STATE OF NEW HAMPSHIRE

SUPREME COURT

2010 TERM - SEPTEMBER SESSION

No. 2010-0218

Abdul Kareem Albadry

v.

GEICO Direct

RULE 7 (l)(A) APPEAL FROM HILLSBOROUGH COUNTY SUPERIOR COURT

DEFENDANT'S BRIEF

GEICO Direct

By its attorneys,

Devine, Milimet & BranchProfessional Association

By: Robert C. Dewhirst, EsquireNHBA# 634

111 Amherst StreetManchester, NH 03101(603) 669-1000rdewhirst(mdevinemillimet. com

TABLE OF CONTENTS

i. Table of Authorities .................................................................... 2

II. Table of Statutes ........................................................................ 3

II. Statement ofIssue Presented ................................................ ............. 5

iv. Statement of Facts .................. ........... ................... ........... ....... ..... 5

V. Standard of Appellate Review ......................................................... 9

Vi. Summary of Argument .. ...... ...... . . .. . .. . .. . .. . .. . . . .. . . . . .. . . .. . .. . .. .. . ... ... .. ... 10

ViI. Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11

A. SUMMARY JUDGMENT is APPROPRIATE WHEN, AS IN THEINSTANT CASE, THERE is NO GENUINE ISSUE OF MATERIALFACT REMAINING FOR TRIAL, AND THE DEFENDANT isENTITLED TO JUDGMENT IN ITS FAVOR AS A MATTER OFLAW ..................................................................................................................... 11

B. THE PLAINTIFF'S ABANDONMENT OF HIS CIVIL LAWSUITAGAINST THE UNINSURED TORTFEASOR WAS IN BREACHOF THE EXPRESS TERMS OF HIS POLICY, AND RESULTED INACTUAL PREJUDICE TO GEICO ................................................... 13

1. GEICO HAD NO LEGAL OBLIGATION OR RIGHT TO TAKEOVER THE PLAINTIFF'S CIVIL LAWSUIT AGAINST THEUNINSURED TORTFEASOR IN THE PLAINTIFF'S ABSENCE ............ 16

2. THE PLAINTIFF'S ARGUMENT THAT THE PROVISIONS OFTHE TRUST AGREEMENT WERE INAPPLICABLE UNTILPAYMENT WAS MADE BY GEICO COMPLETEL YOVERLOOKS NEW HAMPSHIRE LAW WITH RESPECT TOANTICIPATORY BREACH OF CONTRACTS ............................... 19

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3. THE PLAINTIFF'S SUGGESTION THAT GEICO HAD ANOBLIGATION TO REQUEST THAT HE FILE SUIT AGAINSTTHE TORTFEASOR IS ABSURD, GIVEN THE FACT THAT THELAWSUIT HAD ALREADY BEEN FILED, AND THE FACTTHAT GEICO HAD NO WAY OF COMMUNICATING WITHTHE PLAINTIFF . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . 20

C. THE FAILURE OF THE PLAINTIFF TO COMPLY WITH ALL OFTHE TERMS CONTAINED IN HIS GEICO POLICY PRECLUDEHIM, AS A MA TIER OF LAW, FROM MAINTAINING HISDECLARA TORY JUDGMENT ACTION AGAINST GEICO .................... 22

D. IN ADDITION TO BEING CONTRACTU ALL Y BARRED, THEPLAINTIFF'S UNINSURED MOTORISTS COVERAGE CLAIM ISALSO PRECLUDED BY THE EQUITABLE DOCTRINE OFLACHES..................................................................................... 23

E. THE PLAINTIFF'S SUGGESTION THAT HE WAS UNAWARE OFTHE STATUS OF HIS LAWSUIT AND UNINSURED MOTORISTSCOVERAGE CLAIM DURING THE TIME THAT HE RESIDEDOUTSIDE OF THE UNITED STATES IS IRRELEVANT, AND DOESNOT RELIEVE HIM FROM THE CONSEQUENCES OF HISINACTION ..................... .......................................................................... 27

VIII. Conclusion . ..... .. ... . .. . ... .. . ... . . ... . . .. . .. ... . .. . .. . ... .. ... .. . .. . .. . ...... .. . .. ... 28

Rule 16 (3)(h) Request for Oral Argument .................................................. 29

Rule 16 f( 1 0) Certificate of Service ... . . . . ....... ... . .. . . . ... .. .. .. . .. . .. ... . .. ... .. . .. . ... 29

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i. TABLE OF AUTHORITIES

Appeal of City of Laconia, 150 N.H. 91 (2003) 23Charest v. Union Mut. Ins. Co., 113 N.H. 683 (1973) 14,15Community Oil Co. v. Welch, 105 N.H. 320 (1964) 11Del Norte, Inc. v. Provencher, 142 N.H. 535 (1997) 12ERA Pat Desmarais Assocs. v. Alexander Eastman Foundation, 129 N.H. 89,92 (1986) 12

Godbout V. Lloyd'i Insurance Syndicates Messrs. Mendes and Mount, 150 N.H. 103 (2003) 12

Green Mountain Insurance Company v. Bonney, 131 N.H. 762 (1989) 11

Hoyt v. Horst, 105 N.H. 380 (1964) 19In the Matter of State ex ref Reitenour & Montgomery, 148 N.H. 358 (2002) 24

JG.MCJ Corp. v. CL.A.s.s., Inc., 155 N.H. 452 (2007) 9Kirouac v. Healey, 104 N.H. 157 (1962) 14LeTarte v. West Side Development Group, LLC, 151 N.H. 291 (2004) 19

Mailoux v. Town of Londonderry, 151 N.H. 555 (2004) 23McNeal v. Lebel, 157 N.H. 458 (2008) 19Metropolitan Property & Liabilty Insurance Co. v. Walker, 136 N.H. 594 (1993) 16

Morse v. Goduti, 146 N.H. 697 (2001) 12New Hampshire Rules of Professional Responsibilty, Rule 1.8 (f) 18

Philips v. Verax Corp., 138 N.H. 240,243 (1994) 12Raitt v. National Grange Mut. Ins. Co., 111 N.H. 397 (1971) 14Stevens v. Merchants Mut. Ins. Co. of Providence, 135 N.H. 26 (1991) 15Syncom Indus. v. Wood, 155 N.H. 73 (2007) 19Town of Seabrook v. Vachon Management, 144 N.H. 660 (2000) 23

White v. Asplundh Tree Expert Co., 151 N.H. 544 (2004) 9WMUR Channel Nine v. New Hampshire Dept. of Fish and Game, 154 N.H. 446 (2006) 9

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II. TABLE OF STATUTES

RSA 491 :8-a ...................................................................................... 12

491 :8-a. Motions for Summary Judgment.

i. A party seeking to recover upon a claim, counterclaim, or crossclaim, or to

obtain a declaratory judgment, may, at any time after the defendant has

appeared, move for summary judgment in his favor upon all or any part thereof.A party against whom a claim, counterclaim, or crossclaim is asserted or adeclaratory judgment is sought, may, at any time, move for a summaryjudgment in his favor as to all or any part thereof.

