THE STATE OF NEW HAMPSHIRE

SUPREME COURT

JULY TERM

ABDULE KAREEM ALBADRY

V.

GEICO DIRECT

2010-0278

Rule 7 Appeal from the Hillsborough County Superior Court, Northern District, Decision on the Merits

Brief of the Appellant

Keith F. Diaz #15831John P. Fagan #6828Emile R. Bussiere, Jr. #12829Bussiere & Bussiere, P.A.15 North StreetManchester, NH 03104

If oral argument is scheduled, Emile R. Bussiere, Jr. will representAppellant

TABLE OF CONTENTS

TABLE OF CASES ..............................................................................................................................iiTABLE OF STATUTES ......................................................................................................................iiiQUESTIONS PRESENTED FOR REVIEW ..............................................................................................1STATEMENT OF THE CASE AND FACTS .............................................................................................2SUMMARY OF ARGUMENT ...............................................................................................................9ARGUMENT ....................................................................................................................................10

I. MR. ALBADRY IS ENTITLED TO SUMMARY JUDGMENT AS THE TRIAL COURT CORRECTLYFOUND THAT HE IS LEGALLY ENTITLED TO RECOVER UNDER THE TERMS AND CONDITIONS OFHIS GEICO POLICY AND PROCEDURAL DEFENSES AVAILABLE TO THE TORTFEASOR MAY NOTBE USED BY GEICO TO AVOID COVERAGE ............................................................................10

II. THE TRIAL COURT ERRONEOUSLY APPLIED THE EQUITABLE DOCTRINE OF LACHES TO BAR MR.ALBADRY’S UNINSURED MOTORIST CLAIM ON WHICH HE WAS OTHERWISE LEGALLY ENTITLEDTO RECOVER ..........................................................................................................................12

A. THE TRIAL COURT FAILED TO CONSIDER THE ACTIONS OF GEICO THAT BAR THEAPPLICATION OF THE DOCTRINE OF LACHES AND ERRED IN FINDING ACTUALPREJUDICE IN THE DISMISSAL OF MR. ALBADRY’S LAWSUIT AGAINST THEUNINSURED TORTFEASOR .......................................................................................15

1. GEICO SUBSTANTIALLY CONTRIBUTED TO ANY DELAY IN DISCOVERY IN THISUNINSURED MOTORIST CLAIM AND SUFFERED NO PREJUDICE ON ACCOUNT OF SAMETHEREFORE APPLICATION OF LACHES AGAINST ALBADRY IS INEQUITABLE ...........17

a. GEICO’S CONDUCT ...................................................................................18

b. THE FAILURE TO ANSWER GEICO’S INTERROGATORIES DID NOT UNREASONABLY DELAY THIS CASE ............................................................21

c. GEICO SUFFERED NO ACTUAL PREJUDICE DUE TO THE ALLEGED FAILURE OF ALBADRY TO PARTICIPATE IN DISCOVERY ............................................22

2. GEICO IS RESPONSIBLE FOR THE LOSS OF ITS RIGHTS TO PURSUE SUBROGATIONAND ANY RESULTING PREJUDICE ............................................................................23

CONCLUSION ..................................................................................................................................33REQUEST FOR ORAL ARGUMENT ...................................................................................................34CERTIFICATE OF SERVICE ..............................................................................................................34ADDENDUM ....................................................................................................................................34

UNDERLYING MARCH 8, 2010 SUMMARY JUDGMENT DECISION...........................................35

TABLE OF CASES

Blue Cross/Blue Shield of NH-VT v. St. Cyr, 123 N.H. 137 (1983) ............................................29

Carveth v. Latham, 110 N.H. 232 (1970) ...............................................................................12, 30

Dwire v. Sullivan, 138 N.H. 428 (1994) .......................................................................................10

Estate of Laura, 141 N.H. 628 (1997) ...........................................................................................13

Healey v. Town of New Durham Zoning Bd, of Adjustment, 140 N.H. 232 (1995) ........14, 24, 33

Hughes v. Hebert, 106 N.H. 176 (1965) .................................................................................12, 30

In re Estate of Raduazo, 148 N.H. 687 (2002) ..............................................................................10

In re Giacomini, 150 N.H. 498 (2004) ....................................................................................13, 18

Jenot v. White Mountain Acceptance Corp., 124 N.H. 701 (1984) ........................................13, 27

Miner v. A & C Tire Co., Inc., 146 N.H. 631 (2001) .......................................................14, 23, 29

N.H. Donuts, Inc. v. Skipitaris, 129 N.H. 774 (1987) ..........................................13, 18, 21, 24, 33

Premier Capital, LLC v. Skaltsis, 155 N.H. 110 (2007) ...................................................14, 24, 33

Sibson v. Robert's Express, Inc., 104 N.H. 192 (1962) ................................................................28

Valhouli v. Coulouras, 101 N.H. 320 (1958) ................................................................................13

TABLE OF STATUTES

I. N.H. R.S.A. 508:4 ..................................................................8, 11, 12, 20, 25, 27, 31, 32, 33

Title 52. ACTIONS, PROCESS, AND SERVICE OF PROCESS

Chapter 508. LIMITATION OF ACTIONS

§ 508:4. Personal Actions

I. Except as otherwise provided by law, all personal actions, except actions for slander or libel,may be brought only within 3 years of the act or omission complained of, except that when theinjury and its causa l relationship to the act or omission were not disco vered and could notreasonably have be en discove red a t the time of the ac t or om ission, the ac tion shall becommenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonablediligence should have discovered, the injury and its causal relationship to the act or omissioncomplained of.

II. Personal actions for slander or libel, unless otherwise provided by law, may be brought onlywithin 3 years of the time the cause of action accrued.

II. N.H. R.S.A. 508:10 ....................................................8, 11, 12, 15, 17, 27, 29, 30, 31, 32, 33

Title 52. ACTIONS, PROCESS, AND SERVICE OF PROCESS

Chapter 508. LIMITATION OF ACTIONS

§ 508:10. Second Suit

If judgment is render ed against the plaintiff in an action brought within the tim e limitedtherefor, or upon a writ of error thereon, and the right of action is not barred by the judgment,a new action may be brought thereon in one year after the judgment.

QUESTIONS PRESENTED FOR REVIEW

1. Did the trial court err in granting GEICO Direct’s (hereinafter GEICO) motion for

summary judgment even though the trial court found that Mr. Albadry was legally entitled to

recover under the uninsured motorist provisions of GEICO’s policy of insurance? [Appx. Pls.

Mot. Sum. Jdgmnt. R 128; Pls. Obj. to Def. Mot. Sum. Jdgmnt R 182-87 and Pls. Mot. Recon. R

281-88].

2. Did the trial court err when it applied the equitable doctrine of laches as a bar to

Mr. Albadry’s right to uninsured motorist coverage? [Appx. Pls. Mot. Sum. Jdgmnt. R 128; Pls.

Obj. to Def. Mot. Sum. Jdgmnt R 182-87 and Pls. Mot. Recon. R 281-88].

3. Did the trial court err in denying Mr. Albadry’s motion for summary judgment?

See [Appx. Pls. Mot. Sum. Jdgmnt. R 128; Pls. Obj. to Def. Mot. Sum. Jdgmnt R 182-87 and

Pls. Mot. Recon. R 281-88].

1

STATEMENT OF THE CASE AND FACTS

The central issue in this case is whether the trial court erred when it granted GEICO

summary judgment on Mr. Albadry’s Petition for Declaratory Judgment for uninsured motorist

coverage based on a finding that Mr. Albadry’s conduct caused GEICO actual prejudice

sufficient to invoke the equitable doctrine of laches to bar Mr. Albadry’s right to enforce his

contract of insurance and relieve GEICO of its contractual duty to provide such coverage. A

finding that the trial court should not have granted summary judgment to GEICO will lead to the

conclusion that summary judgment should have been entered in favor of Mr. Albadry.

GEICO is an insurance company licensed to do business in the State of New

Hampshire. [Appx. R 2 and R 10]. The plaintiff was the named insured on a New Hampshire

automobile insurance policy issued to him by GEICO. [Appx. R 2, R 10 and R 25]. As required

by New Hampshire Law, the subject motor vehicle policy provided, among other things,

Uninsured Motorists Coverage Benefits. [Appx. R 35; Section IV, Uninsured Motorist Coverage,

Pages 9-12 of 14].

