2004-612, GARRY K. HARRINGTON v. CONCORD GENERAL MUTUAL INSURANCE COMPANY

seeking damages for injuries sustaine d in the accident. the accident occurred. The plaintiff sued Cheshire Village Pizza and Laborio, as a delivery person by Cheshire Village Pizza, and was delivering pizza when was driving a car; t he plaintiff was on foot. Laborio was, at the time, employed 2000, the plaintiff was involved in an accident with Edward Laborio. Laborio The parties stipulated to the following facts. On or about December 20,

Concord General Mutual Insurance Company (Concord General). We affirm. Superior Court (Arnold, J.) granting summary judgment to the defendant, DALIANIS, J. The plaintiff, Garry K. Harrington, appeals an order of the

Ann Dempsey on the brief, and Mr. Rehnborg orally), for the defendant. Wiggin & Nourie, P.A., of Manchester (Gordon A. Rehnborg, Jr. and Mary

orally), for the plaintiff. Hall Stewart, P.A., of Manchester (Francis G. Murphy on the brief and

No. 200 4 - 612 Cheshire

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

policy to deny him coverage are valid. We disagree. provide this minimum coverage, even if the provisions it relies upon in its coverage of at least $ p. 2 25,000. He insists that Concord General is required to the responsibility imposed by the se two statutes to provide uninsured motorist RSA 264:15, I (2004). The plaintiff argues that Concord General cannot avoid equivalent to that of liability insurance coverage purchased by an insured. in surance company to provide uninsured motorist coverage in an amount plaintiff reads this definition in tandem with RSA 264:15, I, which requires an amount of at least $25,000 for an accident in which one person is injured. The liability insurance which provides indemnity or protection for the insured in an RSA 259:61, I, defines a “motor vehicle liability policy” as a policy of

coverage are not applicable to his claim. four provisions of the policy upon which Concord General relied to deny him Fi nancial Responsibility Act, RSA chapter p. 2 264. The plaintiff next argues that insurance coverage, and any attempt to escape this obligation is voided by the 259:61, I (2004) requires Concord General to provide at least $25,000 worth of The plaintiff makes two arguments on appeal. First, he argues that RSA

plaintiff. General was not required to provide uninsured motorist bene fits to the summary judgment, the trial court found as a matter of law that Concord injuries sustained by the plaintiff in the accident. On cross - motions for that Concord General was re quired to provide uninsured motorist coverage for The plaintiff filed suit in superior court, seeking a declaratory judgment

was denying his claim for uninsured motorist benefits. about May 1, p. 2 2003, Concord General informed the plaintiff’s attorney that it of the settlement with Cheshire Village Pizza and the volunt ary non - suit. On or On or about April 14, 2003, the plaintiff’s attorney informed Concord General motorist coverage of up to $100,000 per person and $300,000 per occurrence. The plaintiff’s insurance polic y with Concord General provides uninsured

Concord General, and made a demand for uninsured motorist benefits. p. 2 2003, the plaintiff’s attorney mailed Laborio’s affidavit of non - insurance to Laborio, which was granted on January 8, 2003. On or about January 8, filed a motion for voluntary non - suit without prejudice of his claim aga inst 2002. After receiving an affidavit of non - insurance from Laborio, the plaintiff settled his claim against Cheshire Village Pizza for $40,000 on December 6, Without the knowledge or consent of Conc ord General, the plaintiff

an automobile insurance policy with Concord General. Laborio did not have personal automobile liability insurance. The plaintiff had did not provide coverage for Laborio individually. At the time of the accident, It provided coverage for Cheshire Village Pizza with respect to the accident, but Empire Insurance Company. The applicable limit of this policy was $750,000. Cheshire Village Pizza had an automobile liability insurance policy with p. 3 3

benefits, but uninsured motorist benefits. He argues that the fourth pr ovision third provisions do not apply as he is not seeking underinsured motorist then we see no need to examine the rest. The plaintiff argues that the first and (199 p. 3 3). If one of these provisions effectively denie s coverage to the plaintiff, this court to decide. Raudonis v. Ins. Co. of North America, 137 N.H. 57, 59 The interpretation of insurance policy language is a question of law for

