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2 N.H. L. Wkly. 1 (1975-1976)

handle is hein.barjournals/nhlw0002 and id is 1 raw text is: Volume 2. Number 1, Page I Summaries 4 Insurance company under its standard workman's compensation policy is not obligated to provide coverage to sub- contractor against whom a claim has been filed by an injured eml)loyee; insurance company is obligated to provide coverage to subcontractor in third party claims under its Manufacturer's and Contractor's Liability Insurance Policy. Hlonme Indemnity Co. v. Baker, 6/16/75. Wiggin, Nourie, Sundeen, Pingree & Bigg, and W. Wright l)anenbarger, for the plaintiff; Wadleigh, Starr, Peters, )onn & Kohlis, and Theodore Wadleigh, for Agway; l)evine, Nlillimet, Stahl & Branch, and Robert A. Backus, for Eugene I lussey, Intervenor; Flynn, Powell, McGuirk & Ilanchard, an(l Thomas E. Flynn, for Howard. BOWNES, J. Hlussey contracted with Agway for the construction of a building. Agway subcontracted with Baker to furnish the labor. I loward, an employee of Baker, was injured while working on the premises. lie brought suit against lussey and his son. alleging that son was casually negligent. lussey brought a third-party action against Agway alleging that Howard's injuries were due to Agway's failure to fulfill its contractual obligations to him by not The third-party claims of Agway and lussey are based upon the alleged in- dependent obligation of Baker to properly carry out his duties under the subcontract and upon the indemnificalion agreement in it. Clearly, the indemnification agreement is a liability assumed by Baker under a contract and, therefore, is ex- cluded from coverage. The difficult question is whether the language but this exclusion does not apply to a warranty that work performed by or on behalf of the insured will be done in a workmanlike manner applies. Nowhere in the policy is the word warranty defined. The factual situation giving rise to Howard's injuries does, however, provide some help in deter- mining whether or not here is a warranty situation in this case. The removal of a ladder and even the use of heavy machinery which lead to the injuries in question may be found to have been Baker's responsibility, but they certainly do not involve a breach of warrant, THAT WORK PERFORMED BY OR ON BEHALF OF THE INSURED WILL BE DONE IN A WORKMANLIKE MANNER. While the nonexclusionary clause within the policy might apply to improper work that resulted in injury, the term with t If Bak to ove to it I safe Based monly warra as pos there iipli act ion Sin coverl insure the p( do 111 Tur under tracto first t beca u reasoi insure third-1 reject ')'hc the po in the interp positio it. llov the po casua No Th In conne statut( 375-13: the N Comm hearin Concor for...co Regula The Tr The pr nateri tions, I Leasin Registi N.H. P By Its )om S July 2, 1975 Federal Court Decisions warranty simply does not comport to an ordinary intelligent insured. Aetna he allegations in the main complaint. Ins. Co. v. State Motors, Inc., 109 N.H. 120, ker breached any duty, it was a duty 125. rsec the work in progress and to see The language of the policy used passes hat his employees were furnished a muster. It is neither ambiguous nor and proper place in which to work. misleading. upon the pleadings and the com- The key to this exclusion is the type of understood meaning of the term claim asserted against Baker in the third- lty and giving as liberal a reading party complaints. Both intervenors urge ssible to the third-party complaints, that the exclusion does not apply because is no breach of warranty, express of the third-party claims are not for bodily ed, by Baker giving rise to a cause of injury, but for damages which may be l. incurred for the failure of Baker to have ice the exclusion clause precludes fulfilled his contractual obligations. It age for liability assumed by the would seem that the meaning of the words d under any contract or agreement, of the exclusion are to preclude suit by an olicy provisions providing coverage employee of the insured against the in- apply. sured for bodily injury. The third-party rning to the question of coverage claims are based on the failure of Baker to the Manufacturer's and Con- fulfill his contractual duties with Agway r's policy, intervenor lussey argues and an indemnification agreement be- hat the exclusion cannot be applied tween Baker and Agway.The bodily injury se it does not effectively convey to a claim is the claim of Howard against iable person in the position of the lussey. Tihe third-party claims only d that coverage is excluded for become operative if it is first found that )arty claims. That argument is Howard's injuries were due to the casual ed. negligence of Hussey. It is significant that e rule in this state has long been that the exclusion does not use the same licy should be considered as a whole language as the coverage section. The light of all the circumstances and exclusion here does not apply and that the reted as a reasonable person in the plaintiff is obligated to furnish coverage in of the insured would understand under its Manufacturers' and Contractors' vever in so doing it is fair Io interpret Liability Policy in the third-party claims licy in the light of what a more than against Baker. I reading of the policy would reveal Writ of Ilabeas corpus denied to LEGAL NOTICE petitioner convicted of flag mutilation; ISA 57:1: neither vague nor void for )tice of Piroposed iRule Making By overbreadtl under the First and Four- e New lampshire Public Utilities teenth Amendments to the U.S. Con- C'ommiission stitution. Royal v. Rockingham County Superior iccordance with RSA 541-A, and in Court, 6/5/75. McManus & Johnson, and ction with the Commission's Anthony MeManus, and N.H. Civil )ry rule making powers under RSA Liberties Uniin. and Richard S. Kohn, for 17 (I) (II), notice is hereby given by the plaintiff; Warren B. Rudnan, attorney ew Hampshire Public Utilities general, and Robert V. Johnson, I!, ission that it will hold an informal assistant attormney general, for the state. g at its office, 26 Pleasant St. in BOWNES. J. Petitioner seeks a writ of d, at 2 P.M., Monday, July 7, 1975, habeas corpus after his conviction is mnsidering the adoption of Rules & upheld by the N.H. Supreme Court, 113 ltions Governing Motor Carriers In N.I. 224 (1973) for flag mutilation. ansportation of Property For Hire. Petitioner was charged with wearing a oposed Rules & Regulations include flag patch over a hole on a sleeve of his al relative to Definitions, Exemp- jacket. teporting Requirements, Transfers, The court said Ihat there is no evidence g, Grandfather Rights, Tariffs, that petitioner was intending to convey a ration and Operations. particularized message when lie used the American flag as a sleeve patch. UBLIC UTILITIES COMMISSION Petitioner stated that he used the flag SECRETARY as a sleeve patch because he thought it was a cool thing to do. While the word cool D'Ambruoso, Secretary Continitted on next page N ewlpamsh ire LawWeekl-

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