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Pawtucket Mutual Insurance Co. v. Hartford Insurance Co.12/24/2001
Hillsborough-southern judicial district
The defendant, Hartford Insurance Company (Hartford), appeals an order of the Superior Court (Brennan, J.) declaring that it provides primary liability insurance coverage under a commercial auto policy for damages caused in a May 1997 automobile accident in Florida. We affirm.
The following facts are not disputed. In May 1997, Donald and Elaine Buckman went to Florida with William Vecchio and his wife. Donald Buckman (Buckman) was employed by New England Newspaper Supply Company (NENSCO) as product manager. Vecchio was vice president of Spencer Press, a client of NENSCO. Buckman and Vecchio had done business for approximately fifteen years and had developed a personal friendship. They socialized approximately once a month and had previously vacationed together with their wives. Neither Buckman nor Vecchio considered the trip to Florida a business trip, and they did not complete any business contracts or agreements while they were away. However, NENSCO, through its owner, had agreed to pay for the couples' rental vehicle as a perquisite to Buckman. Buckman rented the vehicle in his own name and paid for it with a company credit card given to him for business expenses. NENSCO also paid for the Vecchios' airfare and underwrote the cost of one dinner for the couples.
On May 10, 1997, the Buckmans and Vecchios were involved in an accident while Buckman was driving the rental vehicle. Several people were injured, and claims for property damage and personal injury were made against Buckman. At the scene of the accident, Buckman told the investigating officer that Hartford, NENSCO's auto insurer, was the responsible insurance carrier. Buckman immediately reported the accident to NENSCO and later to the plaintiff, Pawtucket Mutual Insurance Company (Pawtucket), his personal automobile insurer.
This appeal arises from a declaratory judgment action initiated by Pawtucket, which sought a declaration that NENSCO's commercial auto policy issued by Hartford provided primary liability coverage for the May 1997 accident. See RSA 491:22 (1997). Pawtucket acknowledged its obligation to provide coverage to Buckman, but maintained that its coverage was excess over any other collectible insurance because Buckman did not own the vehicle involved in the accident.
At issue are the Hartford commercial auto policy issued to NENSCO and the Pawtucket personal auto policy issued to Buckman. The Hartford policy provides coverage for "all sums an 'insured' legally must pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies, caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto.'" The policy lists NENSCO as the named insured and further provides that anyone else is an insured "while using with [NENSCO's] permission a covered 'auto' [NENSCO] own , hire or borrow ."
Both the Hartford and the Pawtucket policies contain "other insurance" clauses. The Hartford policy states, "For any covered 'auto' [NENSCO does not] own, the insurance provided by this Coverage Form is excess over any other collectible insurance." The policy further states, however, that " egardless of the provisions of [the above] paragraph . . . this Coverage Form's Liability Coverage is primary for any liability assumed under an 'insured contract.'" The policy defines "insured contract" as " hat part of any contract or agreement entered into, as part of [NENSCO's] business, pertaining to the rental or lease, by [NENSCO] or any of [NENSCO's] employees, of any 'auto.'" The "other insurance" clause in the Pawtucket policy provides that "any insurance we provide for a vehicle [Buckman does]
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