“An agent may point out to [an insured] the advantages of additional coverage and may ferret out additional facts from the insured applicable to such coverage, but he is under no obligation to do so; nor is the insured under an obligation to respond.”
How later courts described this case
- “An agent may point out to [an insured] the advantages of additional coverage and may ferret out additional facts from the insured applicable to such coverage, but he is under no obligation to do so; nor is the insured under an obligation to respond.”
- insured is under no “obligation to respond” to insurance agent’s attempts to gain facts that may be relevant to additional available coverage
- agent was told only to obtain coverage provided to previous owner and had no reason to know of off-premises barbecue business which had never been included under coverage before
- for res judicata purposes claims are same if same evidence will support action in both instances
Written by the judges who cited it.
The opinion
Larrow, J.
(concurring in result) I agree with the majority of my brothers that the judgment below must be reversed. But I would do so on the basis of the 1967 declaratory judgment obtained by now defendant Concord against now plaintiff Hill. In my view, the issues now sought to be raised were in fact raised, litigated and concluded in that action.
True it is that these issues were not raised in the 1967 complaint, and that Concord sought to have them excluded from judicial consideration. But they were put in issue by the answer, which squarely raised the questions decided in Dodge v. Aetna Casualty, 127 Vt. 409 , 250 A.2d 742 (1969). I cannot agree with the statement in the majority opinion that the agent’s assurance of coverage would not bind Concord. Dodge v. Aetna Casualty, supra; Abajian v. Aetna Casualty and Surety Co., 232 F.Supp. 710 (D.Vt. 1964); Utilities Construction Corp. v. Peerless Ins. Co., 233 F.Supp. 64 (D.Vt. 1964). To me, the record is clear that these claims were raised by Hill and determined adversely to him in the 1967 action. His complaint in this action adds nothing, factually, to his 1967 answer; this becomes even more clear in light of the stipulation that the facts found in the 1967 action are binding in this action.
I would apply to this action the general principles laid down in B & E Corp. v. Bessery, 130 Vt. 597 , 298 A.2d 544 (1972). The distinctions drawn in McKee v. Martin, 119 Vt. 177 , 122 A.2d 868 (1956), are to my mind inappropriate. The two causes of action therein involved were distinct and different, supported by different evidence. One action was for *471 fraudulent inducement to contract, the other for breach of the contract itself; these actions even accrue at different times. Such is not here the case. Here the parties, subject matter, and causes of action are substantially the same, and the former judgment should bar this action. McKee v. Martin, supra, and cases therein cited.
Nor am I impressed by plaintiff’s claim that much of his evidence was excluded by the court in the 1967 action. Whatever the fact on this disputed claim, it is apparent that the issues now sought to be raised were raised in the 1967 action, decided adversely to now plaintiff Hill, and that the 1967 judgment was unappealed from. If, as plaintiff claims, the 1967 court, by exclusionary rulings, did not “litigate” the issues, he is not helped here thereby. The issues were raised, presented, and should have been “litigated”. The defense of prior adjudication does not require a showing of correctness, only one of finality.
I agree with the majority that the presence or absence of defendant Grandey as a party in the 1967 action does not affect the result here, because respondeat superior applies as between him and Concord. Jones v. Valisi, 111 Vt. 481 , 18 A.2d 179 (1941). This is especially true because for reasons not here apparent the judgment below runs only against the defendant Concord, without mention of Grandey.
I would also note that the 1967 action arose before the enactment of V.R.C.P. 13(a), so that the effect of that rule is not a factor in this decision.