2006-613, SCOTT A. MURLEY v. HANOVER INSURANCE CO.

The defendant, Hanover Insurance Company, appeals the

memorandum of law), for MaryBeth St. Laurent, as amicus curiae. Normand & Associates, P.A., of Manchester (James A. Normand on the

brief and orally), for the defendant. Horn & Lauretti, of Boston, Massachusetts (Michael S. Kinson on the

Zumbado on the brief, and Mr. Zumbado orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Jensen & Zumbado, of Hampton Falls (John P. Elmore and Hector E.

editorial errors in order that corrections may be made before the opinion goes No. 2006-613 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham 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 element of loss.

p. 2 upon an exclusion in the policy that prohibits duplicate payments for a single relying upon the fact that it had already paid $5,000 in medical payments and leaving a balance of $27,500. The defendant, however, paid only $22,500,

policy. collected from Martino’s policy was deducted from the arbitration award,

same elements of loss under this coverage and:

2. Any Underinsured Motorists Coverage provided by this damages was determined to be $52,500. The $25,000 that the plaintiff 1. Part B or Part C of this policy; or for the remaining damages. Through arbitration, the value of the plaintiff’s damages, he pursued an underinsured motorist claim against the defendant C. No one will be entitled to receive duplicate payments for the

. . . .

as a whole.” LIMIT OF LIABILITY of the intent of the legislature as expressed in the words of a statute considered 259:61, I. “In matters of statutory interpretation, this court is the final arbiter. . . .

264:15, I (2004) and RSA 259:61, I (2004). This appeal followed. The insurance policy at issue provides: the policy limiting recovery for a single element of loss was void under RSA his liability coverage. Because the plaintiff suffered more than $25,000 in Id. defines the words used, we ascribe to them their plain and ordinary meanings. first look to the statute’s language itself, and, unless the statutory scheme

Swain v. Employers Mut. Cas. Co., 150 N.H. 574, 576 (2004). We

statutory policy nor statutory requirements under RSA 264:15, I, and RSA On appeal, the defendant argues that the exclusion violates neither

underinsured motorist coverage. The superior court ruled that the exclusion in obtained $25,000 from Martino’s insurance company, which was the limit of The plaintiff brought suit to recover the remaining $5,000 under his $5,000 policy limit from the defendant in medical payments coverage and accident caused by William Martino in Manchester. The plaintiff collected the

from the defendant. In February 2002, he sustained injuries in a motor vehicle underinsured motorist coverage and $5,000 in medical payments coverage p. 3 3

policy or requirements. exclusion. Thus, we must determine whether the exclusion violates statutory that a reasonable person would not understand the meaning and effect of the policy or violates a statutory requirement. Id. at 174. Neither party argues (1986). Exclusions are void only when their application defeats a statutory insured. Empire Ins. Co. v. National Union Fire Ins. Co., 128 N.H. 171, 175 to convey their meaning and effect to a reasonable person in the position of the same elements of loss under this coverage and: have the right to limit their liability by exclusions written in terms appropriate Absent public policy or statutory provisions to the contrary, insurers

the same injury under the underinsured motorist claim. recovering both $5,000 under the medical payments coverage and $5,000 for The parties agree that this language purports to prohibit the plaintiff from

policy. 2. Any Underinsured Motorists Coverage provided by this 1. Part A or Part B of this policy; or

B. No one will be entitled to receive duplicate payments for the

. . . .

LIMIT OF LIABILITY

. . . .

PART C – UNINSURED MOTORISTS COVERAGE

. . . .

policy. 2. Any Underinsured Motorists Coverage provided by this 1. Part A or Part C of this policy; or same elements of loss under this coverage and: B. No one will be entitled to receive duplicate payments for the

. . . .

LIMIT OF LIABILITY

. . . .

PART B – MEDICAL PAYMENTS COVERAGE

. . . . p. 4 4

$7,000 settlement and no more. deduction clause is given effect, however, [the daughter] gets her recovered $500 in medical payments. If the medical payments

and liability coverage, thus eliminating the inequality created by the policy in defendant’s policy deducts medical payments from both underinsured motorist The defendant attempts to distinguish Bertolami by stating that the

Id. at 312.