II. Any party seeking summary judgment shall accompany his motion with anaffidavit based upon personal knowledge of admissible facts as to which itappears affrmatively that the affiants wil be competent to testify. The factsstated in the accompanying affidavits shall be taken to be admitted for thepurpose of the motion, unless within 30 days contradictory affidavits based onpersonal knowledge are fied or the opposing party files an affidavit showingspecifically and clearly reasonable grounds for believing that contradictoryevidence can be presented at a trial but cannot be furnished by affidavits.Copies of all motions and affidavits shall, upon filing, be furnished to opposingcounselor to the opposing party, if the opposing party is not represented bycounseL.

II. Summary judgment shall be rendered forthwith if the pleadings,depositions, answers to interrogatories, and admissions on file, together withthe affidavits fied, show that there is no genuine issue as to any material factand that the moving party is entitled to judgment as a matter of law. Asummary judgment, interlocutory in character, may be rendered on the issue ofliability alone, although there is a genuine issue as to the amount of damages.

iv. If affidavits are not fied by the party opposing the summary judgment

within 30 days, judgment shall be entered on the next judgment day in

accordance with the facts. When a motion for summary judgment is made andsupported as provided in this section, the adverse party may not rest upon mereallegations or denials of his pleadings, but his response, by affdavits or byreference to depositions, answers to interrogatories, or admissions, must setforth specific facts showing that there is a genuine issue for triaL.

V. If it appears to the court at any time that any of the affdavits presented

pursuant to this section are presented in bad faith or solely for the purpose of

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delay, the court shall forthwith order the party presenting them to pay to theother party the amount of the reasonable expenses which the filing of theaffidavits caused him to incur, including reasonable attorney's fees. Any

offending party or attorney may be found guilty of contempt.

RSA 508:4 ................................................................................................................. 5, 8

508:4. Personal Actions

i. Except as otherwise provided by law, all personal actions, except actions forslander or libel, may be brought only within 3 years of the act or omissioncomplained of, except that when the injury and its causal relationship to the actor omission were not discovered and could not reasonably have been

discovered at the time of the act or omission, the action shall be commencedwithin 3 years of the time the plaintiff discovers, or in the exercise ofreasonable diligence should have discovered, the injury and its causalrelationship to the act or omission complained of.

II. Personal actions for slander or libel, unless otherwise provided by law, maybe brought only within 3 years of the time the cause of action accrued.

RSA508:10 ............................................................................................................ 5,8,14

508:10. Second Suit

If judgment is rendered against the plaintiff in an action brought within the timelimited therefor, or upon a writ of error thereon, and the right of action is notbarred by the judgment, a new action may be brought thereon in one year afterthe judgment.

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II. STATEMENT OF ISSUE PRESENTED

WHETHER THE SUPERIOR COURT PROPERLY GRANTED GEICO DIRECT'S

MOTION FOR SUMMARY JUDGMENT (AND PROPERLY DENIED THE

PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT), WHERE THE

PLAINTIFF HAD VOLUNTARILY ABANDONED HIS PENDING CIVIL ACTION

AGAINST THE UNINSURED TORTFEASOR WITHOUT GEICO'S CONSENT, AND

WHERE HE HAD CEASED COMMUNICA TING WITH BOTH HIS OWN

ATTORNEY AND GEICO REGARDING HIS UNINSURED MOTORISTS

COVERAGE CLAIM FOR A PERIOD OF NEARLY FOUR YEARS.

III. STATEMENT OF FACTS AND CASE

The instant Rule 7(1)(A) appeal arose out of a declaratory judgment action in which

the plaintiff sought a determination that GEICO Direct (hereinafter referred to as "GEICO"

was obligated to provide uninsured motorists benefits to him as a result of an automobile

accident that occurred on 18 February 2002 in Belmont, New Hampshire. On the day of the

accident at issue, the plaintiffs vehicle was rear-ended by a vehicle operated by a William

Lang. The plaintiff has alleged (and it is uncontested) that Mr. Lang was uninsured at the time

of the accident. Petition for Declaratory Judgment (hereinafter referred to as "Petition") at iiii

4-7 (Appellant's Appendix, at p. R 2-3.)

Shortly after the accident, the plaintiff retained Attorney Paul Fitzgerald of Laconia to

represent him in his claims for bodily injuries allegedly arising out of the accident. Following

his retention by the plaintiff, Attorney Fitzgerald informed GEICO of the plaintiffs intent to

assert a claim for benefits pursuant to the uninsured motorists coverage afforded by the

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automobile insurance policy issued by GEICO to the plaintiff. Petition, at iiii 10, 12.

(Appellant's Appendix, at p. R 3.)

In December of 2003, the plaintiff voluntarily left the United States and moved to

Syria. Petition, at ii 13. (Appellant's Appendix, at p. R 3.) Between December of 2003 and

May of 2008, when he returned to the United States, the plaintiff lived at various locations in

Syria, Iraq, Jordan, and Egypt. Albadry Deposition Transcript, at p. 32-57. (Appellant's

Appendix, at p. R 72-78.)

