MacMillin Co. v. Aetna Casualty & Surety Co. , 135 N.H. 189 ( 1991 )

JOHNSON, J.,

concurring specially: I concur with the opinion of the Chief Justice but would add the following reason. In my view it is not enough, as the dissent suggests, for The MacMillin Co., Inc. to simply file their petition for declaratory judgment seeking insurance coverage and say to the trial court, “here’s the writ, and our policies cover the claim.” It is my belief that the insured has a duty to draw a roadmap for the trial court through the labyrinth of policies, with their twists and turns, to aid the trial court in determining coverage. This is hardly tod much to expect of an insured who desires to have its insurance company pay for a loss. Further, it gives the trial court the opportunity to consider the issue of coverage after a full consideration of the insured’s position. I would hold that it is the duty of the insured to outline for the trial court what were “the reasonable expectations of the policyholder.” Town of Epping v. St. Paul Fire & Marine Ins. Co., 122 N.H. 248, 252, 44 A.2d 496, 498 (1982). The trial court was never given the opportunity to consider the reading of the policies by which the dissent finds coverage. I would find in favor of the insurance company because the interpretation urged by the dissent was not considered by the trial court.

A second reason must be advanced in opposition to the dissent’s view that it is the court’s, and only the court’s, duty, without assistance from the parties, to comb the insurance policies to determine coverage or non-coverage. Under the dissent’s proposed procedure for resolving these issues, either the insured or the insurance company could discover that coverage or non-coverage had been determined, by the trial court or this court, upon a reading of the policy never advocated by the winning party, and where the losing party has never been given an opportunity to argue against the court’s interpretation of the insurance contract. That would result because the issue of how coverage either existed, or did not exist, had never been joined. Thus, no meaningful advocacy of the coverage issue would have been afforded the parties. Such a procedure turns procedural due process and legitimate argumentation, as we have known it and applied it in this State for centuries, on its head.