Richard D. Brew & Co. v. Auclair Transportation, Inc.

Richard D. Brew & Co. (Brew) (plaintiff) had an insurance contract with Employers’ Liability Assurance Co. (the insurance company) for coverage of certain mining equipment. The insurance contract, which had a $150 annual premium, stated that the contract “shall not inure directly or indirectly to the benefit of any carrier, bailee, or other party, by stipulation in bill of lading or otherwise, and any breach of this agreement shall render this policy null and void.” While the contract was in effect, Brew paid a shipping carrier, Auclair Transportation, Inc. (Auclair) (defendant), to deliver mining equipment to Brew’s consignee. The equipment was worth nearly $19,000. Auclair gave Brew a straight bill of lading that contradicted the insurance contract, in that the bill of lading essentially granted Auclair the benefit of any insurance Brew had on the equipment. Specifically, the bill of lading read, “Any carrier or party liable on account of loss of or damage to any of said property shall have the benefit of any insurance that may have been effected upon or an account of said property, so far as this shall not avoid the policies or contracts of insurance, provided that the carrier reimburse the claimant for the premium paid thereon.” The mining equipment was damaged during shipping. Brew submitted a claim for the equipment damage to the insurance company, and the insurance company covered the claim. Brew then sued Auclair for the equipment damage (an action in assumpsit). Brew’s suit was brought as a subrogation claim on behalf of the insurance company. The trial court recognized that the legal issue in the case was whether Auclair’s bill of lading relieved Auclair from the insurance company’s subrogation claim, other than the $150 premium amount. The trial court did not rule on the question and instead transferred the case to the New Hampshire Supreme Court.