2005-581, STEPHEN F. GUILFOY & a. v. UNITED SERVICES AUTOMOBILE ASSOCIATION

The petitioners, Stephen and Eileen Guilfoy, appeal an

orally), for the respondent. Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and

and orally), for the petitioners. Errors may be reported by E-mail at the following address: Nadeau Law Offices, P.L.L.C., of Portsmouth (J.P. Nadeau on the brief

UNITED SERVICES AUTOMOBILE ASSOCIATION

errors in order that corrections may be made before the opinion goes to press. No. 2005-581 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Hillsborough-southern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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. 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 pertinent part: p. 2 wrongful death statute by enacting RSA 556:12, III, which provides, in death statute, RSA 556:12 (Supp. 2005). In 1998, the legislature expanded the

This appeal followed. which would trigger an additional limit of insurance coverage under the Policy.” “‘loss of familial relationship’ does not constitute a separate ‘bodily injury’ petitioners’ individual claims for loss of familial relationship. The petitioners’ damages claim is based upon New Hampshire’s wrongful

law to the facts de novo. Id. summary judgment is proper. Id. We review the trial court’s application of the and if the moving party is entitled to judgment as a matter of law, the grant of Co., 152 N.H. 491, 493 (2005). If there is no genuine issue of material fact, in the light most favorable to the non-moving party. Banfield v. Allstate Ins. the affidavits and other evidence, and all inferences properly drawn from them, In reviewing the trial court’s grant of summary judgment, we consider

court granted the respondent’s motion for summary judgment, ruling that consequential damages recoverable by any person,” which encompasses the The parties then filed cross-motions for summary judgment. The superior son’s death; and (3) the policy expressly provides coverage for “derivative or (2) they suffered bodily harm and bodily sickness as a result of learning of their under RSA 556:12, III, to file individual claims for loss of familial relationship; Policy. In support, they argue that: (1) they have separate statutory rights, familial relationship trigger a separate per person liability limit under the On appeal, the petitioners assert that their individual claims for loss of

statutory claims for loss of familial relationship were covered under the Policy. they brought a declaratory judgment action to determine whether their When the respondent denied coverage for the petitioners’ individual claims, capacities for loss of familial relationship under RSA 556:12, III (Supp. 2005). limit for bodily injury. They also sought statutory damages in their individual son’s estate for which the respondent paid $100,000—the per person policy The petitioners brought a wrongful death claim on behalf of their minor

shown in the Declarations for ‘each person’ for BI Liability.” consequential damages recoverable by any persons, is the limit of liability resulting damages, including, but not limited to, all direct, derivative or by any one person in any one accident, our maximum limit of liability for all disease, or death,” and also provides, in pertinent part, that “[f]or BI sustained an auto accident.” It defines bodily injury as “bodily harm, sickness, or damage] for which any covered person becomes legally responsible because of The Policy provides coverage for “BI [bodily injury] or PD [property for loss of consortium under RSA 507:8-a, such a claim does not trigger an p. 3 Thus, we have held that even though a spouse has a separate cause of action

consortium as “bodily injury.”

(in context of a third-party lawsuit where the defendant has liability insurance). intentionally or by negligent interference. at 718 (in context of underinsured motorist benefits); the loss of familial relationship, whether caused Bean, 122 N.H. at 683-84 damage derivative of the underlying bodily injury claim. fact may award damages to such parent or parents for Brouillard, 141 N.H. 122 N.H. at 748. It is well settled that loss of consortium is a consequential includes “sickness or disease” does not include loss of consortium. Bisson, insurance policy language that contains a definition of “bodily injury” which

(1982). We have consistently declined the invitation to define loss of Insurance Co. v. Bisson, 122 N.H. 747 (1982); Bean v. Miller, 122 N.H. 681 Brouillard v. Prudential Prop. & Cas. Ins. Co., 141 N.H. 710 (1997); N.H. spouse is injured either intentionally or negligently. See RSA 507:8-a (1997); comparable damages provision for loss or impairment of consortium when a Yeroyan, 90 N.H. 145 (1939), and its progeny, we interpreted the scope of a provision in RSA 556:12, III. However, in Lumbermens’ Mutual Casualty Co. v. We have not yet interpreted the “loss of familial relationship” damages child with a surviving parent or parents, the trier of

solace, or moral support). “the right to society” as including love, companionship, comfort, affection, damages as the loss of a spouse’s society, sex, or services, and further defining N.H. Civil Jury Instructions 4D § 9.10 (2005) (defining “loss of consortium” relationship similarly to damages recoverable for loss of consortium. See also Thus, the legislature defined the damages recoverable for loss of familial deceased” and also limits the amount of the damage award. (Emphasis added.) decedent for the loss of the comfort, society, and companionship of the 556:12, II provides for an “award [of] damages to a surviving spouse of the loss of consortium damages attributable to a spouse’s wrongful death. RSA which creates a statutory cause of action to compensate a surviving spouse for negligent interference; where the decedent is a minor The language of this provision parallels the language of RSA 556:12, II, relationship, whether caused intentionally or by to such child or children for the loss of familial III. Such damages are limited to $50,000 per individual claimant. Id. society, affection, guidance, and companionship of the deceased.” RSA 556:12, Under the statute, loss of familial relationship includes “the loss of the comfort,

child or children, the trier of fact may award damages

In addition, where the decedent is a parent of a minor p. 4 4

granting the respondent’s motion for summary judgment. son’s underlying “bodily injuries.” Accordingly, the trial court did not err in amount available under the Policy for all damages arising from their deceased underlying bodily injury. estate, have already received from the respondent the maximum per person familial relationship is a consequential damage derivative of the original the surviving parent or child. We conclude that like loss of consortium, loss of and companionship of the deceased,” which does not involve bodily injury to BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

injury limit under the Policy. Thus, the petitioners, on behalf of their son’s injury” claims, they do not trigger a separate and additional “per person” bodily individual loss of familial relationship claims do not constitute separate “bodily (2) provides for compensation for “loss of comfort, society, affection, guidance, claim filed on behalf of their deceased son’s estate. Because the petitioners’ damages for loss of consortium in a wrongful death action (RSA 556:12, II); and The respondent paid the petitioners $100,000 for the wrongful death language of RSA 556:12, III: (1) tracks the statutory language providing for RSA 556:12, II (decedent spouse) and RSA 507:8-a (injured spouse). The plain limit under the Policy. Therefore, it does not trigger a separate and additional per person bodily injury language that defines “bodily injury” in terms analogous to sickness or disease. constitute a separate “bodily injury,” and it is not included in insurance policy

relationship (RSA 556:12, III) is analogous to a loss of consortium claim under The statutory claim for damages attributable to loss of familial

122 N.H. at 7 p. 4 48; Bean, 122 N.H. at 684. additional per person bodily injury limit of insurance coverage. Id.; Bisson,