On February 18, 2002, an uninsured motorist, William Lang (hereinafter “Lang”),

negligently drove his car into the car then occupied Mr. Albadry. [Appx. R 158]. As a

consequence of the collision, Mr. Albadry sustained bodily injury. Id.

The plaintiff hired Attorney Paul T. Fitzgerald to handle his claim for damages arising

out of the accident. [Appx. R 3]. Within three months of the accident, via letter dated June 18,

2002, Attorney Fitzgerald informed GEICO of his representation of the plaintiff as well Mr.

Albadry’s uninsured motorist claim under the provisions of Mr. Albadry’s policy with GEICO.

[Appx. R 3]. In his June 18, 2002 letter, Attorney Fitzgerald enclosed the Police Department’s

accident report that identified Lang as an uninsured motorist. Id.

2

The earliest identifiable date in the record that Geico actually started an investigation is June 30, 2005, more thanthree years after the accident giving rise to the litigation and more than three years after Geico was placed on noticeof Mr. Albadry’s claim for uninsured motorist benefits. [Appx. R 94]. There is one other reference in AttorneyHolly J. Kilibadra’s affidavit to an initial investigation having been commenced by Geico at some point in 2005 butshe does not identify when in 2005 the initial investigation commenced. [Appx. R 213-14].

GEICO failed to acknowledge Attorney Fitzgerald’s June 18, 2002 letter of

representation which prompted Attorney Fitzgerald to contact the New Hampshire

Insurance Department. [Appx. R 3 and R 11]. On or about March 17, 2003, Attorney Fitzgerald

mailed a second notice of representation to GECIO. [Appx. R 3 and R 11]. At some point

thereafter, GEICO started an investigation. [Appx. R 3 and R 11].1

In December 2003, Mr. Albadry moved to Damascus, Syria. [Appx. R 160].

By letter dated August 17, 2004, Attorney Fitzgerald, on behalf of the plaintiff, submitted

a demand package with supporting medical records and medical bills to GEICO demanding the

policy limits of uninsured motorist coverage of $100,000.00. [Appx. R 4, R 12 and R 159]. By

letter dated August 27, 2004, GEICO acknowledged receipt of the plaintiff’s demand package

and, further, advised that it would contact Attorney Fitzgerald to discuss the merits of the claim

after review and consideration of the medical records contained within the demand package.

[Appx. R 4 and R 12]. There is no evidence in the record that GEICO ever contacted Attorney

Fitzgerald to discuss the merits of the claim as they had indicated they would until GEICO’s

attorney’s June 30, 2005 letter discussed below.

The pertinent provision of the policy of insurance regarding the obligations of an insured

to take affirmative actions against an uninsured tortfeasor to protect GEICO’s subrogation rights

after GEICO receives notice of the uninsured claim and prior to a payment by GEICO on the

uninsured claim states as follows:

“After we receive notice of a claim, we may require the insured to take any action

3

necessary to preserve his recovery rights against any allegedly legally responsible

person or organization.” [Appx. R 38 and Appx. R 96 (emphasis added)].

From the date of the accident, through the three year statute of limitations period

applicable to a claim by Mr. Albadry against the uninsured Lang, and up to the present date,

GEICO did not direct or request Mr. Albadry to take or maintain any action against the uninsured

Lang to preserve its recovery rights. [Appx. R 160].

On February 17, 2005, one day before the applicable statute of limitations would have

barred a claim against the uninsured tort-feasor, Attorney Fitzgerald filed a Writ of Summons in

the Belknap County Superior Court against Lang for damages arising out of Mr. Lang's negligent

operation of his motor vehicle on February 18, 2002. [Appx. R 4, R 12 and R 159]. He did this

notwithstanding the fact that Mr. Albadry had no contractual obligation to commence litigation

against Lang in order to preserve his claim for uninsured benefits under the GEICO policy.

[Appx. R 96 and Appx. R 38].

By letter dated March 10, 2005, the plaintiff, through Attorney Fitzgerald, informed

GEICO of the foregoing lawsuit and further advised GEICO of its obligation to protect its

subrogation rights going forward. [Appx. R 4, R 12 and R 159]. By letter dated April 6, 2005,

Attorney Fitzgerald again informed GEICO of the lawsuit and, again, advised GEICO of its

responsibility to protect its interests going forward. [Appx. R 4, R 12 and R 159]. GEICO never

attempted to protect its subrogation rights through intervention in the lawsuit or otherwise, nor

did GEICO instruct Mr. Albadry, directly or through his attorney, to protect GEICO’s

subrogation rights in any way. [Appx. R 160]. Instead, GEICO simply stood on the sidelines

doing nothing to protect and/or preserve its subrogation rights.

On June 30, 2005, GEICO propounded interrogatories upon Mr. Albadry by serving them

4

Although Geico now wants to take the position that the answering of these interrogatories was a condition2

of the policy as stated in paragraph 9 of Ciandre Taylor’s affidavit (Appx. R. 262) it is the position that theyexpressly adopted in June of 2005, not their after-the-fact recreation of their view of the policy requirements thatmust be considered for purposes of this appeal.

upon his counsel, Attorney Fitzgerald. In the cover letter forwarding the interrogatories,

GEICO, through its counsel, Attorney Holly J. Kilibadra, expressly stated its position that “the

answering of such interrogatories is not a condition of your client’s policy”. [Appx. R 94]. 2

Further, Attorney Kilibadra indicated that she may take one or more examinations under oath

which she pointed out was a condition of the policy and cited the policy language requiring same.

[Appx. R 94]. GEICO never requested an examination under oath of Mr. Albadry.

In her June 30, 2005 letter, Attorney Kilibadra also advised Attorney Fitzgerald of other

portions of the policy, including the following previously cited provision of the policy:

“After we receive notice of a claim, we may require the insured to take any action

necessary to preserve his recovery rights against any allegedly legally responsible person

or organization.” [Appx. R 96 and R 38].

As of June 30, 2005, GEICO was aware of the fact that a lawsuit was commenced against

Lang, yet, not once, did GEICO or its counsel request Attorney Fitzgerald or Mr. Albadry to take

any action to preserve Mr. Albadry’s recovery rights against Mr. Lang nor continue prosecuting

the claim against Lang. [Appx. R 159-160].

While the plaintiff was living in the Middle East, he had no knowledge of the lawsuit

filed against Lang as he had no contact with Attorney Fitzgerald concerning the same.

[Appx. R 159]. By motion dated September 28, 2005, Attorney Fitzgerald asked the trial court to

permit him to withdraw from his representation of the plaintiff. [Appx. R 105-06].

Also on September 28, 2005, Attorney Fitzgerald sent a copy of his motion to withdraw

5

Although Attorney Kilibadra indicates in her affidavit that Attorney Fitzgerald’s letter informed her that3

Mr. Albadry or his representative would be in contact with her in the “near future”, in the actual letter AttorneyFitzgerald expressly stated that he assumed Mr. Albadry or his new representative would be in contact with her in “atsome point in the future.” [Appx. R. 214 and 260].

to Attorney Kilibadra, and sent her a letter dated September 28, 2005 wherein she was advised

that Attorney Fitzgerald would no longer be representing Mr. Albadry and that he “assumed that

in some point in the future Mr. Albadry or some other representative may be in touch with your

office.” [Appx. R 214 and Appx. R 260]. Nowhere in Attorney Fitzgerald’s September 28, 20053

letter did he indicate that Mr. Albadry was withdrawing his claim for uninsured benefits and, in

fact, indicated that he assumed Mr. Albadry would, at some point in the future, be in contact with

GEICO to discuss his claim. Id. There is no evidence that Attorney Kilibadra or GEICO

responded to Attorney Fitzgerald’s September 28, 2005 letter. [Appx. R 160]. Further, GEICO

never attempted to intervene in the Lang action to protect its own interests even after they learned

that Attorney Fitzgerald would no longer be representing Mr. Albadry and also learned that

Attorney Fitzgerald had asked the court to permit him to withdraw from the Lang litigation.

[Appx. R 160].

On October 20, 2005, the Belknap County Superior Court (Smukler, J.) granted Attorney

Fitzgerald's Motion to Withdraw. [Appx. R 108]. Following Attorney Fitzgerald's withdrawal,

the plaintiff, then living in the Middle East, did not file an appearance with the Belknap Superior

Court. [Appx. R 159]. On November 17, 2005, the trial court dismissed the lawsuit pursuant to

Superior Court Rule 20 because Mr. Albadry did not file an appearance. [Appx. R 113].

