2004-814, DONNA BANFIELD, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF DAVID BANFIELD, JR. v. ALLSTATE INSURANCE COMPANY

David was thrown from the vehicle and injured. At the time of the accident, was driving on Derryfield Road in Derry. Adam lost control of the ATV, and was a passenger on an all - terrain vehicle (ATV) that his friend, Adam Mecca, The relevant facts are undisputed. On Apri l 15, 2001, David Banfield

affirm. (Allstate) motion for summary judgment and denying her cross - motion. We Superior Court (Morrill, J.) granting respondent Allstate Insurance Company’s mother and next friend of her son, David Banfield, Jr., appeals a decision of the BRODERICK, C.J. The petitioner, Donna Banfield, individually and as

on the brief and orally), for the respondent. Bouchard, Kleinman & Wright, P.A., of Manchester (Nicholas D. Wright

the b rief and orally), for the petitioner. Getman, Stacey, Schulthess & Steere, P.A., of Bedford (John P. Fagan on

No. 2 004 - 814 Rockingham

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

into a “motor vehicle liability policy” so distorts its purposes and it to be a property insurance policy. Attempting to transform it Homeowners Policy,” and its descriptions of cover age clearly show The policy in this case is entitled “Allstate Deluxe Plus

the accident: ruling that Allstate was not obligated to provide coverage in connection with denied the petitioner’ s motion for summary judgment and granted Allstate’s, the undisputed facts and relevant provisions of the policy, the trial court exclusion quoted above was void under New Hampshire law. After considering the policy was a “motor vehicle liability policy” and, consequently, that the In her cross - motion for summary judgment, the petitioner argued t hat

not being operated on the “insured premises.” Kendall Pond Road in Derry; and (5) at the time of the accident, the ATV was premises” for purposes of the policy was the Mecca residence located at 46 David Banfield constituted an “occurrence” under the policy; (4) the “insured “designed principally for recreational use off public roads”; (3) the injury to (1) Rhea Mecca was an “insured person” under the policy; ( p. 2 2) the ATV was In addition to the facts recited above, the parties sti pulated that:

and is being used away from an insured premises [.] public roads, unless that vehicle is owned by an insured person b) any motor vehicle designed principally for recreational use off

. . . .

does not app ly to: the . . . use . . . of any motor vehicle . . . . However, this exclusion We do not cover bodily injury or property damage arising out of

. . . .

and covered by this part of the policy. damage a rising from an occurrence to which this policy applies, legally obligated to pay because of bodily injury or property Allstate will pay damages which an insured person becomes Subject to the terms, conditions and limitations of this policy,

The policy contains the following relevant provisions:

Allstate to compel it to provide coverage. injuries, and the petitioner brought a declaratory judgment action against insurance policy issued by Allstate. Allstate denied coverage for David’s Adam’s mother, Rhea Mecca, owned the ATV and had a homeowner’s p. 3 3

such limit as respects injury or death of one person, of at least account of injury to or death of any one person, an d subject to the insured . . . to the amount or limit of at least $25,000 on sustained during the term of said policy by any person other than pay damages to others for . . . bodily injuries . . . accidentally express or implied consent, against loss by reason of the liabi lity to . . . who has obtained permission or control thereof with his responsible to him for the operation of the insured’s motor vehicle I. Indemnity for or protection to the insured and any person

[A] policy of liability insurance which provides:

part, as: RSA 259:61, I (2004) defines “motor vehicle liability policy,” in pertinent

614 (2004). Chapter - Citizens for a Sound Economy v. Sch. Admin. Unit #25, 151 N.H. 612, need not look beyond it for further indication of legisla tive intent. Bedford the words used. When the language of a statute is plain and unambiguous, we the statute, and, where possible, we ascribe the plain and ordinary meaning to words of the statute considered as a whole. We first examine the language of We are the final arbiter of the intent of the legislature as expressed in the

vehicle identifiable as covered under the policy.” We disagree. because the policy “provide[s] liability coverage to its insured for use of a motor definition of a “motor vehicle liability policy” under RSA 259:61 (Supp. 2004) involved.” In support of this contention, she argues that the policy meets the motor vehicle liability policy for accidents in which the ATV is directly affords liability coverage for its insured’s ATV, the policy must b e treated as a The petitioner contends that “[because] the Allstate policy specifically