Significantly, the plaintiff has admitted that during the entire time that he was living in

Iraq, Jordan and Egypt (between mid-2004 and 2008), he made no attempt whatsoever to

contact Attorney Fitzgerald. Albadry Deposition Transcript, at p. 44-45, 60, 69. (Appellant's

Appendix, at p. R 75, 79, 81.) Similarly, he has admitted that he made no attempt to contact

GEICO regarding his uninsured motorists coverage claim. Albadry Deposition Transcript, at

p.77-78. (Appellant's Appendix, at p. R 83-84.)

On or about 17 February 2005, Attorney Fitzgerald filed a civil action on behalf of the

plaintiff and against the tortfeasor, styled Abdul Kareem Albadry v. Wiliam Lang, Belknap

County Superior Court Civil Docket No. 05-C-0049, (hereinafter referred to as the "Lang

litigation"). Petition, at p. ii16. (Appellant's Appendix, at p. R 4.) Through that litigation, the

plaintiff sought an award of damages for the bodily injuries that he claimed to have received in

the collision.

On 28 September 2005, Attorney Fitzgerald filed a motion with the Belknap County

Superior Court, in which he requested permission to withdraw from further representing the

plaintiff in the Lang litigation. (Appendix to Appellant's Brief, at p. R 105-106.) As grounds

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for his motion, Attorney Fitzgerald cited the plaintiffs total unresponsiveness since February

of2005, asserting that:

"(sJince at least February, 2005, the undersigned has attempted without

success to contact the plaintiff by mail, fax or telephonically at contacts

previously provided in writing by the plaintiff. All efforts at direct contact

since February, 2005 have been futile; ..."

In his motion, Attorney Fitzgerald also referred to mail and fax communication with the

plaintiff, and provided the court with the plaintiff s last known address in Syria. As a part of

the relief sought in his motion, Attorney Fitzgerald requested that the court remove the case

from the docket until such time as the plaintiff or his representative contacted the court.

On 20 October 2005, the Belknap County Superior Court granted Attorney Fitzgerald's

request to withdraw, but denied his request to remove the case from the active docket pending

communication from the plaintiff. Petition at ii 20. (Appellant's Appendix, at p. R 4.) The

court subsequently sent a Rule 20 notice to the plaintiffs last known address, and informed

him of the need to file an appearance on or before 14 November 2005. (Appellant's

Appendix, at p. R 109-111.) The plaintiff failed to comply with the Rule 20 notice, and on 18

November 2005, the court dismissed the Lang litigation. Petition at ii 21. (Appellant's

Appendix, at p. R 112-114.) The plaintiff did not re-fie his action against Mr. Lang within

one year of the dismissal, as permitted under RSA 508: 1 0, and as a result, all of the plaintiff s

claims against the uninsured tortfeasor became time-barred as of 18 November 2006. See

RSA 508:4 and RSA 508:10.

In May of 2008, (more than three years after he had ceased all communication with his

attorney) the plaintiff reappeared in the United States and retained new legal counseL. When

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his new counsel attempted to revive the abandoned uninsured motorists coverage claim, the

claim was denied by GEICO, and a declaratory judgment action was commenced on behalf of

the plaintiff.

On or about 14 December 2009, GEICO filed a motion for summary judgment.

(Appellant's Appendix, at p. R 52-126.) A day later, the plaintiff filed a cross-motion for

summary judgment. (Appellant's Appendix, at p. R 127-187.) Timely objections were filed in

response to each motion, and on 8 March 2010, the Hilsborough County Superior Court,

Northern District, (Abramson, J.) granted GEICO's motion for summary judgment, and denied

the plaintiffs cross-motion, concluding that the plaintiffs action was barred by the equitable

doctrine of laches. (Appellant's Appendix, at p. R 267-279.) The plaintiff subsequently filed

a motion for reconsideration, which was denied on 30 March 2010. (Appellant's Appendix, at

p. R 297.) The instant Rule 7 (1)(A) appeal followed.

iv. STANDARD OF APPELLATE REVIEW

In reviewing a trial court's granting of summary judgment, the Supreme Court

conducts a de novo review of the trial court's application of the law to the facts. The court

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

the light most favorable to the non-moving party. If the Supreme Court's review of the

evidence does not reveal any genuine issue of material fact, and if the moving party is entitled

to judgment as a matter of law, then it will affrm the trial court's decision. J G.M CJ Corp.

v. CL.A.SS, Inc.) 155 N.H. 452 (2007), WMUR Channel Nine v. New Hampshire Dept. of

Fish and Game, 154 N.H. 446 (2006), White v. Asplundh Tree Expert Co.) 151 N.H. 544

(2004).

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V. SUMMARY OF ARGUMENT

It defies common sense to believe that someone could (as the plaintiff has admitted

that he did) voluntarily disappear for nearly four years; cease all communication with his

attorney, and the superior court; allow their pending lawsuit against the uninsured tortfeasor

to be dismissed with prejudice; and completely ignore their pending uninsured motorists

coverage claim, without bearing the consequences of that neglect.

The plaintiffs admitted total lack of communication with his attorney for a period of

nearly four years, led directly to the dismissal, with prejudice, of his pending civil litigation

against the uninsured tortfeasor. The abandonment of the claim against the tortfeasor was in

direct breach of the plaintiffs contractual obligations to secure all rights of recovery against

the tortfeasor, and to refrain from doing anything after the loss that would prejudice those

rights. His failure to comply fully with those terms of the policy contractually precludes him

from seeking uninsured motorists coverage benefits through the instant equity action.

In addition to the contractual bar to his declaratory judgment action, the plaintiffs

uninsured motorists coverage claim is also barred by the equitable doctrine of laches. The

plaintiffs unreasonable delay in communicating with his attorney and GEICO regarding his

claim against the tortfeasor, and regarding his uninsured motorists coverage claim, resulted in

actual prejudice to GEICO. By sitting on his rights for nearly four years (mid-2004 to May of

2008), the plaintiff deprived GEICO of the ability to seek recovery from the tortfeasor, and of

the opportunity to conduct a meaningful investigation into the merits of the uninsured

motorists coverage claim. The plaintiff submitted no contradictory evidence under oath (as

required by RSA 491 :8-a) rebutting GEICO's allegations of actual prejudice resulting from

the delay, and consequently, the superior court was obligated to take those allegations of

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prejudice to be true.