GEICO acknowledges that on or about December 15, 2005, it was aware that the case

against Lang had been procedurally dismissed. [Appx. R 174 and R 215]. GEICO made no

attempt to maintain the action itself, through intervention or otherwise, in order to protect its

6

subrogation rights relative to the monies it may have to pay out in the future on Mr. Albadry’s

still pending uninsured motorist claim. [Appx. R 160]. Further, in December 2005, less than

three months after she was told that Mr. Albadry or his new counsel would be contacting her at

“some point in the future,” Attorney Kilibadra closed her file. [Appx. R 214-15]. There is no

evidence in the record that GEICO ever requested that the case be reinstated against Lang

notwithstanding the one year savings statute that Mr. Albadry and/or GEICO had to reinstate the

litigation against Lang. [Appx. R 172 and R 215].

In May 2008, the plaintiff returned to the United States of America at which time he

learned of the dismissal of the lawsuit filed against Lang. [Appx. R 159]. In November

2008, the plaintiff retained Bussiere & Bussiere, P.A. to pursue his claim for uninsured motorist

benefits. Id. By letter dated November 20, 2008, GEICO was advised of Bussiere & Bussiere,

P.A.'s representation of the plaintiff. [Appx. R 4 and R 13]. By letter dated January 6, 2009,

GEICO, through its counsel, informed the plaintiff that it did not recognize any responsibility to

provide uninsured motorist benefits as a result of the February 18, 2002 motor vehicle accident.

[Appx. R 5 and R 13].

On January 28, 2009, Mr. Albadry filed a Petition for Declaratory Judgment seeking a

determination that GEICO is obligated to provide him uninsured motorist coverage pursuant to

its policy of automobile insurance. [Appx. R 2-8]. GEICO answered Mr. Albadry’s petition on

May 6, 2009. [Appx. R 10-42]. Mr. Albadry submitted a replication. [Appx. R 44-50]. Both

parties filed motions for summary judgment and objections thereto. [Appx. R. 52, 128 and R 182

Pls. Obj.; R 189 Def. Obj.].

The Court (Abramson, J.) by Order dated March 8, 2010, granted GEICO’s Motion for

Summary Judgment and denied Mr. Albadry’s Motion for Summary Judgment. [Appx. R 268-

7

279]. In its ruling, the trial court held that GEICO had a contractual obligation to furnish Mr.

Albadry uninsured motorist coverage. [Appx. R 271]. Further, the trial court correctly found

that Mr. Albadry was “legally entitled to recover” under the policy even though he and GEICO

no longer had the ability to commence and/or reinstate an action against the uninsured tort-feasor

on account of the expired statute of limitations (NH RSA 508:4) and savings statute (NH RSA

508:10) . [Appx. R 273-75]. This finding has not been appealed by GEICO.

Notwithstanding the foregoing, the trial court granted summary judgment in favor of

GEICO through application of the equitable doctrine of laches. [Appx. R 275]. The trial court

specifically found that GEICO suffered prejudice due to the loss of its recovery rights against the

tortfeasor when Mr. Albadry failed to continue prosecution of his claims against the uninsured

tortfeasor. [Appx. R 276-77].

On March 18, 2010, Mr. Albadry filed a timely Motion for Reconsideration. [Appx. R

281-288]. GEICO objected. [Appx. R 290-295]. On April 5, 2010, the Court (Abramson, J.)

denied Mr. Albadry’s motion for reconsideration. [Appx. R 297]. Mr. Albadry filed this appeal

challenging the trial court’s decision.

Mr. Albadry asks that the Court reverse the trial court’s order and remand the case for an

entry of summary judgment in his favor.

8

SUMMARY OF ARGUMENT

Mr. Albadry had purchased a policy of insurance from GEICO that included uninsured

motorist coverage. He met all of his contractual obligations as he made a timely report of the

accident to his insurer and made a timely claim for uninsured motorist benefits. The contractual

provisions of the policy issued by GEICO only required Mr. Albadry to take action against an

uninsured tortfeasor if GEICO requested that he do so. GEICO never requested that Mr. Albadry

file suit or take any action against Lang. Therefore, Mr. Albadry had no obligation to commence

a lawsuit against Lang and his failure to re-file a claim which had been procedurally, not

substantively, dismissed against the uninsured tortfeasor does not bar him from recovery under

the uninsured motorist provisions of his policy. In short, Albadry was “legally entitled” to

recover damages from the tortfeasor and the trial court erred in denying Albadry’s Motion for

Summary Judgment.

The trial court incorrectly applied the doctrine of laches to bar Albadry’s claim for

uninsured motorist coverage as the court failed to properly consider GEICO’s obligations and

conduct. In applying laches, courts must always consider both parties’ conduct when balancing

the equities. Had the court reasonably considered GEICO’s obligations under its own insurance

contract, as well as GEICO’s own unreasonable delays and lack of diligence throughout its

involvement in this claim, it would have not have found Mr. Albadry’s claim for uninsured

motorist coverage barred by laches. The trial court erroneously focused solely on the plaintiff’s

actions and inactions which caused the trial court to erroneously absolve GEICO of its bargained

for contractual obligations.

The trial court incorrectly found that the defendant met its burden of proving actual

prejudice in support of its laches defense. The alleged prejudice suffered by GEICO was

9

theoretical, not actual. As GEICO did not suffer actual prejudice caused by its insured

application of the doctrine of laches was inequitable and erroneous.

Given the fact that Mr. Albadry was entitled to uninsured motorist coverage and his

conduct does not preclude him from the benefits of the coverage he purchased, he is entitled to

summary judgment.

STANDARD OF REVIEW

Summary judgment is only granted where “there is no genuine issue of material fact, and

if the moving party is entitled to judgment as a matter of law.” Dwire v. Sullivan, 138 N.H. 428,

430 (1994); N.H. RSA 491:8-a. “In reviewing a trial court's grant of summary judgment, [the

Court] considers the affidavits and other evidence, and all inferences properly drawn from them,

in the light most favorable to the non-moving party. If [the Court’s] review of that evidence

discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a

matter of law, [The Court] will affirm the grant of summary judgment. Where no material issue

of fact is in dispute, [the Court] will determine only whether the prevailing party was entitled to

judgment as a matter of law. [The Court] reviews the trial court's application of the law to the

facts de novo.” In re Estate of Raduazo, 148 N.H. 687, 688 (2002)(internal citations omitted).

ARGUMENT

I. ALBADRY IS ENTITLED TO SUMMARY JUDGMENT AS THE TRIAL COURT CORRECTLY FOUNDTHAT HE IS LEGALLY ENTITLED TO RECOVER UNDER THE TERMS AND CONDITIONS OF HISGEICO POLICY AND PROCEDURAL DEFENSES AVAILABLE TO THE TORTFEASOR MAY NOTBY USED BY GEICO TO AVOID COVERAGE.

A finding of summary judgment should be entered in favor of Mr. Albadry as the trial

court found no genuine issue of material fact regarding Mr. Albadry’s legal right to recover under

the policy and that he is entitled to judgment as a matter of law. [Appx. R 275].

10

Section IV of GEICO’s policy of insurance issued to Albadry provides:

“LOSSES WE PAY

Under the Uninsured Motorist Coverage we will pay damages for bodily injury caused byaccident which the insured is legally entitled to recover from the owner or operator of anuninsured auto or hit-and-run auto arising out of the ownership, maintenance or use ofthat auto.” [Appx. R 36].

To the extent, therefore, that Albadry is “legally entitled” to recover damages from the uninsured

tortfeasor, GEICO must provide coverage to Albadry. In reaching its decision in this case the

trial court first considered the extent to which GEICO could avail itself of procedural as well as

substantive defenses available to the uninsured tortfeasor. [Appx. 271]. The trial court correctly

concluded that the affirmative defense of violation of the statute of limitations is a procedural

defense, not a substantive defense. [Appx. 275]. Furthermore, the trial court correctly concluded

that New Hampshire law follows the majority rule that the phrase “legally entitled to recover” as

used in the GEICO uninsured motorist policy does not permit GEICO to assert procedural

defenses which would bar direct action by its insured against the tortfeasor. [Id.]. The procedural

defense at issue in this case is that of the statute of limitations.

While concluding that GEICO may not avail itself of RSA 508:4 as a defense to

Albadry’s uninsured motorist claim, the court incorrectly (and inconsistently) found that

Albadry’s failure to re-file his lawsuit against Lang after his initial claim was procedurally

dismissed was a basis on which to deny Albadry uninsured motorist benefits under his GEICO

policy. This finding was erroneous as a matter of law.

