Dindo (P) alleges that Whitney (D) was a passenger in D's car as it was being driven by P. The car went off the road and P was injured. P claimed that D caused the accident by putting his hand through the steering wheel in reaching for a flashlight. P sued D in the district court of New Hampshire in 1968. D sued P in the district court of Vermont in 1966. P gave the papers for that suit to his insurance agent who forwarded them to D's insurer in that D's insurer would insure P as he had permission to drive D's car. The insurer retained counsel and advised P to do so. He did not. The Vermont suit was settled and discontinued, and D then pleaded that the New Hampshire action was barred by reason of P having failed to assert a compulsory counterclaim in a prior action. The New Hampshire action is defended by the same insurer that represented P in the Vermont action and who was also D's insurer.

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