In urging this court to reverse the entry of summary judgment in favor of GEICO, the

plaintiff would have this court suspend completely its sense of reality, and embrace the

fantasy that he was available to respond to discovery requests, participate in a deposition;

submit to medical examinations; and appear at triaL. It is, however, undisputed that he was

not. Neither his attorney, nor the Belknap County Superior Court, nor GEICO, had any way

to contact the plaintiff while he was voluntarily residing in the Middle East between 2004 and

2008. That situation was created solely by the plaintiffs own failure to communicate.

There are no genuine issues of material fact remaining for triaL. The plaintiff is

precluded, both contractually and equitably, from maintaining the instant declaratory

judgment action. GEICO was (and is) entitled to summary judgment in its favor, as a matter

of law. The order of the Hilsborough County Superior Court granting GEICO's motion for

summary judgment, and denying the plaintiffs cross-motion, should be affrmed.

VI. ARGUMENT

A. SUMMARY JUDGMENT is APPROPRIATE WHEN, AS IN THE INSTANT CASE,THERE is NO GENUINE ISSUE OF MATERIAL FACT REMAINING FOR TRIAL,AND THE DEFENDANT is ENTITLED TO JUDGMENT IN ITS FAVOR AS AMATTER OF LAW

Summary judgment is a procedure designed to save time, effort, and expense and to

streamline the administration of justice by avoiding the formal trial of cases where there is no

genuine issue of material fact. Green Mountain Insurance Company v. Bonney, 131 N.H. 762

(1989), Community Oil Co. v. Welch, 105 N.H. 320 (1964). In ruling on a motion for

summary judgment, the superior court is "obligated to grant summary judgment if, after

11

considering all the evidence presented in the light most favorable to the non-moving party, no

genuine issue of material fact exist( s J and the moving party (is J entitled to judgment as a

matter of law." Godbout v. Lloyds Insurance Syndicates Messrs. Mendes and Mount, 150

N.H. 103 (2003), Morse v. Goduti, 146 N.H. 697 (2001); Del Norte, Inc. v. Provencher, 142

N.H. 535 (1997), RSA491:8-a.

A party opposing summary judgment may not rest upon general denials or allegations,

but must set forth specific facts showing that a genuine issue remains for triaL. ERA Pat

Desmarais Assocs. v. Alexander Eastman Foundation, 129 N.H. 89, 92 (1986). In addition, a

party opposing summary judgment must present contradictory evidence under oath sufficient

to indicate that a genuine issue of material fact exists. RSA 491:8-a, Philips v. Verax Corp.,

138 N.H. 240, 243 (1994). In the absence of any contradictory evidence under oath, the

sworn allegations of the moving party are deemed to be admitted. RSA 491 :8-a II.

Given the undisputed and/or un-rebutted facts of the case, no genuine issue of material

fact remained for trial, and GEICO was entitled to judgment in its favor as a matter of law.

The plaintiff is precluded, by both the terms of his GEICO policy, and by the equitable

doctrine of laches, from maintaining a declaratory judgment action for coverage. The superior

court properly granted GEICO's motion for summary judgment, and properly denied the

plaintiffs cross-motion. That decision should be affrmed.

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B. THE PLAINTIFF'S ABANDONMENT OF HIS CIVIL LAWSUIT AGAINST THEUNINSURED TORTFEASOR WAS IN BREACH OF THE EXPRESS TERMS OF HISPOLICY, AND RESULTED IN ACTUAL PREJUDICE TO GEICO

Under the terms and conditions of the uninsured motorists coverage feature of the

plaintiffs GEICO policy, the plaintiff was contractually obligated to protect all rights of

recovery against the tortfeasor, and to do nothing after the loss that would prejudice those

rights. The policy provides in relevant part:

TRUST AGREEMENT

When we make a payment under this Coverage:

1. We wil be entitled to repayment of that amount out of any settlement orjudgment the insured recovers from any person or organization legallyresponsible for the bodily injury.

2. The insured wil hold in trust for our benefit all rights of recoverywhich he may have against any person or organization responsible forthese damages. He will do whatever is necessary to secure all rightsof recovery and wil do nothing after the loss to prejudice these rights.

SECTION IV, Uninsured Motorists Coverage, at Page 11 of 14 (emphasisadded). (Appellant's Appendix, p. R 37.)

It should be readily apparent to the court that the purpose of these provisions is to

ensure that GEICO wil be able to seek reimbursement from the tortfeasor of any uninsured

motorists coverage benefits that GEICO might pay to its insured. Such provisions are

intended to protect the insurer's right of subrogation, and have been held by the New

Hampshire Supreme Court to be a valid restriction on uninsured motorists coverage.

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In Charest v. Union Mut. Ins. Co., 113 N.H. 683 (1973), the Supreme Court held that

policy provisions which stated that the insured "shall do nothing after loss to prejudice ...

rights of the insurer" were a valid restriction on uninsured motorists coverage. In so holding,

the court noted that "(tJhis agreement is similar to a subrogation clause and is designed to

confer on the insurer to the extent of any payment made by it the subrogation right to all

recovery from the uninsured motorist until the company has been reimbursed" (citing Raitt v.

National Grange Mut. Ins. Co., 111 N.H. 397 (1971), and Kirouac v. Healey, 104 NoH. 157

(1962).)

Pursuant to the foregoing terms of the insuring agreement, the plaintiff was obligated

to do whatever was necessary for him to preserve the right of recovery against the uninsured

tortfeasor, in this case, William Lang. However, he failed to do so. The plaintiff has admitted

under oath that after retaining Attorney Fitzgerald to represent him in connection with his

accident with Mr. Lang, he voluntarily moved out of the United States, and for a period of

over (4) years thereafter remained outside of the country. He has also admitted that during all

of that time (with the exception of a few phone calls to Attorney Fitzgerald in early 2004

while living in Syria), he made absolutely no attempt whatsoever to contact either his attorney

or GEICO. Albadry Deposition Transcript, at p. 44-45, 60, 69, 77-78. (Appellant's

Appendix, at p. R 75, 79, 81, 83-84.) As a result of the plaintiffs admitted neglect of his

pending legal matters, his lawsuit against the uninsured tortfeasor was dismissed.

