2003-834, CRAIG KRIGSMAN v. PROGRESSIVE NORTHERN INSURANCE CO.

policy with Progressive on the day of the accident. On March 13, 2002, resulting in the total loss of his vehicle. The petitioner filed a cla im under his record. On March 7, 2002, the petitioner was in a single vehicle accident, The following facts were found by the trial court or are evident in the

o f his insurance claim. We affirm. materially breached his duty to cooperate with Progressive in the investigation petitioner argues that the trial court improperly concluded that he had the respondent, Progressive Northern Insurance Company (Progressive). The Superior Court (Smukler, J.) denying his request for declaratory relief against DUGGAN, J. The petitioner, Craig Krigsman, appeals an order of the

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

LeFevre on the brief and orally), for the petitioner. Bossie, Kelly, Hodes, Buckley & Wilson, P.A., of Manchester (David E.

No. 2003 - 834 Belknap

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

days later without ever submitting to an EUO. p. 2 2002 to reschedule was futile. The petitioner filed this suit twelve holiday week. The insurer’s attempt during the week of July 10, available. The insurer was not able to conduct an EUO during that dated June 24, 2002[,] six days before the first date petitioner was [N]otice of petitioner’s availability was sent to the insurer in a letter

trial court found that: j udgment action against Progressive while its investigation was pending. The contract by refusing to submit to the EUO and initiating the declaratory was whether the petitioner breached his obligations under the insurance Hampshire residency requirement. Thus, the only issue before the trial court testimony, Progressive conceded that the petitioner met the policy’s New two houses on it, his primary residence and a rental unit. Based on this At trial, the petitioner testified that his property in New Hampshire had

filed a petition for declaratory judgment on July p. 2 23, 2002. be resolved within the parameters of formal judicial process.” He subsequen tly counsel on July 18, 2002, again stating that he believed the matter “would best judicial process.” The petitioner’s counsel sent another letter to Progressive’s petitioner “may no longer be willing to give his deposition ou tside of a formal noting that his proposed dates for the EUO had passed and stating that the week. On July 10, 2002, the petitioner’s counsel wrote to Progressive’s counsel scheduled because Progressive’s counsel was not available during the holiday returns, utility bills and homeowner’s insurance policies. The EUO was not petitioner bring several documents to the EUO, including copies of his tax he “would li ke to take [the petitioner’s] deposition” and requesting that the Progressive’s local counsel sent a letter to the petitioner’s counsel stating that EUO on four dates during the week of July 1 - 5, 2002. On June 28, 2002, counsel informed the claims representative that he would be available for the the investigation of the claim. By letter dated June 24, 2002, the pe titioner’s oath (EUO) of the petitioner. Progressive also retained local counsel to assist in Progressive contacted the petitioner’s counsel to arrange an examination under investigation of the claim. That same day, a clai ms representative from June 18, 2002, that it was rescinding its denial of coverage and reopening its finding that he resided in Massachusetts. Progressive notified the petitioner on In May 2002, the petitioner sent a letter to Progressive contesting its

Massachusetts. investigation concluded that the petitioner’s primary residence was in dated April 16, p. 2 2002, Progressive denied the petitioner’s claim because its resident of New Ha mpshire, as required for coverage under the policy. By letter covered because there was a question as to whether the petitioner was a Progressive sent a letter to the petitioner indicating that his claim may not be p. 3 3

judicial process. Second, the petitioner’s testimony at trial indicate s that to submit to an examination and that he intended to proceed with formal Progressive on July 10 and July 18, 2002, indicating that he may not be willing the petitioner refused to submit to an EUO. First, the petitioner wrote to There is, however, other evidence to support the trial court’s conclusion that Progressive sent him correspondence on July 10, 2002, regarding the EUO. We agree wit h the petitioner that the trial court erred in finding that

inconvenient and did not attempt to reschedule the EUO. He contends that Progressive never informed him that the proposed dates were finding that Progressive wrote to him on July 10, 2002, to reschedule the EUO. [the EUO] was futile.” Specifically, the petitioner p oints to the trial court’s that “[t]he insurer’s attempt during the week of July 10, 2002 to reschedule First, the petitioner argues that the trial court erred in its factual finding