151 N.H. p. 3 395, 397 (2004). court’s application of the law to the facts de novo. Marikar v. Peerless Ins. Co., matter of law, the grant of summary judgment is proper. We review the tr ial issue of material fact, and if the moving party is entitled to judgment as a in the light most favorable to the non - moving party. If there is no genuine the affidavits and other evidence, and all inferenc es properly drawn from them, In reviewing the trial court’s grant of summary judgment, we consider

followed. The petitioner unsuccessfully moved for reconsideration, and this appeal

vehicle liability policy. position of the insured would ever believ e that it was a motor terms that it is inconceivable that a reasonable person in the p. 4 4

liability policy” subject to the statutory requ irement that such policies “offer and that are not intended to be used on a public highway is . . . a motor vehicle liability coverage for vehicles that are not subject to motor vehicle registration considered whether a “homeown er’s insurance policy that provides limited In Davidson v. Motorists Mut. Ins. Co., the Ohio Supreme Court

and, when owned by the insured, are used on the insured premises. narrow class of motor vehicles that are designed principally for recreational use coverage for bodily injury and property damage arising from t he use of a unambiguous language of the challenged provision, the policy provides statute. Consistent with its title as a homeowner’s policy and the this instance; she admi ts that if coverage exists, it is solely by operation of provisions of the policy are not ambiguous and do not provide for coverage in Plus Homeowners Policy.” Moreover, the petitioner concedes that the relevant As recognized by the trial court, the policy is entitled, “Allstate Deluxe

Krigsman v. Progressive N. Ins. Co., 151 N.H. 6 p. 4 43, 645 (2005). reasonable expectations of coverage when a policy is clear and unambiguous. language its natural and ordinary meaning. We need not examine the parties’ where the terms of a policy ar e clear and unambiguous, we accord the reading of the policy as a whole. Policy terms are construed objectively, and a reasonable person in the position of the insured based on a more than casual this court t o decide. We construe the language of an insurance policy as would The interpretation of insurance policy language is a question of law for

instances. because the policy contains a provision that affords liability coverage in those ari sing from the insured’s use of an ATV under limited circumstances simply “motor vehicle liability policy” for purposes of injuries or property damage resolve whether Rhea Mecca’s policy, as a whole, must be construed as a insurance, and not just one provision within such a contract. Thus, we must documents, all of which indicate that “policy” refer s to an entire contract of definition of the term “policy” refers to certificates, writings, contracts and Webster’s Third New International Dictionary 175 p. 4 4 (unabridged ed. 2002). The life is insured : an annuity contr act or certificate of an insurance company.” the contract made by an insurance company with a person whose property or a writing whereby a contract of insurance is made : the document containing the contex t of insurance, the term “policy” means: “a certificate of insurance : meaning. Bedford Chapter - Citizens for a Sound Economy, 151 N.H. at 614. In statute. Accordingly, we construe the term according to its plain and ordinary provides certain protection. The term “policy,” however, is not defined in the Thus, a “motor vehicle liability policy” is defined as a type of “poli cy” that

death of more than one person . . . . $ p. 5 50,000 on account of any one accident resulting in injury to or 5

not persuaded. its terms provided no coverage for the insured’s use of an automobile.” We are uninsured motorists benefits under a homeowner’s insurance policy which by Davidson, unlike in this case, was whether the claimant “could recover the homeowner’s policy. Consequently, she contends that the issue in for the use of a motor vehicle that was not covered under any circumstances in policy, while in Davidson, the claimant sought underinsured motorist co verage was specifically provided – in limited circumstances – under a homeowner’s she seeks liability protection for the use of a motor vehicle for which coverage The petitioner attempts to distinguish Davi dson on the basis that here,

coverage over and above that provided in business automobile liability policy). motor vehicles, but to insure against rare catastrophic liability by providing uninsured motorist coverag e on basis that purpose of policy was not to insure (1989) (declining to construe umbrella policy as being subject to laws regarding policy.” Id; see U.S. Automobile Assoc. v. Wilkinson, 132 N.H. 439, 446 - 49 motor ized vehicles does not convert the policy into a motor vehicle liability motorized vehicles, the mere fact that the policy provides coverage for these policy [in this case] affords limited coverage arising out of the use of certain Id. at 718 (brackets and quotations omitted). “Although the homeowner’s

policy. liability coverage intended by the parties or contained w ithin the underinsured motorist coverage where there is no automobile cannot be reasonably construed to provide uninsured or A homeowner’s policy such as the policy at issue in this case

transform a homeowner’s policy into an automobil e liability policy. and golf - carts, this incidental coverage is simply not enough to to specific conveyances such as recreational off - road conveyances the use of motor vehicles. While the exclusion . . . does not apply issue] specifically excludes coverage for bodily injury arising out of in a limited sense, for motor vehicles. The policy provision [at In this case, however, there is no direct liability coverage, even

the reaso ning of another court that had addressed a similar issue: homeowner’s policy was not a “motor vehicle liability policy,” the court adopted In determining that underinsured benefits were not available because the

713. connection with an automobile collision that left him seriously injured. Id. at underinsured motorist benefits under his homeowner’s insurance policy in Ins. Co., 744 N.E.2d 713, 719 (Ohio 2001). Specifically, the insured sought uninsured and underinsured motorist coverage.” Davidson v. Motorists Mut. p. 6 6

being operated upon a public highway. vehicle, shall apply to an OHRV [off highway recreational vehicle] the provisions of the statutes relative to the operation of a motor prohibitions of the New Hampshire financial responsibility law, and I. All provisions, including the pena lties, suspensions, and

as that in effect at the time of the accident: RSA 215 - A:28 in the current version of the statute is, in substance, the same ATVs comply with the Financial Responsibility Act.” The relevant portion of evidences the legislature’s intent that “insurers which provide insurance to conclusion that the policy at issue is a “motor vehicle liability policy” because it The petitioner argues that RSA 215 - A:28 (Supp. 2004) compels a