Although the plaintiff could have re-filed the Lang litigation within a year of its

dismissal, his continuing failure to take any steps to communicate with Attorney Fitzgerald

and/or GEICO resulted in the one-year saving period afforded by RSA 508:10 being allowed

to expire. The right of recovery against the tortfeasor is now forever time-barred, thereby

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eliminating entirely the plaintiffs right of action against the tortfeasor and GEICO's right of

subrogation. By abandoning the Lang litigation, the plaintiff failed to "do whatever is

necessary to secure all rights of recovery", as he was contractually obligated to do under the

terms of his uninsured motorist coverage, thereby breaching his contract with GEICO. In

addition, his abandonment of the claim against the tortfeasor was in breach of the plaintiff s

express contractual obligation to refrain from doing anything after the loss that would

prejudice those rights. As a result of the plaintiffs abandonment of the Lang litigation, the

recovery rights of the plaintiff and GEICO were destroyed.

It is worth noting that the instant case is analogous to a situation in which an insured

settles his action against an uninsured tortfeasor without first obtaining the consent of the

insurer. In those circumstances, the New Hampshire Supreme Court has held repeatedly that

the failure of the insured to obtain the consent of the insurer prior to settling a suit against the

tortfeasor operates as a complete bar to uninsured motorists coverage. Moreover, this court

has held that that barring of coverage is not dependent on whether the right of subrogation

would eventually result in a reimbursement. No showing of prejudice to the insurer is

required. Charest v. Union Mut. Ins. Co., 113 N.H. 683 (1973); Stevens v. Merchants Mut.

Ins. Co. of Providence, 135 N.H. 26 (1991). In light of these prior Supreme Court decisions,

it is difficult to imagine why the same result would not obtain in a situation where, as in the

instant case, an uninsured motorists coverage claimant outright abandons his claim against the

tortfeasor without the insurer's consent to do so.

The plaintiff seems to confuse GEICO's position on this point, suggesting that it

amounts to a pure statute of limitations defense. Brief of Appellant, pp. 29-32. However, this

is a misunderstanding of GEICO's legal stance. The undersigned counsel is well-aware of the

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court's decision in Metropolitan Property & Liability Insurance Co. v. Walker, 136 N.H. 594

(1993), and has never argued that either the three-year statute of limitations, or the one-year

saving statute, alone, bars the plaintiffs uninsured motorist claim. Rather, it is GEICO's

position that it was materially prejudiced by the plaintiffs filing of the lawsuit against the

uninsured tortfeasor, and then allowing it to be dismissed, without affording GEICO any

meaningful opportunity to take some timely corrective action. The superior court clearly

understood this distinction. (Appellant's Appendix, p. 277-278.)

GEICO concedes that if the suit against the tortfeasor had never been fied by the

plaintiff then the statute of limitations, by itself, would not bar the plaintiff s uninsured

motorists claim. However, as the court is undoubtedly aware, that is not what happened in

this case. What did happen was that the plaintiff, through his own neglect in communicating

with his legal counsel, the court and/or GEICO, allowed the pending suit against the tortfeasor

to be dismissed during a time when the plaintiff was completely unavailable to assist GEICO

in taking over that litigation. In fact, he remained incommunicado for another two and a half

years after the dismissal had been entered. It was that neglect, resulting in dismissal of the

Lang litigation, that caused actual prejudice to GEICO, and constituted a violation of the

express terms of the policy. And it was that same neglect and resulting dismissal that

supported the application of the equitable doctrine of laches by the superior court.

1. GEICO HAD NO LEGAL OBLIGATION OR RIGHT TO TAKE OVER THEPLAINTIFF'S CIVIL LAWSUIT AGAINST THE UNINSURED TORTFEASORIN THE PLAINTIFF'S ABSENCE

The plaintiff spends much of his brief attempting to shift to GEICO the responsibility

for his own four years of neglect. In furtherance of that effort, he suggests, without the

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benefit of any legal support whatsoever, that GEICO should have taken over the Lang

litigation after Attorney Fitzgerald had withdrawn. This argument is fatally flawed on

multiple levels.

First, GEICO had no attorney-client relationship with the plaintiff at the time that the

Lang litigation was dismissed. No New Hampshire attorney could have ethically fied a

substitute appearance for the plaintiff in the Lang litigation (or re- filed the litigation after it

was dismissed) without first having been retained by the plaintiff. So, even if GEICO

believed that it did have some obligation to take over the litigation (which it clearly did not),

in the absence of any means to communicate with the plaintiff between the dismissal in 2005

and the time that the plaintiff re-surfaced in 2008, there was no way that an attorney-client

relationship could have been established.

Second, is the fact that the inherent conflict of interest between the plaintiff s position

and GEICO's position relative to the uninsured motorists coverage claim would have ethically

precluded any attorney hired by GEICO from appearing on behalf of the plaintiff and taking

over the Lang litigation. In an uninsured motorists coverage proceeding, the positions of the

insured and the uninsured motorists carrier are adversarial, with the position of the carrier

typically being more closely aligned with that of the uninsured tortfeasor. For example, it is

in the best interests of the UM carrier to have the uninsured motorist be found not liable for

the accident, and/or the insured be found to have some comparative fault. It is also in the best

interests of the UM carrier to have the insured's injuries and damages determined to be not

causally related to the accident with the uninsured motorist.

In light of that unavoidable reality, it would have been impermissible under the New

Hampshire Rules of Professional Conduct for any attorney hired by GEICO to represent the

17

plaintiff in connection with his civil against the tortfeasor, without first obtaining a knowing

waiver of the potential conflict of interest. (See New Hampshire Rules of Projèssional

Conduct, Rule 1.8 (f), which requires informed consent from the client.) However, even if the

conflict of interest could have been waived, there was no way that the requisite waiver could

have been obtained, given the plaintiff had remained incommunicado for two ¡and half years

after the dismissal had been entered. Although plaintiff argues at length in his brief that

GEICO should have taken over the Lang litigation, his argument is deafeningly silent as how

this palpable conflict of interest could have been resolved without the plaintiff s participation.

