2005-415, LYNN WARNER v. CLARENDON INSURANCE CO.

additional driver. Paragraph 10A of the agreement provided:

executed a rental agreement for the vehicle which listed Scott E. Brown as an owned by Ryder TRS, Inc. (Ryder) from its rental agency in Idaho. Corlett

In September 1999, Jennifer Corlett, a Maine resident, leased a truck

Insurance Company (Clarendon). We affirm. Superior Court (Mohl, J.) granting a declaratory judgment in favor of Clarendon BRODERICK, C.J. The plaintiff, Lynn Warner, appeals an order of the

J. Barshak on the brief and orally), for the defendant. Sugarman, Rogers, Barshak & Cohen, P.C., of Boston, Massachusetts (Edward Mallory & Friedman PLLC, of Concord (Mark L. Mallory on the brief) and

brief and orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Cleveland, Waters and Bass, P.A., of Concord (Mark D. Wiseman on the

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2005-415 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Strafford Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as financial responsibility under applicable law.

p. 2 the minimum amount of protection that is required to establish

financial responsibility limits,” as used in this Agreement, refer to

responsibility limits and/or minimum no fault benefits. “Minimum described above, it will not exceed the minimum financial law requires that Ryder TRS provide protection other than as

driver as an ‘insured’ under an ‘auto’ rental contract.” The policy includes

benefits required by applicable law. . . . To the extent applicable

provided by this policy is primary insurance with respect to the ‘rentee’ or

minimum financial responsibility limits and/or minimum no fault protection available to the driver and/or injured passenger(s), the meet, on a cumulative basis with all such insurance and/or other which the ‘auto’ is rented.” STAR-3 provides: “It is agreed that the coverage insurance required under the Financial Responsibility law for the state in ‘insured’ under an ‘auto’ rental contract, but only with respect to the limit of

Ryder TRS’ protection applies only to the extent it is needed to

by this policy is primary insurance with respect to the ‘rentee’ or driver as an

permissive users of a Ryder vehicle. Clarendon is Frontier’s reinsurer. included business auto coverage. That policy covered Corlett and Brown as issued by the now insolvent Frontier Insurance Company (Frontier) that

indemnification, whether primary, excess, or contingent), and then protection, employer’s insurance and/or any other protection or (automobile liability insurance, no fault insurance, personal injury of the policy’s “General Conditions.” STAR-2 recites: “The coverage provided endorsements, STAR-2 and STAR-3, that amend the “Other Insurance” subpart Ryder’s policy provides $2 million in liability coverage. It includes two

At the time of the accident, Ryder was covered by an insurance policy

crossed the center line and struck the automobile Warner was driving. Hopkinton, New Hampshire, en route to Maine, Brown fell asleep at the wheel, Approximately a week later, while driving the rented Ryder truck through driver of the Vehicle and/or any injured passenger in the Vehicle

exhaustion of all insurance and/or other protection available to the limited as follows: Ryder TRS’ protection does not apply until after property damage resulting from use or operation of the Vehicle,

TRS provides protection for bodily injury (including death) and If there is no violation of a use restriction (paragraph 2), Ryder that amount. p. 3 any other insurance available to Corlett and Brown that cumulatively equaled from Clarendon was $25,000, and that Clarendon’s coverage was in excess of

Warner’s motion and granted Clarendon’s, ruling that the coverage available

when read together, rendered the policy ambiguous. is rented.” Murdock rejected Warner’s argument that STAR-2 and STAR-3, required under the Financial Responsibility law for the state in which the ‘auto’ and Maine. Both parties moved for summary judgment. The trial court denied 3 7, because this was the financial responsibility limit in New Hampshire, Idaho the financial responsibility law of Florida, Ryder’s home state. the trial court to declare that its coverage was limited to $25,000 under STAR-

stands on its own.

2 which, according to Murdock, limited coverage “to the limit of insurance consistent with applicable financial responsibility law; and (3) failing to apply to $2 million in coverage. Clarendon filed an answer and counterclaim, asking the $2 million policy limit; (2) ruling that STAR-7 is unambiguous and Clarendon’s coverage of Brown and Corlett was limited to $25,000 rather than construed against Clarendon. Even if such an ambiguity existed, STAR-7 STAR-2 and STAR-3 and, if so, whether it creates an ambiguity that must be We need not decide whether the asserted contradiction exists between

Handley v. Providence Mut. Fire Ins. Co., 153 N.H. 340, 341 (2006). “We review the trial court’s application of the law to the facts de novo.”

were entitled to coverage up to the $2 million policy limit, Murdock cited STARand New Hampshire. In rejecting Warner’s contention that Corlett and Brown liability coverage required by the financial responsibility statutes in both Idaho Clarendon, with the result that Corlett and Brown would each be entitled to up created an ambiguity that Warner claimed should be construed against On appeal, Warner argues that the trial court erred by: (1) ruling that contending that a contradiction existed between STAR-2 and STAR-3 which

policy. Murdock offered Warner $25,000, which it said was the amount of

Warner filed a petition for a declaratory judgment in the superior court,

‘rentee.’” limitations contained in the rental agreement between [Ryder] and such by this policy to a ‘rentee’ is subject to the terms, conditions, restrictions, and

determine the amount of coverage available to Corlett and Brown under the administrator, Murdock Claim Management Corporation (Murdock), to After the accident, Warner corresponded with Frontier’s third-party