There is no procedural or substantive difference between claims barred by RSA 508:4 and

those barred by RSA 508:10. RSA 508:4 establishes a general three year statute of limitations

applicable to most personal actions. Similarly, RSA 508:10 (the “savings statute”) is designed to

11

“extend, but not abridge, the period afforded by the general statute of limitations for the bringing

of actions.” Hughes v. Hebert, 106 N.H. 176, 178 (1965). RSA 508:10 simply extends the time

in which a plaintiff may continue an action previously dismissed for reasons other than an

adjudication on the merits. Carveth v. Latham, 110 N.H. 232, 234 (1970). RSA 508:10 is

nothing more than a separate limitations period which operates under special circumstances.

Like RSA 508:4,. RSA 508:10 operates to bar claims not on their substance, but due to the time

at which they were filed. Both are, therefore, procedural rather than substantive defenses.

Upon dismissal of his action against Lang, Albadry had an additional one year in which to

re-file his claim pursuant to RSA 508:10. Albadry did not voluntarily re-file his suit against

Lang nor did GEICO ever request that Albadry do so. As the result of this procedural history the

original statute of limitations for filing a direct action against Lang was extended from February

18, 2005 until November 17, 2006 (due to application of the savings statute). As discussed

below, GEICO had a contractual right to direct Albadry to re-file his action against Lang, while

Albadry had no corresponding duty to voluntarily re-file his claim. GEICO did not avail itself of

its option to direct Albadry to re-file his suit. Furthermore, GEICO had a right to intervene in the

action filed by Albadry to protect its subrogation interest. It did not do so. In short, Albadry is

“legally entitled” to recover damages from the uninsured tortfeasor and GEICO is obligated by its

contract of insurance to provide uninsured motorist benefits to Albadry.

The trial court erred as a matter of law in denying Albadry’s Motion for Summary

Judgment. As Albadry is legally entitled to recover from the uninsured tortfeasor he is entitled to

judgment as a matter of law in his declaratory judgment action.

II. THE TRIAL COURT ERRONEOUSLY APPLIED THE EQUITABLE DOCTRINE OF LACHES TO BARALBADRY’S UNINSURED MOTORIST CLAIM THAT HE WAS OTHERWISE LEGALLY ENTITLEDTO RECOVER.

12

Laches is an equitable remedy which “bars litigation when a potential plaintiff has slept

on his rights.” Estate of Laura, 141 N.H. 628, 635 (1997). The party asserting laches bears the

burden of proving both unreasonable delay and that prejudice resulted from the delay. In re

Giacomini, 150 N.H. 498, 502 (2004).

“Mere lapse of time alone is not enough to establish laches.” Jenot v. White Mountain

Acceptance Corp., 124 N.H. 701, 710 (1984). "Neither law nor equity nor science has been able

to develop any mechanical gauge that will automatically tell litigants or the court the number of

months or years that are required to constitute reasonable promptness in bringing a suit to avoid

the defense of laches." Valhouli v. Coulouras, 101 N.H. 320, 322 (1958). “In determining

whether to apply laches, courts in this jurisdiction will turn to the analogous statute of limitation

for guidance.” Jenot, 124 N.H. at 710. However, laches differs from the defense of statute of

limitations in that application of laches is “principally a question of the inequity of permitting the

claim to be enforced - an inequity founded on some change in the conditions or relations of the

property of the parties involved.” Id.

In deciding whether there is an inequity founded on some change in the conditions or

relations of the parties involved, the court “should consider the knowledge of the [plaintiff], the

conduct of the [defendant], the interests to be vindicated and the resulting prejudice.” In re

Giacomini, 150 N.H. 498, 502-03 (NH 2004). Further, the correct balancing of the equities

“depends on the conduct of all the parties, not solely upon those of one.” N.H. Donuts, Inc. v.

Skipitaris, 129 N.H. 774, 783 (1987)(internal citation omitted).

Where the delay complained of is caused or contributed to by the conduct of the party

asserting laches, “the delay is excusable and is not attributed to the complainant.” N.H. Donuts,

129 N.H. at 783 (laches not applied against a plaintiff, even if their delay in filing a lawsuit was

13

unreasonable, because the defendant contributed to the delay). When the party asserting laches

conducts itself so as to cause or contribute to the prejudice it attributes to the plaintiff, the

doctrine of laches cannot be applied equitably. See Premier Capital, LLC v. Skaltsis, 155 N.H.

110, 118-19 (2007) (laches not applied against a plaintiff, a successor creditor, when defendants

destroyed their promissory note records relying upon a belief that the plaintiff’s action under the

note would be barred by the statute of limitations). When the party asserting laches conducts

itself so as to ignore its rights and/or obligations the conduct creates an inequity that bars

application of the doctrine. See Healey v. Town of New Durham Zoning Bd, of Adjustment, 140

N.H. 232, 242 (1995)(laches did not apply to the plaintiffs’ four-year delay in bringing a zoning

ordinance complaint against their neighbors because the neighbor, at the time they caused the

violation by constructing a two car garage, knowingly disregarded their obligation to observe the

zoning ordinance and/or, in the alternative, did not submit a variance requesting permission to

build a two car garage).

Unreasonable delay in commencing suit is, of itself, insufficient to establish laches; the

unreasonable delay must result in actual prejudice to the party asserting the defense. Miner v. A

& C Tire Co., Inc., 146 N.H. 631, 634 (2001)(laches inapplicable despite court finding of

unreasonable delay in filing suit as defendant unable to produce evidence of actual prejudice).

In this case, Albadry seasonably presented to GEICO his claim for uninsured motorist

benefits. He never withdrew his claim for uninsured motorist benefits. Similarly, GEICO did

not deny Albadry’s claim for uninsured motorist benefits until January, 2009, after Albadry

retained current counsel. [Appx. R 5 and R 13]. The trial court’s finding that Albadry “failed to

file a claim for UM coverage under the policy” is simply incorrect.

In granting GEICO’s Motion for Summary Judgment, the trial court erred, as a matter of

14

law, in not considering GEICO’s conduct and, more particularly, did not consider what role

GEICO played in causing the delay and prejudice it imputes to its insured. In addition to the

foregoing, the trial court erred in finding actual prejudice to GEICO as a result of delay.

A. THE TRIAL COURT FAILED TO CONSIDER THE ACTIONS OF GEICO THAT BAR THEAPPLICATION OF THE DOCTRINE OF LACHES AND ERRED IN FINDING ACTUALPREJUDICE IN THE DISMISSAL OF MR. ALBADRY’S LAWSUIT AGAINST THEUNINSURED TORTFEASOR.

Proper consideration of GECIO’s conduct and the lack of actual prejudice would have

precluded application of the doctrine of laches to bar Albadry’s right to underinsured motorist

coverage. The relevant time frame to examine both parties’ actions is from February 18, 2002,

the date of the collision, through November 17, 2006, the date that the suit against the uninsured

tort feasor could no longer be re-instated pursuant to NH RSA 508:10.

The following is a synopsis of relevant dates and the actions or inactions of both parties

in the relevant time frame:

• February 18, 2002 (date of accident) [App. R 158]

• June 18, 2002 (Attorney Fitzgerald asserts UM claim -no response from GEICO).

[App. R 3].

• March 17, 2003 (second letter from Attorney Fitzgerald to GEICO after complaint

to New Hampshire Department of Insurance). [App. R 3 and R 11].

• At unidentified point in time after March 13, 2003, GEICO opens investigation.

Id.

• August 17, 2004 demand letter with medical records and bills sent to GEICO.

[App. R 4, R 12 and R 159].

• August 27, 2004 GEICO acknowledges receipt of the demand and advises it will

15

contact Albadry’s lawyer to discuss after consideration of the same. [App. R 4

and R12].

• February 17, 2005 suit filed against Lang (between August 27, 2004 and February

17, 2005 GEICO does not direct Albadry to file suit, does not seek his

examination under oath, does not seek additional medical documentation, and

does not respond to the demand as GECIO claimed it would). [App. R 4, R 12 and

R 159].

• February 18, 2005 three year anniversary of accident

• March 10, 2005 GEICO advised of lawsuit against Lang and its obligation to

protect its own subrogation rights (GEICO does not intervene in case or otherwise

seek to protect its subrogation right). Id.

• April 6, 2005, GEICO again advised in writing of the pending lawsuit and the

need for it to protect its subrogation rights (GEICO does not move to intervene or

otherwise seek to protect its subrogation right). Id.