Third, even if the obvious ethical impediments to substitute representation by GEICO

in the Lang litigation were not present, the practical impediment to anyone's either continuing

or re-filing that litigation was that the plaintiff had ceased communicating with his legal

representative. The plaintiff admitted at deposition that he made no attempt to contact either

Attorney Fitzgerald or GEICO from mid-2004 through May of 2008. Given that lack of

communication and his physical absence from the country, the plaintiff was quite obviously

not going to be in a position to respond to discovery requests; participate in a deposition;

submit to an independent medical examination; and/or participate in the jury trial of his case

(which had been scheduled for the week of 10 April 2006). As a purely practical matter, it

made no difference whether Attorney Fitzgerald piloted the sinking ship to the bottom, or

whether GEICO stepped on board as it floundered and sank. Regardless of who represented

the plaintiff, the Lang litigation was doomed to failure by the plaintiffs voluntary four-year

disappearance and neglect of the litigation.

Clearly, for GEICO to have taken over the Lang litigation would have been ethically

impermissible, and factually impossible. The plaintiffs suggestion that GECIO should/could

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have stepped into the Lang litigation and saved him from his own neglect, is simply

unsupported by any legal authority or facts provided in his brief.

2. THE PLAINTIFF'S ARGUMENT THAT THE PROVISIONS OF THE TRUSTAGREEMENT WERE INAPPLICABLE UNTIL PAYMENT WAS MADE BYGEICO COMPLETEL Y OVERLOOKS NEW HAMPSHIRE LAW WITHRESPECT TO ANTICIPATORY BREACH OF CONTRACTS

In the superior court proceedings below, the plaintiff made the argument that the

provisions of the Trust Agreement (requiring him to protect all rights of recovery against the

tortfeasor) are inapplicable because GEICO had not yet paid him any uninsured motorists

coverage benefits. However, this argument completely overlooks the controllng New

Hampshire case law with respect to anticipatory breach of contracts.

It is well-settled in New Hampshire law that "an anticipatory breach of contract occurs

when a promising party repudiates his obligations either through words or by voluntarily

disabling himself from performing them before the time for performance." McNeal v. Lebel,

157 N.H. 458 (2008), Syncom Indus. v. Wood, 155 N.H. 73 (2007), LeTarte v. West Side

Development Group, LLC, 151 N.H. 291 (2004), Hoyt v. Horst, 105 N.H. 380 (1964). In

fact, that is precisely what the plaintiff in the instant litigation did when he abandoned his

pending claim against the tortfeasor.

By abandoning his pending lawsuit and allowing it to be dismissed with prejudice, the

plaintiff voluntarily disabled himself from securing all rights of recovery against the

tortfeasor, as he was obligated to do under the terms of the policy. The abandonment of the

action against the tortfeasor amounted to a repudiation of the Trust Agreement, and

constituted an anticipatory breach of the plaintiff s contractual obligation to protect that right

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of recovery. Obviously, once the plaintiff allowed his action against the tortfeasor to be

dismissed with prejudice, there was no way that he could ever fulfill that contractual

obligation, and an anticipatory breach occurred.

On this same point, it should be noted that in arguing his own construction of the Trust

Agreement, the plaintiff would have the court completely ignore the included phrase "and wil

do nothing after the loss to prejudice these rights." If the plaintiffs construction were

accurate, then the provision would read ... "and wil do nothing after payment is made to

prejudice their right." Clearly, however, the duty to protect the right of recovery begins with,

and runs continuously from the date of the loss, not the date of any payment. The plaintiff s

suggestion that he was free to ignore the terms of the Trust Agreement until payment was

actually made, subverts the obvious intent of that provision.

3. THE PLAINTIFF'S SUGGESTION THAT GEICO HAD AN OBLIGATION TOREQUEST THAT HE FILE SUIT AGAINST THE TORTFEASOR IS ABSURD,GIVEN THE F ACT THAT THE LAWSUIT HAD ALREADY BEEN FILED,AND THE FACT THAT GEICO HAD NO WAY OF COMMUNICATING WITHTHE PLAINTIFF

The plaintiffs suggestion in his motion for summary judgment that GEICO never

asked him to take any action against the tortfeasor is absurd. Through counsel, he had filed

suit directly against tortfeasor. Obviously, it would have been pointless for GEICO to have

requested the plaintiff to file suit when that had already been done, and a lawsuit against the

tortfeasor was pending. Moreover this argument ignores the fact that, pursuant to the terms

and conditions of the GEICO policy, the plaintiff was obligated to protect GEICO's right of

subrogation. At noted above, the policy expressly required the plaintiff to "... do whatever is

necessary to secure all rights of recovery and '" do nothing after the loss to prejudice these

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rights.)) SECTION iv, Uninsured Motorists Coverage, at Page 11 of 14 (emphasis added).

(Appellant's Appendix, p. R 37.)

In light of this provision, the plaintiff cannot seriously contend in this court that he

was free to allow his lawsuit against the tortfeasor to be dismissed, with prejudice, simply

because GEICO had not requested him to fie the suit. Once the plaintiffs lawsuit was filed

and GEICO was advised of that fact, GEICO certainly had every right to reasonably expect

that the plaintiff would continue to prosecute the lawsuit, and not allow it to be dismissed.

Whether the plaintiff initiated the lawsuit on his own, or whether it was done at the request of

GEICO, is a distinction without a difference. The fact of the matter is that the lawsuit was

filed, and once it was fied, the plaintiff was contractually obligated to refrain from doing

anything to prejudice that action.

Along this same line of argument, the plaintiff attempts to fault GEICO for not having

requested that he re- fie the civil action after it had been dismissed under Superior Court Rule

20. The argument simply ignores reality. While the argument might develop some traction if

Mr. Albadry had been around to participate in a re- filed lawsuit, the undisputed fact of the

case is that he was not. It is admitted that he was out of the country, and remained

incommunicado for nearly two and a half years after the Rule 20 dismissal had been entered.

Exactly how did the plaintiff expect GEICO to communicate the request to him, when all

attempts by Attorney Fitzgerald and the Belknap County Superior Court to contact him had

failed? The notion that GEICO had an obligation to send (more) dead letters to the Syrian

address is, of course, ridiculous.