Rhea Mecca’s homeowner’s policy. invitation to construe the statute in a manner broad enough to encompass vehicle, it could have done so. It did not. Thus, we decline the petitioner’s coverage for injuries or property damage resulting from the use of a motor of “motor vehicle liability policy” any liab ility policy that provides any type of 2 p. 6 66 (2004). If the legislature intended to include within the statutory definition construction. See Verizon New England v. City of Rochester, 151 N.H. 263, include, contrar y to one of our well - established canons of statutory we would need to add words to the statute that the legislature did not see fit to In order to construe RSA 259:61 as broadly as the petitioner urges us to,

of a motor vehicle to which the insurance applies.” We disagree. broadly applies to any policy of liability insurance providing in demnity for use purpose of the liability insurance. She posits that RSA 259: p. 6 61, “by its terms policy” under RSA 259:61, coverage of motor vehicles need not be the primary The petitioner contends that for a polic y to be a “motor vehicle liability

not sufficient to transform the policy into a “motor vehicle liability policy.” Accordingly, we hold that the limited coverage the policy provides for the ATV is because it is insignificant to the type of overall coverage the policy provides. policy.” Indeed, any coverage of the ATV contained in the policy is incidental coverage contained in the policy “clearly show it to be a property insurance off public roads). Here, as the trial court aptly noted, the descriptions of Davidson involved recreational vehicles not subject to registration and for use 2002) (rejecting attempt to distinguish Davidson on basis that policy in provided.” Hillyer v. State Farm Fire & Cas. Co., p. 7 780 N.E.2d 2 p. 6 62, 267 (Ohio was remote from and insignificant to the type of overall cove rage the policy under the policy was “incidental primarily because coverage of [the] vehicles issue is whether the coverage that was provided relative to any motor vehicle Rhea Mecca’s homeowner’s policy is not dispositive. Rather, the dispositive The fact that the ATV in this case was subject to limited coverage under 7

“motor vehicle liability policy” to include policies such as the homeowner’s however, the legislature could have easily accomplishe d such a goal by defining vehicle is a “motor vehicle liability policy” under RSA 259:61. As stated, type of coverage for injuries or property damage arising from the use of a motor must be the goal of the legislature that any liability policy that provides any financial responsibility laws apply to the use of ATVs on public highways, it has expressed, through RSA 215 - A:28, its desire that New Hampshire’s the l egislature regulates ATVs, see, e.g., RSA 215 - A:21, :29 (Supp. 2004), and is not absurd.” The petitioner bases her argument on the premise that because motor vehicle liability policy is consistent with reasonable legislative goals and The petitioner’s final argument is: “Holding that the Allstate policy is a

alternative grounds support result). court reaches correct result, but on mistaken grounds, we will affirm if valid accident. See Sherryland v. Snuffer, 150 N.H. 262, 26 p. 7 7 (2003) (when trial ruled that Allstate is not obligated to provide coverage in connection with the petitioner is correct, we nevertheless affirm because the trial court correctly “motor vehicle liability policy” under RSA 259:61. Even assuming that the judgment, rather than addressing the question of whether the policy is a “reasonable expectations” test in ruling on the partie s’ motions for summary Next, the petitioner contends that the trial court erred in using the

Hampshire’s financial responsibility laws for OHRVs operating on public ways. policy” under R SA 259:61 provide coverage that complies with New 215 - A:28 is fairly construed as requiring that any “motor vehicle liability policy is converted into such a policy. Read together with RSA 259:61, RSA of “motor vehicle liability policy” under RSA 259:61 such that the homeowner’s homeowner’s policy. We decline to read RSA 215 - A:28 as altering the d efinition use of a motor vehicle, and therefore does not include Rhea Mecca’s provides any type of coverage for injuries or property damage arising from the policy” contained in RSA 259:61 does n ot include every liability policy that with the petitioner. As discussed, the definition of “motor vehicle liability subject to RSA 215 - A:28. Even with these assumptions, however, we disagree part of New Hampshire’s financial responsibility law, and that the ATV is highway” under RSA 215 - A:28. Furthermore, we assume that RSA 259:61 is addressing the petitioner’s argument, that Derryfield Road is a “public operating on the premises of Rhea Mecca.” We assume, for purposes of operating the ATV on Derryfield Road in Der ry,” and that “the ATV was not The parties stipulated that at the time of the accident, “Adam Mecca was

RSA 215 - A:2 p. 8 8, the policy in this case is a “motor vehicle liability policy.” financial responsibi lity law, which is made applicable to ATVs by operation of incident.” She argues that because RSA 259:61 is part of New Hampshire’s is subject to RSA 215 - A and was in use on a roadway at the time of this The petitioner maintains that “it is undisputed that the ATV insured by Allstate 8

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

grant of summary judgment to Allstate. policy at issue in this case. It did not. Accordingly, we affirm the trial court’s