• June 30, 2005 GEICO propounds interrogatories to Albadry advising he has no

contractual obligation to answer them. [App. R 94].

• Sometime in 2005 Attorney Kilibadra contacts Lang and speaks with him

regarding accident and learns of his possession of “potential” assets of an

undetermined amount. [App. R 213].

• September 28, 2005 Attorney Fitzgerald moves to withdraw as counsel of Albadry

(GEICO does not move to intervene and does not advise Albadry or his counsel to

continue prosecuting the lawsuit). [App. R 105-06].

• October 17, 2005 motion to withdraw granted (GEICO takes no action). [App. R

16

108].

• October 20, 2005 Rule 20 notice mailed. [App. R 109].

• November 17, 2005 Rule 20 dismissal (GEICO takes no action). [App. R 113].

• December, 2005 GEICO’s counsel closes her file (Albadry not directed to re-file

suit and GEICO does not file suit or seek to intervene in action to protect its own

interests) [App. R 215].

• November 18, 2006 Savings Statute deadline for re-filing suit against Lang

expires (GEICO has not by this date advised Albadry to re-file suit).

The trial court apparently ignored the actions and inactions of GEICO in its order when

focusing on two aspects of Albadry’s conduct. [Appx. R 275]. First, the court found that

Albadry unreasonably delayed discovery by failing to respond to GEICO’s interrogatories

regarding his injuries. [Appx. R 276]. Second, the trial court found that Albadry unreasonably

delayed his uninsured motorist action when during his absence he “abandoned” his uninsured

motorist claim and lawsuit. Id. The trial court found that the delay caused GEICO prejudice

when Albadry, in his absence, did not file an appearance or obtain new counsel pursuant to

Superior Court Rule 20, and, thereafter did not re-file the lawsuit within one year as permitted by

RSA 508:10 (the savings statute). [Appx. R 278]. These findings are inadequate as a matter of

law to permit application of laches, as GEICO’s conduct substantially contributed to any delay

and it is inequitable as a matter of law to permit GEICO to avoid its contractual obligation to

provide uninsured motorist protection to its insured under these circumstances.

1. GEICO SUBSTANTIALLY CONTRIBUTED TO ANY DELAY IN DISCOVERY IN THISUNINSURED MOTORIST CLAIM AND SUFFERED NO PREJUDICE ON ACCOUNT OF SAME,THEREFORE APPLICATION OF LACHES AGAINST ALBADRY IS INEQUITABLE.

During the period of time Albadry was absent from the United States, GEICO

17

The court order does not specifically reference the propounding of interrogatories as the “attempt” by4

GEICO to gather more information about his injuries, but as no other request for information was made it is evidentthat it is the interrogatories to which the trial court refers. It is unclear whether the trial court references this failuresolely as a basis for finding “unreasonable delay” or as dual support for both a finding of unreasonable delay as wellas prejudice. It will be discussed below in both contexts.

propounded on him a set of interrogatories. [Appx. R 213]. The trial court found that Albadry’s

absence combined with his failure to respond to these interrogatories caused unreasonable delay.4

(“The petitioner even failed to respond to the respondent’s attempts to gather more information

regarding his injuries. Consequently, the Court finds that the petitioner’s delay in filing suit was

unreasonable.”). [Appx. R 276]. There are several problems with this analysis.

a. GEICO’S CONDUCT

In a proper laches analysis, the Court must analyze the conduct of GEICO as the court

must “consider the knowledge of the [plaintiff], the conduct of the [defendant], the interests to be

vindicated and the resulting prejudice.” In re Giacomini, 150 N.H. at 502-03. “The propriety of

applying the doctrine of laches depends upon the conduct of all the parties, not solely upon those

of one.” N.H. Donuts, Inc., 129 N.H. at 774 (emphasis added). If GEICO contributed to the

unreasonable delay in discovery it now complains of, the delay is excusable and is not attributed

to the insured. Id. at 783. In N.H. Donuts, Inc., approximately five months after the defendant

began developing certain commercial property and had completed the foundation and part of the

walls of a foundation, the plaintiff complained that the development violated restricted covenants

of which the defendant was aware. Id. at 778. The defendant argued laches given the plaintiff’s

alleged delay in filing the complaint. Id. at 778-9. The Court concluded after considering the

knowledge and conduct of both parties that laches did not apply given that the defendant was

aware of its violation of the restricted covenant and, prior to suit being filed, engaged the plaintiff

in an extended negotiation for an approval of the violation which failed thus delaying the filing

18

of the suit. Id. at 784-785. Similarly, a correct application of laches depends on consideration of

GEICO’s conduct in causing the delay of discovery which it attributes to its insured.

It is admitted by GEICO that it was first advised of Albadry’s uninsured motorist claim

by letter from Attorney Fitzgerald by letter dated June 18, 2002. [Appx. R 3 and R 11]. Yet,

GEICO did not even respond to this letter of representation until after March, 2003 following

Albadry’s complaint to the New Hampshire Department of Insurance. Id. Thus, GEICO

squandered nine months of its ability to conduct discovery in this case by simply ignoring

Albadry and his counsel.

It was not until June, 2005 that GEICO requested any discovery from Albadry or his

counsel. In June, 2005 Attorney Kilibadra propounded interrogatories to Albadry. [Appx. R

213]. The calendar does not lie. The accident causing Albadry injury occurred in February,

2002. GEICO requested no discovery from Albadry for over three years after the accident.

GEICO could have, but did not: (1) seek from Albadry during this three year time period a

statement under oath; (2) request or obtain additional medical information from Albadry,

including an IME; (3) obtain statements from the investigating police or the tortfeasor; or (4)

request Albadry to provide any other information it required to investigate this claim. GEICO

had the opportunity to conduct discovery for over three years after the accident caused by the

uninsured motorist, but did not avail itself of the opportunity. Sitting on the sidelines doing

nothing despite a contractual right to request more is not the sort of conduct to which laches

reasonably applies.

The inequity of applying the doctrine of laches to bar Albadry’s claim is demonstrated by

review of what GEICO actually did, and when it did it.

The record reflects that GEICO did not seek a statement from the tortfeasor Lang until

19

some unidentified point in 2005 when Attorney Kilibadra met with Lang. [Appx. R 94]. This is

important for several reasons. First, Lang was available to, and did, give statements regardless of

any action or inaction by Albadry. Second, GECIO had the ability to obtain any information it

desired from Lang regardless of Albadry’s actions. Third, GEICO waited three or more years

after the accident to have an attorney seek information from the tortfeasor. Again, if timely

investigation of this claim was so important, why did GEICO itself wait for more than three years

to conduct even a preliminary investigation? If the investigation conducted by GEICO could

wait three years, it is difficult to conceive how any additional delay caused by Mr. Albadry could

be used as the supporting factual predicate by which he is prevented from maintaining his claim

for uninsured motorist benefits.

GEICO’s assertions that it would have acted differently had only Albadry been more

responsive are belied by its lack of attention to this claim for three years after the accident. For

instance, GEICO’s complaint that it was deprived of an IME rings hollow when it has never

requested an IME of Albadry. If GEICO wished an IME of Albadry, he was in the United States

until December, 2003. [Appx. R 159]. For nearly two years after the accident GEICO could

have, but did not, seek an IME.

As will be further addressed below, GEICO had a contractual right to require Albadry to

sue Lang. RSA 508:4 required that such a suit be filed within three years of the accident date.

GEICO did not prior to February 18, 2005 request that Albadry take any action against Lang.

GEICO’s failure to avail itself of its contractual right to require suit to be filed against Lang on or

before the expiration of the statute of limitations suggests very strongly that GEICO had no

intention of requiring Albadry to file such a suit.

After suit was filed on February 17, 2005, and prior to Attorney Fitzgerald’s withdrawal

20

on October 17, 2005, GEICO apparently learned that Lang had potential assets. [Appx. R 213].

GEICO did not then communicate with Attorney Fitzgerald that it desired Albadry to continue

his lawsuit. Despite the fact that Attorney Fitzgerald twice advised GEICO that he was not

protecting GEICO’s subrogation rights [Appx. R 4 and R 12], GEICO did not then advise

Albadry or his counsel that it insisted that suit be maintained and its subrogation rights protected

pursuant to the applicable provisions of its policy.