a policy is clear and unambiguous. Id. Id. We need not examine the parties’ reasonable expectations of coverage w hen and unambiguous, we accord the language its natural and ordinary meaning. Policy terms are construed objectively, and where the terms of a policy are clear the insured based on a more than casual reading of the p olicy as a whole. Id. language of an insurance policy as would a reasonable person in the position of Godbout v. Lloyd’s Ins. Syndicates, 150 N.H. 10 p. 3 3, 105 (2003). We construe the insurance policy language is a qu estion of law for this court to decide. Guarnaccia Irrevocable Trust, 150 N.H. 732, 734 (2004). The interpretation of unless they are erroneous as a matter of law. New England Homes v. R.J. unsuppor ted by the evidence and we will affirm the trial court’s legal rulings We will affirm the trial court’s factual findings unless they are

petitioner’s breach. We agree. thus it may deny coverage without proving it has been prejudiced by the shou ld be construed as a condition precedent to recovery under the policy and Progressive counters that submission to a reasonable request for an EUO

constitute a material breach of the policy. must be prejudiced by an insured’s failure to submit to an EUO for it to finding that he ref used to submit to an EUO. He also argues that the insurer On appeal, the petitioner argues that the trial court erred in its factual

of defending the declaratory judgment action. contractual obligations was prejudicial to Progressive because it bore the cost cooperation clause.” The court also found th at the petitioner’s breach of his policy. The insured’s refusal to schedule an EUO was also a breach of the obligations and refusing to submit to an EUO is a breach of the insurance The trial court concluded, “Both filing suit before the insurer breached its p. 4 4

[Petitioner]: Yes.

[Atty. Rehnborg]: And you refused to do so?

[Petitioner]: Yes.

issue of residency? part of Progressive’s investigation in this matter to determine the [Atty. Rehnborg]: And you also knew, did you not, that that was

[Petitioner]: Yes.

records? [Atty. Rehn borg]: And you knew I wanted . . . you to produce

. . . .

better to pursue this through legal action. [Petitioner]: Because at the time it was chosen it would be

[Atty. Rehnborg]: Why?

[Petitioner]: No.

that they would be available in early July? [Atty. Rehnborg]: Did yo u gather those documents back there so

. . . .

[Petitioner]: Yes.

certain documents, are you aware of that? asking for you to, when you attended the deposition, come with [Atty. Rehnborg]: Now, a letter was sent to your attorney, . . .

. . . .

[Pe titioner]: Yes.

knew that? do it [the week of July p. 4 4], but we can do it a week or two later. You [Atty. Rehnborg]: And then Progressive said through me we can’t

dates had passed: Progressive contacted the petitioner to reschedule the EUO after the proposed p. 5 5

prejud ice). Nebraska, 669 N.W.2d 462, 466 (Neb. 2003) (holding that insurer must show policy but not to filing suit against the insurer); Wright v. Farmers Mut. of (holding that submission to EUO is a condition precedent to recovery under fire McCullough v. Travelers Companies, 424 N.W.2d p. 5 542, 544 (Minn. 1988) Russ & T. Segalla, Couch on Insurance 3d § 196:22 (1999). But see (Fla. Dist. Ct. App. 1995), review denied, 670 So. 2d 938 (Fla. 1996); 13 L. 1995); see also Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 303 liability.” Mello v. Hingham Mut. Fire Ins. Co., 656 N.E.2d 1247, 1250 (Mass. reasonable, is strictly construed as a condition precedent to the insurer’s most jurisdictions that the submission to an examination, if the request is Although we have not previously addressed this issue, “[i]t is th e law in

compliance with all the terms of this policy.” (Emphasis omitted.) Against Us,” the policy provides: “We may not be sued unless there is full (Emphasis omitted.) Under a separate section of the policy titled “Legal Action

reasonably require. reasonable questions we may ask, when and as often as we may sworn statements and examinations under oath, and answer all 3. allow us to take signed and recorded statements, including

. . .