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C. THE FAILURE OF THE PLAINTIFF TO COMPLY WITH ALL OF THE TERMSCONTAINED IN HIS GEICO POLICY PRECLUDE HIM FROM MAINTAININGHIS DECLARATORY JUDGMENT ACTION AGAINST GEICO, AS A MATTER OFLAW

Although the superior court did not each this particular issue in granting summary

judgment for GEICO, it was, and continues to be, GEICO's position that the express terms of

the contract operate as a bar to the plaintiffs declaratory judgment action against GEICO. As

explained in Section B, above, the plaintiff s failure to protect the right of recovery against the

tortfeasor was in direct violation of the Trust Agreement. As a direct result of the

abandonment of the Lang litigation, both the plaintiff and GEICO are now precluded from

pursuing the uninsured tortfeasor to recover any sums that GEICO might have paid to the

plaintiff under the provisions of his uninsured motorists coverage. As such, GEICO has, as a

matter of law, been prejudiced by the plaintiff s abandonment of the claim, in violation of the

terms of the policy.

The plaintiff s failure to fully comply with the terms of his policy precludes him, as a

matter of law, from maintaining the instant declaratory action. The policy issued by GEICO

to the plaintiff expressly provides that:

"Suit wil not lie against us unless the insured or his legal

representative have fully complied with all the policy terms"

SECTION iv, Uninsured Motorists Coverage, at Page 12 of 14.(emphasis added).

As discussed in Section B, above, the plaintiff (through counsel) affrmatively

undertook to seek recovery from the tortfeasor, but then abandoned that action, allowing it to

be dismissed with prejudice. This was done so at a time when GEICO, by the plaintiffs own

22

admission, had no ability to communicate with him. Inasmuch as the plaintiff has failed to

protect the right of recovery against the tortfeasor, and has affirmatively prejudiced that right

by allowing his claim to be dismissed, he is contractually precluded from maintaining the

instant equity action seeking coverage.

The plaintiff has not complied with all of the terms of the policy, and therefore, by the

express term of the policy, no action can be maintained against GEICO. Failure to comply

with the contractual provisions entitles GECIO to judgment in its favor as a matter of law.

Once the superior court found that GEICO had been prejudiced by the plaintiffs delay,

(Appellant's Appendix, p. 277.), then a violation of the terms of the Trust Agreement had

been conclusively established, and the plaintiff was contractually barred from maintaining any

suit against GEICO.

D. IN ADDITION TO BEING CONTRACTUALLY BARRED, THE PLAINTIFF'SUNINSURED MOTORISTS COVERAGE CLAIM is ALSO PRECLUDED BY THEEQUITABLE DOCTRINE OF LACHES

The equitable doctrine of laches bars litigation when a potential plaintiff has slept on

his or her rights. Appeal of City of Laconia, 150 N.H. 91 (2003). Laches will constitute a bar

to suit if the party asserting the defense shows that the delay was both unreasonable and

prejudiciaL. See Town of Seabrook v. Vachon Management) 144 N.H. 660 (2000). The trial

court has wide latitude in deciding whether the circumstances justify application of the

doctrine of laches, and unless the trial court's decision is unsupported by the evidence or

erroneous as a matter of law, the Supreme Court will not overturn its decision. Mailoux v.

Town of Londonderry, 151 N.H. 555 (2004), In the Matter of State ex ref. Reitenour &

23

Montgomery, 148 N.H. 358 (2002).

In the plaintiffs brief, he makes the conclusory allegation that GEICO has not been

prejudiced by the plaintiff s failure to diligently pursue his claim against the tortfeasor and/or

his uninsured motorists coverage claim. However, quite to the contrary, GEICO was, in fact

prejudiced on two separate fronts by the plaintiff s inaction, and the superior court so found.

First, with respect to his lawsuit against the tortfeasor, the plaintiffs unreasonable

delay in communicating with his attorney and/or the Belknap County Superior Court resulted

in the dismissal, with prejudice, of that claim. As detailed above, the dismissal of that action

forever destroyed the ability of GEICO to recover from the tortfeasor amounts that it might

have been required to pay to the plaintiff in uninsured motorists coverage benefits. Even in

the absence of a contractual duty, the plaintiff had an equitable duty not to squander the tort

action that he had fied against the tortfeasor. But that is exactly what he did. The near four-

year delay in communicating with his attorney was unreasonable, inexcusable, and as a matter

oflaw, resulted in actual prejudice to GEICO by virtue of the dismissaL.

Based on the tortfeasor's comments to Attorney Kilibarda, it was apparent that the

tortfeasor had some personal assets that could have been used to satisfy at least a portion of a

judgment against him. See Affidavit of Holly J Kilibarda (Appellant's Appendix, p. 213-

260). In light of the existence of those personal assets, GEICO would not have given the

plaintiff permission to settle or abandon the suit against the tortfeasor. Affidavit of Ciandre

Taylor (Appellant's Appendix, p. 261-265). The plaintiff's abandonment of the pending

claims against the tortfeasor effectively precluded GEICO from ever recovering from the

tortfeasor monies that it might eventually have been required to pay to the plaintiff as

uninsured motorists coverage benefits.

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Second, the plaintiff's unreasonable four-year delay in pursumg his uninsured

motorists coverage claim also resulted in actual prejudice to GEICO. As a part of its attempt

to investigate the plaintiff s UM claim, its retained counsel, Holly J. Kilabarda, Esquire,

propounded a set of interrogatories to the plaintiff in June of 2005. The interrogatories

requested specific information regarding the plaintiffs claim, and included a number of

authorizations through which GEICO sought to obtain medical, employment and wage

information. In spite of the fact that GEICO was entitled to receive this information, the

plaintiff never responded to the interrogatories and never executed the authorizations. As a

result, GEICO was (and stil is) deprived of the opportunity to gather timely information that

would either substantiate or refute the plaintiffs claims. See Affidavit of Holly J Kilibarda

(Appellant's Appendix, p. 213-260) and Affidavit of Ciandre Taylor (Appellant's Appendix,

p.261-265).

GEICO has been further prejudiced by virtue of the fact that the plaintiff's voluntary

absence and unreasonable four-year delay in pursuing his claim have precluded it from having

one or more independent medical examinations performed on the plaintiff, in order to

determine which, if any, of his claimed injuries were actually related to the automobile

accident in question. The policy specifically provides:

"The injured person wil submit to examination by doctors chosen

by us, at our expense, as we may reasonably require. In the eventof the insured's incapacity or death, his legal representative must,at our request, authorize us to obtain medical reports and copies

of records."