The lack of any substantial involvement by GEICO in this uninsured motorist claim for

three years after the accident is clear on the record and establishes that GEICO contributed to any

delay such that application of laches is inequitable as a matter of law.

b. THE FAILURE TO ANSWER GEICO’S INTERROGATORIES DID NOT UNREASONABLYDELAY THIS CASE

Where the delay complained of is caused or contributed to by the conduct of the party

asserting laches, “the delay is excusable and is not attributed to the complainant.” N.H. Donuts,

129 N.H. at 783. The interrogatories propounded by GEICO would be an appropriate discovery

device in civil matters subject to Superior Court rules or if the policy of insurance required a

claimant to answer such interrogatories. However, as GEICO acknowledged through its own

counsel, a claimant in an uninsured motorist matter is not obligated to answer interrogatories as

part of the carrier’s investigation of the claim. [Appx. R 218]. In her cover letter of June 30,

2005 to Albadry’s counsel, GECIO’s attorney, Holly Kilibadra, advised Albadry’s attorney that

“the answering of such interrogatories is not a condition of your client’s policy with GEICO, ....”

(emphasis added). [Appx. R 218]. Because GEICO created this ground rule in its policy and/or

through the express wording of the letter tendered by its counsel, it had no reasonable

expectation of any response, let alone a timely response, to the interrogatories it propounded. As

21

Albadry had no obligation to answer interrogatories, and had already supplied to GEICO the

support for his claim in the form of a demand for settlement, the failure to answer interrogatories

cannot be the basis for a factual finding sufficient to support an application of laches. [Appx. R

276].

Further, Attorney Kilibadra indicated that she “may” take one or more examinations

under oath which she pointed out was a condition of the policy and cited the policy language

requiring same. [Appx. R 95]. That GEICO waited over three years from the date of accident to

suggest it may want an examination under oath undermines, rather than supports, GEICO’s claim

that it required an EUO in order to evaluate this claim. GEICO’s own delay in deciding whether

to request a statement from Albadry substantially contributed to any delay in this case, and as

GEICO itself is guilty the court’s adoption of laches as a basis on which to grant GEICO’s

motion for summary judgment is inequitable and erroneous as a matter of law.

c. GEICO SUFFERED NO ACTUAL PREJUDICE DUE TO THE ALLEGED FAILURE OFALBADRY TO PARTICIPATE IN DISCOVERY.

GEICO asserts that its failure to obtain interrogatories caused it actual prejudice as it was

not able to timely review the responses but admits timely receipt of a demand package with

supporting medical records and bills. [Appx. R 4 and R 14]. In making its argument, GEICO

does not point to any new medical information previously available, but no longer available, due

to any delay in prosecution of this uninsured motorist claim. For similar reasons, GEICO’s

allegation of prejudice due to the inability to obtain an IME of Albadry is illusory. [Appx. R 206-

07]. There is no evidence that GEICO ever sought an IME of Albadry at any time prior to the

filing of suit against Lang in February, 2005 nor at any time thereafter. Further, GEICO still has

the ability to have an IME performed if it so chooses. Lastly, GEICO has not provided any

22

evidence in the record to support its theory that somehow, through the passage of time, it is no

longer able to have an IME conducted. In the absence of real, as opposed to theoretical or

potential prejudice, GEICO has failed to meet its burden of proof in support of its laches defense.

In sum, Mr. Albadry’s failure to answer interrogatories he was not required to answer and

his failure to submit to an IME that was never requested cannot properly be the grounds upon

which GEICO is permitted to escape its contractual obligation to provide uninsured motorists

coverage, especially in this case where it has failed to demonstrate any actual prejudiced it

suffered on account of same. Miner v. A & C Tire Co., Inc., 146 N.H. 631, 634 (2001)

(defendant could not support claim of prejudice by reference to improvements to property made

prior to the time when it alleged plaintiff’s should have filed suit where no subsequent

improvements had been made; defendant was in the same position at trial as it would have been

years earlier).

2. GEICO IS RESPONSIBLE FOR THE LOSS OF ITS RIGHTS TO PURSUE SUBROGATION ANDANY RESUILTING PREJUDICE

The second foundation on which the trial court rested a finding of unreasonable delay and

prejudice was the filing, and subsequent dismissal, of a direct civil action by Albadry against the

uninsured motorist, Lang. [Appx. R 276 ]. The court found that Mr. Albadry while away in the

Middle East abandoned his tort claim which caused GEICO prejudice. Id. at R 276-77. GEICO,

in arguing abandonment, asserts that Mr. Albadry violated the terms of its policy by allowing the

tort claim to be dismissed and not re-filed within a year thereafter. [Appx. R 197-200].

However, in its order granting GEICO summary judgment, the trial court conducted no

analysis of GEICO’s inaction leading to the dismissal of the tort claim and erred in finding

prejudice as a consequence of the dismissal. [Appx. R 275-79]. Prior to accepting the defense of

23

laches, the trial court is obligated to “consider the acts of all parties and may not merely critically

view the actions of one.” N.H. Donuts, Inc., 129 N.H. at 783. When the party asserting laches

conducts itself so as to ignore its rights and/or obligations, the conduct creates an inequity that

bars application of the doctrine. See Premier Capital, 155 N.H. at 118-19. see also Healey, 140

N.H. at 242 (laches did not apply to the plaintiffs’ four-year delay in bringing a zoning ordinance

complaint against their neighbors because the neighbor, at the time they caused the violation by

constructing a two car garage, knowingly disregarded their obligation to observe the zoning

ordinance and/or, in the alternative, should have submitted a variance requesting permission to

build a two car garage). Similarly, GEICO contributed to and/or caused the prejudice it attributes

to its insured as it was aware of the rights and/or obligations it had under the law and its

insurance contract to preserve its subrogation interests, yet slept on its rights and failed to act in

its own interest.

Consideration of this issue must start with the GEICO’s policy of insurance issued to

Albadry. [Appx. R 27- 40].

SECTION IV of GECIO’s policy pertains to uninsured motorist claims. [Appx. R 35].

As is the case with the balance of the policy, SECTION IV contains multiple subsections

addressing the respective rights and obligations of the insured and the insurer. The two

subsections of interest to this analysis are those entitled “CONDITIONS” and “TRUST

AGREEMENT.” [Appx. R 37].

Paragraph 2 of the CONDITIONS subsection provides:

“2. ASSISTANCE AND COOPERATION OF THE INSURED

After we receive notice of a claim, we may require the insured to take any action

necessary to preserve his recovery rights against any allegedly legally responsible

24

person or organization. We may require the insured to make that person or

organization a defendant in any action against us.” (underlines added) [Appx. R.

38].

Paragraph 3 of the TRUST AGREEMENT subsection provides:

“TRUST AGREEMENT

When we make a payment under this Coverage:

3. At our written request, the insured, in his own name, will take, through a

designated representative, appropriate actions necessary to recover payment for

damages from the legally responsible person or organization. The insured will

pay us out of the recovery for our expenses, costs and attorneys’ fees.” (Italics

added) [Appx. R 37].

Even a cursory reading of these two policy sections reveals a fundamental truth

overlooked or misapprehended by the trial court. Albadry had absolutely no contractual

obligation to either (1) sue Lang prior to expiration of the three year statute of limitation imposed

by RSA 508:4 or (2) to re-file a lawsuit commenced within the three year statute of limitation,

but later procedurally dismissed. GEICO’s policy makes it incumbent on GEICO to request the

insured to take action necessary to preserve his own rights of recovery against the tortfeasor

[Appx. R 38] (paragraph 2. ASSISTANCE AND COOPERATION OF THE INSURED).

Alternatively, after GEICO has made payment under the uninsured motorist portion of its policy,

which it has never done in this case, it may make written request on its insured to file suit against

the tortfeasor. [Appx. R 37] {Paragraph 3 TRUST AGREEMENT). Moreover, no provision of

the GEICO policy requires the insured to initiate on his own any action against the tortfeasor

absent a request by GEICO to do so.

25

The trial court, as a matter of law, erred in its failure to consider the conduct of GEICO in

assessing the loss of recovery rights against Lang. Had the trial court conducted a reasonable

review of GEICO’s inaction relative to the protection of its subrogation interests it would have

determined that GEICO slept on its rights and either caused or contributed to the loss of its

subrogation interests.