1. cooperate with us in any matter concerning a claim or lawsuit;

A person claiming coverage under this policy must:

loss, the insurance policy provides: Under the section detailing the insured’s duties in case of an accident or

that it suffered prejudice from t he petitioner’s breach. precedent to recovery under the policy, and thus it should not have to prove Progressive counters that we should construe the EUO provision as a condition prejudiced by the petitioner’s failure to submit to an EUO prior to filing suit. Next, the petitioner argues that Progressive must prove that it was

1 p. 5 51 N.H. ___, ___, 857 A.2d 1257, 12 p. 6 62 (2004). not clearly erroneous or unsupported by the evidence. See In re Estate of King, actions constituted a refusal to submi t to Progressive’s request for an EUO was conclude that the trial court’s finding that the petitioner’s statements and Based on our review of the record and the petitioner’s testimony, we 6

investigation of the claim. See Lorenzo - Martinez, 790 N.E.2d at p. 6 696. Here, insured’s refusal to submit to an EUO si gnificantly affects the insurer’s impair the insurer’s ability to investigate the claim. See id. In contrast, an failure to provide timely notice. A delay in receiving notice does not necessarily The effect of an ins ured’s breach of an EUO provision differs from the

of the policy that would excuse the insurer from performance. Id. at 339. notice, the insured’s failure to timely report the claim is not a material breach P artnership, 144 N.H. at 338. Unless the insurer was prejudiced by the late notice was given in light of the circumstances of the case. Dover Mills length of the delay and the reasons for it, to determine whether reasonable 4 p. 6 64, 466 (1969). We examine any prejudice to the insurer, as well as the the absence of a substantial breach.” Abington Fire Ins. Co. v. Drew, 109 N.H. the view that “[t]he insured should not forfeit the protection he has paid for in prejudice due to late notice under a claims - made policy). This holding reflects Co., 144 N.H. 288, 296 (1999) (h olding that insurer is not required to prove Ins. Cos., 144 N.H. 336, 339 (1999). But see Bianco Prof. Assoc. v. Home Ins. under an occurrence - based policy. Dover Mills Partnership v. Comm. Union by an insured’s failure to report a potential claim “as soon as practicable” Insurance Cos., which held that an insurer must prove it has been prejudiced prejudice, the petitioner relies on Dover Mills Partnership v. Commercial Union In support of his contention that Progressive must prove actual

insured. Lorenzo - Ma rtinez, 790 N.E.2d at p. 6 696. information that is primarily or exclusively within the possession of the provides a mechanism for the insurer to corroborate the claim by obtaining v. Commonwealth Insurance Co., 110 U.S. 81, 94 - 95 (1884). The EUO decide upon their obligations, and to protect them against fals e claims.” Claflin knowledge, in regard to the facts, material to their rights, to enable them to itself of all knowledge, and all information as to other sources and means of 2003). The purpose of an EUO provision i s to enable the carrier “to possess Lorenzo - Martinez v. Safety Ins. Co., 790 N.E.2d 692, 695 - 96 (Mass. App. Ct. prejudice from an insured’s unexcused refusal to submit to an examination. recovery general ly do not require the insurer to prove that it suffered actual Courts that construe submission to an EUO as a condition precedent to

N.E.2d at 1249 n.3 (examining similar policy language). condition precedent to filing suit. See Goldman, p. 6 660 So. 2d at 303; Mello, 656 petitioner’s policy makes submission to a reas onable request for an EUO a Godbout, 150 N.H. at 105. Thus, we conclude that the language of the policy as requiring compliance with the EUO request prior to filing suit. See provision. A reason able person in the petitioner’s position would interpret the unless there is full compliance with all of the policy terms, including the EUO to take an examination under oath and that Progressive may not be sued The policy unambiguously states that the insured must allow Progressive p. 7 7

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

order denying the peti tioner’s request for declaratory relief. precedent to filing suit under the petitioner’s policy, we affirm the trial court’s Because we hold that compliance with the EUO request is a condition

has been prejudiced by the petitioner’s refusal to submit to the EUO. make a coverage determination. We will not require Progressive to prov e that it Progressive requested the EUO in order to resolve the residency issue and