“Liability Coverage” section. STAR-7 states: “The insurance coverage provided another endorsement, STAR-7, that amends the “Coverage” part of the preserved for our review.

p. 4 fundamental reason; it was not raised in the trial court, and is, therefore, not

would reach this conclusion under either New Hampshire law or Florida law. rental agreement, there is no ambiguity to resolve against Clarendon. We

Florida. Warner’s argument based on RSA 264:18, VI fails for a more fact, the trial court determined that the truck was licensed and registered in which is yet another prerequisite to the applicability of section 264:14, II. In

under RSA 264:14.

there is no reasonable way to read STAR-7 as allowing STAR-3 to trump the

this case was “registered or principally garaged in this state,” RSA 264:14, I,

conditions, restrictions, and limitations” in the rental agreement. Because includes the coverage provided by STAR-3 – “is subject to the terms, that “[t]he insurance coverage provided by this policy,” – which necessarily

delivered in New Hampshire). Moreover, there is no evidence that the truck in

264:14, II is misplaced, because RSA 264:14, II applies to “policies issued

coverage, the insurance policy is considered ambiguous” (quotation omitted)).

relationship between itself, the rental agreement, and STAR-3. STAR-7 recites Hampshire was $25,000. RSA 264:20 (2004).

(declining to apply RSA 264:15, I, to an insurance policy neither issued nor

RSA 264:14, II (2004) and RSA 264:18, VI (2004). Warner’s two statutory arguments are unavailing. Her reliance on RSA and that, in any event, STAR-7 is a “step-down” provision that violates both

reasonable interpretation, one providing coverage and the [other] limiting (Fla. 2005) (“[i]f the relevant policy language is susceptible to more than one relationship between those two endorsements, STAR-7 directly addresses the against the insurer.”); Taurus Holdings v. U.S. Fidelity, 913 So. 2d 528, 532 At the time of the accident, the minimum financial responsibility limit in New provides coverage, the policy contains an ambiguity and will be construed more than one reasonable interpretation is possible, and an interpretation See Catholic Med. Ctr. v. Executive Risk Indem., 151 N.H. 699, 701 (2005) (“If

creates the same sort of ambiguity that exists between STAR-2 and STAR-3

same portion of the policy in two different ways, without comment on the [applicable] financial responsibility limits and/or minimum no fault benefits.” policy ambiguous. Unlike STAR-2 and STAR-3, which appear to revise the agreement provides that liability coverage “will not exceed the minimum require liability coverage up to the full policy limit, STAR-7 does not render the rental agreement between [Ryder] and [Corlett].” Paragraph 10A of the rental The trial court correctly determined that even when STAR-3 is read to

Warner argues that STAR-7, when read in conjunction with STAR-3,

subject to the terms, conditions, restrictions, and limitations contained in the Under STAR-7, the liability coverage available to Corlett and Brown “is that renders those endorsements inoperative.

p. 5 twenty-eight different states; we will not read the rental agreement in a way

rewrite the rental agreement to substitute the latter for the former. responsibility law.

140 pages, pertaining to the financial responsibility and no fault laws of policy would not have included thirty-nine endorsements, covering more than financial responsibility and no fault laws were the applicable laws, Ryder’s

“applicable law” rather than “Florida law” was deliberate, and we would not rental agreement cannot be read to require application of Florida’s financial

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

parties’”). Moreover, had Ryder and Frontier contemplated that Florida’s grant of summary judgment to Clarendon is affirmed. Because the trial court correctly construed the Clarendon policy, its

“applicable law” referred to in paragraph 10A of the rental agreement. “applicable no fault law” and “applicable state law.” Plainly, use of the phrase Ryder’s policy does not make Florida’s financial responsibility law the 30. Under the principles of contract interpretation in force in Florida, the

every provision its full meaning and operative effect.”

that is not present, or otherwise reach results contrary to the intentions of the Holdings, 913 So. 2d at 532 (“courts may not ‘rewrite contracts, add meaning

paragraph makes three more references to “applicable law,” and one each to Florida law – a question we need not decide – application of Florida law to limits and/or minimum no fault benefits required by applicable law.” That 10A of the rental agreement speaks of “the minimum financial responsibility W. Fla. Village Inn, 874 So. 2d 26, 30 (Fla. Dist. Ct. App. 2004). Paragraph

insurance policy, courts should read the policy as a whole, endeavoring to give plain meaning.” Taurus Holdings, 913 So. 2d at 532. “In construing an “Under Florida law, insurance contracts are construed according to their

even assuming it is appropriate to interpret and enforce Ryder’s policy under Florida’s financial responsibility law rather than New Hampshire’s. However, contention that New Hampshire’s choice-of-law rules require application of Warner’s final argument concerns choice of law and, specifically, her