When suit was filed against Lang on February 17, 2005, the day prior to expiration of the

statute of limitation, it was not done at the direction of GEICO. [Appx. R 159-60]. There is

absolutely no evidence that GEICO had itself given any consideration to requesting Albadry to

file suit. GEICO knew as of the date suit was filed that Albadry had suffered bodily injury, that

he had counsel, and that he had made demand on it for the limits of his uninsured motorist

benefits, $100,000.00. [Appx. R 115-116 Def. Memo. of Law, Mot. Sum. Jdgmnt]. Yet, GEICO

displayed no urgency in resolving this matter or requiring Albadry to act to protect its ultimate

rights of subrogation. It was only through a decision of Albadry that GEICO’s right to

subrogation was preserved for any time beyond the expiration of the three year statute of

limitations on February 18, 2005. By filing suit when he was not required to do so, Albadry

benefitted GEICO. In short, he gave GEICO the gift of additional time to pursue subrogation; yet

GEICO did nothing to avail itself of its policy provisions to preserve this interest.

Albadry notified GEICO of the suit and his counsel advised GEICO of his ultimate

decision to withdraw as counsel. [Appx. R 159 and R 214]. GEICO was advised that Attorney

Fitzgerald was not protecting GEICO’s subrogation interest and twice invited GEICO to act to

protect itself. Id. GEICO did not either intervene in the pending action to protect its interests or

advise Attorney Fitzgerald that it was invoking its policy to require that Albadry see the lawsuit

to conclusion. [Appx. R 160].

26

Upon dismissal of Albadry’s direct action against Lang in November, 2005, GEICO was

once more in the position it occupied on the date when the three year statute of limitations

pursuant to RSA 508:4 would have expired; it faced a pending claim for uninsured motorist

benefits that had never been denied or affirmatively abandoned. The savings statute provided an

additional one year deadline for filing suit against Lang governed by the savings statute. GEICO

again slept on its rights.

GEICO argues that it was under no obligation to advise Albadry to continue his suit as he

had already brought suit. [Appx. R 202-03]. This is incorrect. On March 10, 2005 and again on

April 6, 2005 Attorney Fitzgerald advised GEICO in writing that it was incumbent on GEICO to

protect its own rights. [Appx. R 4, R 12 and R 159]. On November 18, 2005 GEICO knew that

Albadry’s claim had been procedurally dismissed, but that it could be re-filed pursuant to RSA

508:10. As of November 18, 2005 no suit was pending, and GEICO points to no policy

provision that required Albadry to re-file his claim. As of November 18, 2005 the savings statute

acted as a “re-set” button that preserved for an additional year all of GEICO’s rights and

remedies as to Lang. Similarly, as of November 18, 2005 the relative positions of Albadry and

GEICO were unchanged. There had been no “change in the conditions or relations of the

property of the parties involved.” Jenot v. White Mountain Acceptance Corp., 124 N.H. at 710

(1984). GEICO could have required Albadry to file suit pursuant to the terms of its policy or

filed its own claim as subrogee of Albadry. What GEICO chose to do, was sit back and do

nothing.

GEICO argues that it could not have acted to preserve its subrogation interest by hiring an

attorney to represent Mr. Albadry in an action against the tortfeasor. [Appx. R 202-03]. Even if

it were conceded that GEICO could not have hired an attorney to represent Mr. Albadry in a

27

There is nothing in the record to support a suggestion that GEICO actually considered the so-called5

inherent conflict of hiring counsel to pursue the Lang litigation. Instead, GEICO offers an after-the-fact excuse forwhy they could not have done so. The only party that truly had an interest in the litigation filed by Albadry againstLang was GEICO. Therefore, GEICO should have offered to hire an attorney to assist Mr. Albadry with theprosecution of the Lang litigation in response to Attorney Fitzgerald’s March 10, 2005 and April 6, 2005 letters.

personal injury case due to an inherent conflict [Id.], GEICO was not left without remedies under

the terms of its policy and New Hampshire law. 5

First, had GEICO elected to require Albadry to re-file his suit pursuant to the savings

statute it could have done so pursuant to Paragraph 3 of the Cooperation clause cited above.

[Appx. R 38]. Had Albadry not abided by such a request, GEICO might rightly complain of a

breach of policy conditions. But GEICO did not make such a request. GEICO was at the time

represented by competent counsel, Attorney Kilibadra, who instead of directing Albadry to file

suit, closed her file. [Appx. R215] based on an her unreasonable assumption that Mr. Albadry

was “abandoning” his claim for uninsured motorist benefits.

Second, GEICO had available to it a right of intervention which would have permitted it to

intervene in the Albadry v. Lang matter, not to protect Albadry’s rights, but to protect its own.

Lamarche v. McCarthy, 158 N.H. 197, 200 (2008) (“The right of a party to intervene in pending

litigation in this state has been rather freely allowed as a matter of practice. A trial court should

grant a motion to intervene if the party seeking to intervene has a right involved in the trial and a

direct and apparent interest therein. It is within the trial court’s discretion to grant intervenor

status” internal quotations and citations omitted). The right of an insurer whose subrogation

interests are affected by litigation commenced by its insured has long been recognized in this

state. The insurer may not sit on it hands and permit suit by its insured to go forward without

protection of its subrogation interest and choose to bring its claim at a later time. Sibson v.

Robert’s Express, Inc., 104 N.H. 192, 194 -95 (1962). The “responsibility for seasonable

28

presentation of its claim ought to rest upon the insurer itself, since it had ample notice of the

pending actions, but chose to withhold its claim for later presentation.” Id. at 194; see also, Blue

Cross/Blue Shield of NH-VT v. St. Cyr, 123 N.H. 137, 141 (1983) (“Blue Cross/Blue Shield, in

the absence of an agreement that its rights would be protected, had the right to intervene in the

suit to protect its interests.”). GEICO elected to forego any attempt to preserve its rights of

subrogation by intervention, before or after Attorney Fitzgerald moved to withdraw as Albadry’s

counsel, and simply allowed the one year for refiling suit to expire with no action by it.

Upon expiration of the one year for re-filing suit against Lang pursuant to RSA 508:10,

GEICO was again in exactly the same position it had long occupied. GEICO faced an uninsured

motorist claim which had not been abandoned or resolved, and had taken no steps to protect its

interests, nor directed Albadry to take steps potentially available to it under the policy. In fact,

due to the actions of Albadry, GEICO gained the benefit of an additional twenty-one months in

which to resolve the case and/or pursue and protect its subrogation rights (twenty-one months

from the original statute of limitations deadline on February 18, 2005 to the deadline for refiling

under RSA 508:10 on November 17, 2006).

Another key point overlooked by the trial court is that unreasonable delay in commencing

suit is, of itself, insufficient to establish laches; the unreasonable delay must result in actual

prejudice to the party asserting the defense. Miner v. A & C Tire Co., Inc., 146 N.H. 631, 634

(2001). GEICO suffered no actual prejudice due to the acts or omissions of Albadry.

Albadry’s absence from the United States did not cause GEICO’s loss of subrogation

interests. As has been shown above, GEICO’s failure to avail itself of its rights prior to and

beyond the expiration of the three-year statute of limitations caused the loss of its subrogation

rights. Even more fundamentally, however, is the reality that the expiration of the statute of

29

limitations is not a substantive bar to an insured’s legal right to recover under a policy of

insurance in New Hampshire. See above. The trial court correctly determined that New

Hampshire follows the majority rule that the phrase “legally entitled to recover” from an

uninsured motorist permits the insurer to assert substantive, not procedural, bars to recovery from

the uninsured. [Appx. R 275]. Therefore, had Albadry elected to not file suit on his own,

GEICO’s rights of subrogation would have expired on February 18, 2005 and, if on February 19,

2005, Albadry had requested arbitration of his claim, GEICO would be in exactly the same

position it occupies today: GEICO would have had to potentially pay uninsured motorist benefits

to Albadry with no right of recovery against Lang.

Consistent with the trial court’s adoption of the majority rule, GEICO has not argued that

Albadry had to file suit against Lang or request arbitration of his claim within three years after the

collision. In fact, GEICO does not appeal the trial court’s finding. Rather GEICO has asserted

only that allowing the claim to be dismissed and not re-filed within a year thereafter was a

violation of its policy that caused prejudice to its ability to recover from Lang. [Appx. R 199]. It

appears the trial court adopted this rational in its order granting summary judgment. [Appx. R

277]. However, in view of the majority rule, GEICO’s present inability to pursue a claim of

subrogation against Lang is not actual prejudice sufficient to support the defense of laches. It is a

matter of prejudice in form not substance and, therefore, the trial court erred in its finding.