General has made a payment under the policy. proceeds of any payment the insured is entitled to, or collects, if Co ncord to Recover Payment,” and provides that Concord General is entitled to the body of the policy, in Part F – General Provisions, under the heading “Our Right underinsured motorist coverage. The fourth provision is found in the main Duty” section, and describes additional duties of insureds seeking third provision, also in the same endorsement, is found under the “Additional heading “Exclusions” is Exclusion B.1, found in the same endorsement. The insurers of underinsured motor vehicles. The second provision, under the under the heading “Insuring Agreement,” which relates to settlements with plaintiff terms a “consent to settle” clause, in endorsement PP 04 45 06 94, policy that would seem to deny him coverage. The first provision is what the The plaintiff raises objections to four of the provisions in the insurance

the law. General’s refusal to provide coverage to the plaintiff is not in contravention of exception to uninsured motorist cover age, we can conclude that Concord Therefore, if we find that the policy contains a clear and unambiguous through clear and unambiguous policy language. See Turner, 141 N.H. at p. 3 30. position of the insured. Id. Concord General remains free to limit its liability terms that convey their meaning and effect to a reasonable person in the contrary, insurers have a right to limit their liability by exclusions written in It is well settled that absent statutory provisions or public policy to the

coverage in an amount equal to his liabilit y coverage. requirement was met in this case, as the plaintiff had uninsured motorist provided to policy holders in the same amount as liability coverage. This R SA 264:15, I, requires only that uninsured motorist coverage be

coverage when it is not required by the statute. Wegner, 1 p. 4 48 N.H. at 109. however, also held that we are not at liberty to find uninsured motorist coverage in contravention of the Financial Responsibility Act. We have, the parties to an insurance contract may not b y agreement limit the required Paul Prop. & Liab. Ins. Co., 141 N.H. 27, 29 (1996). We have recognized that to the same extent that they protect themselves against liability. Turner v. St. policy holders to protect the mselves against injury from an uninsured motorist Cas. Ins. Co., 148 N.H. 107, 108 (2002). RSA 264:15, I, is intended to allow the words of a statute considered as a whole. Wegner v. Prudential Prop. & We are the final arbiters of the intent of the legislature as expressed in 4

concurred. BRODERICK, C.J., and NADEAU, DUGGAN and GALWAY, JJ.,

without Concord General’s consent. were “bodily injury” claims under Exclusion B.1 and could not be settled same injuries that resulted from the accident with Laborio. Therefore, thes e conduct in connection with the accident at issue, and sought damages for the predicated upon Cheshire Village Pizza’s responsibility for its employee’s for Laborio’s conduct and its duty to supervise Laborio. These claims were that the basis of his claim against Cheshire Village Pizza was vicarious liability claim against Cheshire Village Pizza. The plaintiff admitted at oral argument We disagree that the claim ag ainst Laborio is “entirely separate” from the

insurer’s prior consent.) based upon consent to settle clause where insured settled with parties without Mut. Ins. Co., 135 N.H. 26, 28 - 29 (1991) (upholding exclusion of coverage uninsured motorist benefits re lated to that claim. See Stevens v. Merchants before he settles any bodily injury or property damage claim in order to receive and unambiguously requires the plaintiff to obtain Concord General’s consent injury claim wi thout its consent. We hold, therefore, that this exclusion clearly provide coverage if the insured, in this case the plaintiff, settles the bodily with an uninsured motorist. It merely states that Concord General will not Exclusion B.1 does not require that the plaintiff settle a bodily injury claim from Concord General. Therefore, Part C of the policy applies. In addi tion, The plaintiff, however, admits he is seeking uninsured motorist coverage

“entirely separate claim . . . against an uninsured motorist.” C of the policy do not apply, a nd impose no obligation on him regarding his Pizza was not an uninsured motorist claim, and therefore the provisions of Part motorist. The plaintiff further argues that his claim against Cheshire Village coverage, be cause he did not settle his claim against Laborio, the uninsured The plaintiff argues that this exclusion has no bearing on his claim for

injury’ or ‘property damage’ claim without our consent.” by any ‘insured’: 1. If that ‘insured’ or the legal representative settles the ‘bodily Uninsured Motorists Coverage for ‘property damage’ or ‘ bodily injury’ sustained section heading “Exclusions,” the policy states “B. We do not provide 9 p. 4 4, is titled “Uninsured Motorists Coverage – New Hampshire.” Under the Part C of the insurance policy, as amended by endorsement PP 04 45 06

plaintiff. provision, Exclusion B.1 is applicable, and effectively denies coverage to the policy. We need not decide these issues, because we find that the second does not apply because Concord General never made a payment under the