could have settled with the defendant for $7,000 and still been injured through the plaintiff’s negligence, [the daughter] riding in the plaintiff’s insured automobile, and [the daughter] had liability coverage. Thus, if the plaintiff and her daughter had been The exclusion relates only to uninsured motorist coverage and not

following manner: injuries. Id. at 312. We described the inequality created by the policy in the in had the plaintiff, rather than the uninsured motorist, been liable for her placed the daughter in an inferior position to that which she would have been which was the predecessor statute to RSA 26 p. 4 4:15, I, because the exclusion policy’s deduction of medical payments violated RSA 268:15-a (Supp. 1970), $500 medical payment to the daughter. Id. at 309-10. We held that the uninsured motorist coverage recovery because the insurer had already made a plaintiff’s insurance company deducted $500 from the plaintiff’s $7,000 a deduction under liability coverage. Id. at 310. Under the policy, the holder who was injured by an uninsured motorist, but did not provide for such cannot recover the full amount of damages from the tortfeasor. that medical payments could be deducted from payments made to a policy designed to provide an innocent victim with a source of restitution when he coverage elected.” Uninsured motorist statutes, like RSA 264:15, I, are motorist. Bertolami, 120 N.H. at 309. The plaintiff’s insurance policy provided In Bertolami, the plaintiff’s minor daughter was injured by an uninsured The case before us presents the same issue that we decided in Bertolami.

308, 312 (1980) (applying predecessor statute). Co., 1 p. 4 41 N.H. 27, 29 (1996); Bertolami v. Merchants Mutual Ins. Co., 120 N.H. they protect themselves against liability. Turner v. St. Paul Prop. & Liab. Ins. protect themselves against injury from an uninsured motorist to the extent that N.H. at 576. The legislature intended RSA 264:15, I, to allow policy holders to

uninsured motorist coverage shall automatically be equal to the liability amount greater than the minimum coverage required by RSA 259:61, his pertinent part: “When an insured elects to purchase liability insurance in an finding the exclusion void under RSA 26 p. 4 4:15, I. RSA 264:15, I, states, in We first address the defendant’s argument that the trial court erred in insurance policy in this case would not eliminate the inequality condemned in p. 5 provision would violate statutory policy, it would be void, and the defendant’s 264:17, because it would, in effect, constitute subrogation. Because such a paid to the daughter. To do so would violate the statutory policy stated in RSA

withhold $500 from that amount to offset the $500 in medical benefits that it liability.”

under liability coverage is void, the same inequity that arose in coverages, the provision is void. Once that prohibition of duplicate payments

court’s ruling that the defendant’s policy violates RSA 264:15. company, in its role as insurer of the daughter, could not deduct or otherwise RSA 264:15, I, and interpreted in our decision in Bertolami, 120 N.H. at 312. Accordingly, we agree with the trial motorists to the extent that he protects himself against ordinary personal coverage to the mother, paid $7,000 in damages to the daughter, the insurance intent to allow a person to protect himself against injury from uninsured Under this scenario, if the insurance company, in its role as provider of liability uninsured motorist claim. This inequity violates RSA 264:15’s “legislative paying damages to the daughter to compensate her for the mother’s negligence. liability claim, but prevents duplicate medical benefits payments under an arises here. The policy permits duplicate medical benefits payments under a

payments for the same element of loss under its liability and medical benefits To the extent that the defendant’s insurance policy prohibits duplicate

receive only $7,000. This result is prohibited by the statutory policy stated in the daughter was injured by an uninsured motorist, then the daughter would negligence. If the insurer could enforce the double recovery exclusion where payments she is due; and (2) it would provide liability coverage to the mother, the daughter would receive $7,500 if she were injured by her mother’s Bertolami. Because RSA 264:17 prohibits subrogation against a liability claim,

medical costs under coverage provided for pursuant to RSA 264:16.” In insurer who has paid or reimbursed, to or for the benefit of the insured,

statute, however. would be the “insurer” of the daughter, paying the daughter the medical insured. The mother’s insurance company thus would play two roles: (1) it while the mother would have been treated as the “third party” who injured the would have been treated as the “insured,” as that term is used in RSA 264:17, Bertolami, had the mother’s negligence injured her daughter, the daughter

subrogation against any third party shall not exist or be claimed in favor of the RSA 264:17 (2004) prohibits subrogation, stating: “The right of

under uninsured motorist coverage. Such a policy would violate a different defendant’s policy prevents double recovery under liability coverage as well as would have received a total of only $7,000, rather than $7,500, because the had the daughter been injured through the mother’s negligence, the daughter daughter from Bertolami been riding in the mother’s insured automobile, and Bertolami. The defendant asserts that, under its policy, had the mother and p. 6 6

plaintiff to recover under each endorsement. BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

exclusion violates RSA 259: p. 6 61, I. exclusion invoked by the defendant is void, we need not determine whether the Because we agree with the superior court’s determination that the

read as if the offending language were not there. Id. at 313. of the clause does not require rewriting the policy. The policy is simply now

premium for each type of coverage, we see nothing unjust in allowing the excess of what he purchased. We disagree. Where a plaintiff pays a separate the insurance policy because it would allow the plaintiff to recover benefits in medical payments and uninsured motorist payments would require rewriting The defendant argues that allowing the plaintiff to recover both the