaintiff's personal injuries were instituted in March 1958 after the insurer had refused to authorize suit on its behalf by plaintiff's counsel; and were tried by jury commencing February 23, 1960. Verdicts were returned for the plaintiff on March 17, 1960.
Travelers Fire Insurance Company thereafter made demand upon the defendants' insurers for the property damage suffered by the plaintiff. These demands were refused on March 23, 1960 and counsel for Travelers then filed an appearance for it and for the plaintiff in each case, and moved for "leave to prosecute count for property damage." In April and May stipulations were filed in each personal injury case for docket markings of "judgment satisfied" and releases given by the plaintiff excluded property damage. The motion filed by Travelers was objected to, and on June 9, 1960, it filed a "motion to vacate judgment."
These and other facts were stipulated by the parties, and the Superior Court (Morris, J.) thereupon transferred to this court without ruling the following question: "Solely on the basis of the facts contained in the Agreed Statement of Facts, are the plaintiffs Howard W. Sibson and Travelers Fire Insurance Company barred from prosecuting count for property damage and loss of use?"
Hartnett Moher (Mr. Charles F. Hartnett orally), for Travelers Fire Insurance Company.
Devine, Millimet McDonough and Bartram C. Branch (Mr. Branch orally), for the defendant Robert's Express, Inc.
Boynton, Waldron Dill (Mr. Jeremy R. Waldron orally), for the defendants Depew.
By the great weight of authority in this country, the plaintiff's causes of action arising out of the accident were single causes, even though he suffered both personal injury and property damage simultaneously as a result of the defendants' negligence. Annot. 62 A.L.R. 2d 977, 982, and cases cited. 2 Freeman on Judgments (5th ed.) s. 613; Restatement, Judgments, s. 62, comment e, illustration 7; Dearden v. Hey, 304 Mass. 659. Likewise by the weight of authority, such a cause of action may not be made the subject of more than one suit; and recovery of judgment for some elements of damage caused bars recovery for other elements of damage for which recovery might have been sought, but was not. Dearden v. Hey, supra; 2 Moore's Federal Practice (2d ed.) s. 2.06, p. 378.
This is the settled law of this jurisdiction. "An attempt by stating only a part, and later bringing another suit upon another part, is an endeavor to split a cause of action. As before stated, the rule in King v. Chase, [ 15 N.H. 9] was adopted to prevent such procedure." Chesley v. Dunklee, 77 N.H. 263, 266. "The former judgment `concludes the parties, not only as to every matter which was offered and received to sustain or defeat the suit, but also as to any other matter which might have been offered for that purpose.' Metcalf v. Gilmore, 63 N.H. 174, 189." Id., 267.
It is obvious that under this rule the plaintiff could not maintain actions to recover his property damage after judgment in his suits for damages for personal injuries. Such actions would be barred by the rule of res judicata.
The vital question is whether the plaintiff's collision insurer can now maintain its claim based upon assignment of and subrogation to the plaintiff's rights. In some jurisdictions which subscribe to the majority rule against splitting a cause of action, an exception is recognized when an insurer acquires a claim for property damage in this fashion. See Underwood v. Dooley, 197 N.C. 100; Annot. 62 A.L.R. 2d, supra, 989. Cf. Hoosier Casualty Co. v. Davis, 172 Ohio St. 5. Other jurisdictions recognize no such exception. Moultroup v. Gorham, 113 Vt. 317; Coniglio v. Fire Insurance Co., 337 Mich. 38; General Accident, Ltd. v. Sircey, 354 Mich. 478; Farmers Ins. Exchange v. Arlt, (N. D.) 61 N.W.2d 429. We think that under the practice prevailing in this jurisdiction the view illustrated by the Moultroup case, supra, should be controlling, and that "the insurer's right of recovery was limited to a right to intervene in the first suit . . ." brought by the insured. Moultroup v. Gorham, 113 Vt. 317, 321.
We therefore hold that Travelers Fire Insurance Company is barred from prosecuting its claim. In reliance upon the rule of Chesley v. Dunklee, supra, the defendants were entitled to assume that any claim based upon the plaintiff's rights would be presented in his pending actions. Although they had notice through the pretrial order that "his insurance carrier" had a claim for property damage, the defendants should not be charged with waiver of their right to object to a splitting of causes of action against them upon the ground that they did not seek to have the insurer made party to the pending actions. See Perkins v. Associates, 100 N.H. 247. On the contrary, responsibility for seasonable presentation of its claim ought to rest upon the insurer itself, since it had ample notice of the pending actions but chose to withhold its claim for later presentation. Kidd v. Hillman, 14 Cal.App.2d 507. On the record before us it could not be found that the defendants consented to be subjected to successive actions for the same causes of action.
We do not favor the view adopted by some cases that partial assignment, or subrogation to a part of a cause of action, produces a new or separate cause of action. See Underwood v. Dooley, 197 N.C. 100, supra. Under our law the insurer's claim is derivative and its rights rise no higher than the plaintiff's from which they stem. "The rights of the insurers are only to enforce the rights of the plaintiff, in whose name the action must stand and be maintained." Montello Shoe Co. v. Suncook Industries, 92 N.H. 161, 162.
If a subrogation claim becomes barred by a judgment because of the insurer's failure to intervene owing to nonculpable ignorance of the pendency of suit, the insurer may be entitled to have judgment vacated. Moultroup v. Gorham, 113 Vt. 317, supra. See Hoyt v. Tilton, 81 N.H. 477. No such grounds are presented here, for the agreed facts establish that the insurer's course of conduct was deliberately chosen with knowledge of the pending suits. General Accident, Ltd. v. Sircey, 354 Mich. 478, supra.
The question transferred is answered in the affirmative.
Remanded.
All concurred.