LACONIA — The company that insured a city woman involved in a fatal accident is asking a court to limit their potential liability to $25,000 and the cost of her defense, as her auto policy contained a public hire exclusion.
Denise Livingstone, both individually and as the administrator of her late husband’s estate, filed a wrongful death suit this spring against Cathleen Maguire of Laconia and Lakes Region Community Services Council (LRCSC).
Maguire was working for the non-profit area agency that provides services to the developmentally disabled and those with acquired brain injuries, when the complaint claims she crossed the center line on Route 106 and struck an oncoming Jeep head-on.
Earle “Cliff” Livingstone Jr., 57, died after suffering blunt force trauma to his head, neck and trunk. Maguire, 56, suffered a fractured leg and ribs. Her front seat passenger, Irene Marsh, 59, of Laconia, was initially reported as having suffered life-threatening injuries, but survived. The suit names LRCSC as a defendant, asserting that Maguire was providing community support services to Marsh at the time of the afternoon crash on Sept. 17, 2018.
Allstate Fire and Casualty and Insurance Co., based in Northbrook, Ill., has filed a petition for declaratory judgment in Belknap County Superior Court.
Allstate maintains that the auto policy it issued to Maguire excluded liability coverage for bodily injury or property damage arising out of the use of the insured vehicle to carry persons or property for a charge. They assert the exclusion precludes liability coverage for Maguire’s fatal crash as her employer, LRCSC, paid her to transport Marsh while using her Allstate insured vehcle.
According to court filings, Allstate has recognized its obligation to defend Maguire and to provide financial responsibility coverage in the amount of $25,000 pursuant to state law, but asserts it has no obligation under the public hire exclusion to pay the policy limits of $100,000.
Meanwhile, the law firm representing Denise Livingston and her late husband’s estate has agreed not to ask a judge to attach auto insurance policies and real estate belonging to the driver they claim is at fault or her employer.
Attorney D. Michael Noonan of Gordon & Shaheen, PA of Dover had initially filed a motion seeking to lien a $1 million auto policy held by LRCSC, Maguire’s auto policy, plus the Laconia administrative offices of LRCSC, arguing it was likely that they could recover a judgment of $3.5 million.
Attorney Michael P. Johnson of Boyle Shaughnessy of Manchester argued that LRCSC employs hundreds of people to provide services to its clients and their families in Belknap County and southern Grafton County and that granting the attachment would jeopardize the agency and the people they help. The agency’s headquarters were conveyed by the federal government in 2012 subject to numerous covenants, considerations and restrictions, key among them that for 30 years it will be used continuously for health purposes and during that time LRCSC will not resell, lease, mortgage or encumber or otherwise dispose of the property.
In response to the suit, Boyle additionally argued that both LRCSC and Maguire are entitled to immunity as both serve as a working arm of the N.H. Department of Health and Human Services.
He also asserted that the plaintiffs are not entitled to a prejudgment attachment, maintaining what caused Maguire to stray into the oncoming lane remains unknown. According to the accident report, Maguire told police she didn’t know how the accident happened.
The hearing requesting the attachment was canceled, the court file indicates, after the defense disclosed that LRCSC is covered by a $6 million umbrella insurance policy.
The case is now tentatively set to go to trial next July if the parties are unable to negotiate and out of court settlement.