SECTION iv, Uninsured Motorists Coverage, at Page 12 of 14.(emphasis added).

25

Had the plaintiff been communicating with GEICO regarding his claim, GEICO

would have likely requested that he submit to one or more independent medical examinations.

Affidavit of Holly J Kilibarda and Affdavit of Ciandre Taylor, supra. The inability to have

timely examinations conducted between 2004 (when Attorney Fitzgerald submitted his

demand letter) and 2008 (when the plaintiff returned from Egypt) has resulted in actual

prejudice to GEICO. Although the plaintiff argues in this brief that GEICO suffered no

prejudice because it never requested an examination, this contention once again ignores the

(admitted) practical reality that he was not available to receive such a request, had one been

made, nor was he available to submit to an examination, while he remained outside of the

country (and incommunicado) between mid-2004 and 2008. It also ignores the fact that

GEICO had been requesting information regarding the plaintiffs alleged injuries since 2005,

when it sent interrogatories and medical authorization to the plaintiffs attorney.

Although the plaintiff has offered unsupported denials as to why he believes that

GEICO was not prejudiced by his delay in pursuing his uninsured motorists coverage claim,

he submitted no contradictory evidence under oath to the superior court (as required by RSA

491:8-a) to rebut Attorney Kilibarda's and Ms. Taylor's allegations of actual prejudice

resulting from the delay. Of course, such unsupported denials are insufficient to create a

genuine issue of material fact. In the absence of any contradictory affdavits, the factual

allegations contained in the Killabarda and Taylor affidavits are deemed to be admitted for the

purpose of the summary judgment motions. RSA 491 :8-a II. Hence, the superior court's

finding of prejudice was justified, and the application of the doctrine of laches was not only

appropriate, but required.

26

E. THE PLAINTIFF'S SUGGESTION THAT HE WAS UNAWARE OF THE STATUSOF HIS LAWSUIT AND UNINSURED MOTORISTS COVERAGE CLAIM DURINGTHE TIME THAT HE RESIDED OUTSIDE OF THE UNITED STATES ISIRRELEVANT, AND DOES NOT RELIEVE HIM FROM THE CONSEQUENCES OFHIS NEGLECT

Finally, it worth noting that the plaintiff seems to suggest in his cross-motion for

summary judgment, his supporting affidavit, and his brief that his voluntary absence from the

United States, and alleged lack of knowledge regarding the status of his lawsuit against the

uninsured tortfeasor and his uninsured motorists coverage claim, somehow relieve him of the

consequences of his inaction. Notwithstanding this suggestion, however, nowhere in the

plaintiff s motion does he provide any legal or factual support for the proposition that failing

to communicate with Attorney Fitzgerald and GEICO for nearly four years was not

unreasonable. These allegations are irrelevant to the cross-motions for summary judgment

and the instant appeaL.

The plaintiff testified unequivocally at his deposition that he made no attempt

whatsoever to contact either his attorney or GEICO between mid-2004 and May of 2008.

Albadry Deposition Transcript, at p. 44-45, 60, 69, 77-78. (Appellant's Appendix, at p. R 75,

79, 81, 83-84.) If the plaintiff was lacking in knowledge regarding the status of his lawsuit

and uninsured motorists claim, then it was simply because he made no effort to make contact

with anyone. All the plaintiff needed to do was contact his attorney, the Belknap County

Superior Court or GEICO to alert them to his change of address.

The plaintiff has admitted that he made a change of address notification to the United

States Social Security Administration on a number of occasions, so that he could continue to

receive his disability checks while residing in Syria, Iraq, Jordan and Egypt. Albadry

27

Deposition Transcript, at p. 47-48, 50-51, 57-58. (Appellant's Appendix, at p. R 76,77,78-

79.) Under those circumstances, there was absolutely no reason (and indeed, the plaintiff has

offered none to this court) that he could not have provided similar notification to the parties

involved in the Lang litigation and his uninsured motorists coverage claim. His failure to

keep Attorney Fitzgerald, the Belknap County Superior Court and GEICO apprised of his

whereabouts, amounts to inexcusable neglect.

On this same point, the plaintiffs assertion that GEICO had some obligation to pursue

him regarding his pending UM claim is simply unsupported by the facts. As noted above,

GEICO had, through its counsel, sent interrogatories and authorizations to the plaintiff in June

of 2005. Regardless of whether he was contractually obligated to respond to them, he was

clearly on notice through his retained legal counsel that GEICO was seeking information so

that it could investigate the UM claim. The plaintiff never responded, and the information

requests were ignored. When Attorney Fitzgerald eventually withdrew, he advised Attorney

Kilibarda that "I assume that at some point in the future Mr. Albadry or a different

representative may be in touch with your offce." Affidavit of Holly J Kilibarda. (Appellant's

Appendix, p. 260.) That never happened. The plaintiff cannot seriously contend that GEICO

was obligated to chase him around the Middle East in an attempt to get him to respond to

information requests that had been pending since June of 2005.

VII. CONCLUSION

WHEREFORE, the defendant, GEICO Direct, respectfully requests that the honorable

court affirm the superior court's entry of summary judgment in its favor; and grant such other

and further relief as the court may deem just.

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Dated: 9 September 2010 Respectfully submitted,

GEICO Direct

By its attorneys,

DEVINE, MILLIMET & BRANCHPROFESSIONAL ASSOCIATION

~Robert C. Dew irst, EsquireNH Bar # 634111 Amherst StreetManchester, NH 03 101

(603) 669-1000rdewhirst(cdevin emill im et. com

""

RULE 16 (3)(h) REQUEST FOR ORAL ARGUMENT

Fifteen (15) minutes of oral argument time is requested. Robert C. Dewhirst, Esquire

will argue the case for the defendant.

RULE 16 (10) CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Defendants' Brief have this day been

sent via United States Postal Service, first class mail, postage prepaid, to Keith F. Diaz,

Esquire.

Dated: 9 September 2010

Robert C. Dewhirst, Esquire

29