N.H. RSA 508:10 (the “savings statute”) is designed to “extend, but not abridge, the

period afforded by the general statute of limitations for the bringing of actions.” Hughes v. Hebert,

106 N.H. 176, 178 (1965). The statute is procedural in that it merely extends the time in which a

plaintiff may continue an action previously dismissed for reasons other than an adjudication on

the merits. Carveth v. Latham, 110 N.H. 232, 234 (1970). It is a “safety valve” permitting a

30

plaintiff who has otherwise complied with the applicable statute of limitations to have his or her

case decided on its merits. The trial court, also found that under RSA 508:4 and RSA 508:10 Mr.

Albadry was only procedurally barred from recovery within the context of his legal right to

recover under GEICO’s policy. [Appx. R 273]. Therefore, RSA 508:10 is no different than RSA

508:4 in that failure to abide by its terms will time bar an otherwise valid claim.

The trial court also held that under the majority view it relied upon in its order, neither

RSA 508:4 nor RSA 508:10 affords to defendants a substantive defense in the context of a

challenge to an insured’s legal right to recover uninsured motorist coverage.

“A majority of courts dealing with the situation in which the statute of limitation s for bringing an

action ag ainst the uninsured motoris t has run have he ld that the ' legally entitled to rec over'

requirement means simply that the insured must establish fault and damages. Thus, the running of the

statute of limitations is not a bar to a uninsured motorist/underinsured motorist recovery.” [Appx. R

274 (internal citations omitted)].

As there is no legal or logical reason to conclude GEICO has been more prejudiced by a

claim time-barred by RSA 508:10 than a claim time-barred by RSA 508:4 the court erred as a

matter of law in finding that the failure to re-file suit pursuant to RSA 508:10 prejudiced GEICO.

In either case, an action against the tortfeasor is barred for procedural, not substantive reasons.

When Albadry’s suit against Lang was dismissed for procedural reasons on November

17, 2005, GEICO and Albadry occupied the same positions relative to Lang that they had

occupied on February 18, 2004 (two years after the collision and one year prior to the expiration

of the statute of limitations). Albadry had one year available to him in which to file suit again if

he chose to do so. GEICO had available to it one year in which to direct Albadry to file suit to

preserve GEICO’s rights of subrogation. If Albadry was under no independent duty to file suit

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pursuant to RSA 508:4 (as found by the trial court and as apparently accepted by GEICO) there is

no reason in contract or law that he had to independently re-file suit pursuant to RSA 508:10.

Therefore, it is illogical, unfair and inequitable to hold Mr. Albadry accountable for prejudice

arising out of the lapse of the savings statute under the doctrine of laches.

Additionally, there is a fundamental policy conflict when considering the application of

the majority rule adopted by the trial court to the ultimate decision in this case. The trial court

found that New Hampshire follows the majority rule that holds uninsured motorist benefits

remain available a policy holder even after the statute of limitation bars the policy holder and the

uninsured motorist carrier from a claim against a tort feasor. Given this determination, how can

the loss of the right to sue the tortfeasor on account of the statute of limitations constitute the

type of prejudice that would bar the policy holder from a claim for uninsured motorist benefits

pursuant to the doctrine of laches? In every case where the majority rule were applied, the

carrier could turn around and claim laches on account of the statute of limitations having barred

the carrier’s subrogation rights. This absurd result would render meaningless the majority rule

and is not consistent with New Hampshire law.

An important reality ignored by the trial court in finding prejudice is that the insured has

no contractual obligation to file suit against the uninsured motorist as that decision is controlled

by the terms of the policy and rests with GEICO. Therefore, GEICO controlled its destiny in

securing its ultimate right to recover from Lang. As shown above, GEICO did not act to avail

itself of its rights under the policy. GEICO’s failure to act in its best interest caused or, at least,

contributed to the loss of its subrogation interests when at the time the three-year statute of

limitations expired on February 18, 2005 it had been completely silent. The trial court’s failure

to consider GEICO’s conduct in this regard is error as the doctrine of laches requires a balancing

32

of the equities after considering the knowledge and conduct of all the parties involved. N.H.

Donuts, Inc. v. Skipitaris, 129 N.H. at 783; and See Premier Capital, LLC v. Skaltsis, 155 N.H. at

118-19; and Healey,140 N.H. at 242. Had GEICO directed Mr. Albadry to commence the

litigation in the first instance, this case might be different. However, GEICO ignored its own

policy that gave them the contractual right to request Mr. Albadry to commence suit against Lang

and sat on the sidelines with no intention of doing anything to preserve its rights. It is illogical,

unfair and inequitable to punish Mr. Albadry for failing to maintain the action he commenced

against Lang when he never had the legal nor contractual obligation to file the suit in the first

place. GEICO’s inaction in this regard caused or, at the very least, contributed to the prejudice it

imputes to Mr. Albadry which precludes, as a matter of law, the application of the equitable

doctrine of laches.

In sum, the trial court’s failure to consult GEICO’s policy overlooks the reality that by the

terms of its own contract of insurance GEICO had the right to, but did not, direct Albadry to file

suit prior to February 18, 2005 or re-file his suit prior to November 18, 2006. The prejudice of

which GEICO now complains is at least as much due to its fault as Albadry’s. As such it was

error as a matter of law for the trial court to rely upon the equitable doctrine of laches to grant

GEICO’s motion for summary judgment.

CONCLUSION

The trial court correctly determined that Albadry is “legally entitled” to recover damages

from the uninsured tortfeasor regardless of whether suit may be filed against the tortfeasor as

time barred by either RSA 508:4 or RSA 508:10. Albadry is entitled to judgment as a matter of

law and this case must be remanded for entry of judgment in favor of Albadry and such further

action as is consistent with such an order. The trial court committed reversible error in applying

33

the equitable doctrine of laches as it did not reasonably balance the equities, and GEICO did not

suffer actual prejudice due to any delay caused by Albadry.

Accordingly, the Court must reverse the trial court’s order and find for Mr. Albadry on his

Motion for Summary Judgment.

REQUEST FOR ORAL ARGUMENT

The defendant respectfully requests fifteen minutes of oral argument before the full court

in order to explain and/or clarify any factual or legal issues with regard to this appeal.

Respectfully Submitted,

________________________________John P. Fagan, Esq. Counsel for The Appellant

CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of July 2010 two copies of the foregoing brief and

appendix have been hand delivered to counsel for the Appellee, GEICO Direct.

_________________________________John P. Fagan, Esq. Counsel for The Appellant

ADDENDUM

HILLSBOROUGH COUNTY SUPERIOR COURT MARCH 8, 2010 DECISION ...................................... 35

34

6iv35

R 268

R 269

R 270

R 271

R 272

R 273

R 274

defense when arguing an insured is not legally entitled to recover and therefore not

entitled to UM coverage.

Since the New Hampshire Supreme Court has not addressed this issue, the

Court looks to other jurisdictions for guidance. A survey of the jurisdictions reveals a

majority and minority view. A minority of jurisdictions extend the rule that insurers can

assume the same defenses as the uninsured tortfeasor to procedural or personal

defenses. 2 Auto. Liability Ins. 4th §20:7 (2009). See also Brown v. Lumbermens Mut.

Cas. Co., 204 S.E.2d 829, 833034 (N.C. 1974) (,,[WJhen defendant [insurer] undertooK

'to pay all sums [under the UM provision of the policy] which the insured or his legal

representatives shall be legally entitled to recover' .. .it assumed liability [o]nly for

damages for which plaintiff could recover judgment in a court of law in an action against

the uninsured motorist.").

The majority, however, take the opposite stance.

A majority of courts dealing with the situation in which the statute of limitations for bringing an action against the uninsured motorist has run have held that the 'legally entitled to recover' requirement means simply that the insured must establish fault and damages. Thus, the running of the statute of limitations is not a bar to a uninsured motoristlunderinsured motorist recovery .

. 2 Auto. Liability Ins. 4th §20:7 (2009). See also Ex. Parte Mason, 982 So.2d 520, 521

(Ala. 2007) ("Only the uninsured motorist's substantive defenses are available to the

insurer."); State Farm Mut. Auto. Ins. Co. v. Bennett, 974 So.2d 959, 9f?3 (Ala. 2007)

("However, as previously explained, it is not "any defense" that is available to State

Farm, only substantive defenses.") Burch v. Allstate Ins. Co., 977 P.2d 1057, 1065

(Okla. 199B) ("Even passive destruction of the insurers subrogation rights, such as by

7

R 275

R 276

R 277

R 278

R 279

R 297