2006-530, KRYSTIE CARTER v. CONCORD GENERAL MUT. INS.

Respondent Concord General Mutual Insurance

General Mutual Insurance Company. Ann Dempsey on the brief, and Mr. Rehnborg orally), for respondent Concord Wiggin & Nourie, P.A., of Manchester (Gordon A. Rehnborg, Jr. and Mary

brief and orally), for the petitioner. Normandin, Cheney & O’Neil, PLLC, of Laconia (James F. Lafrance on the to press. Errors may be reported by E-mail at the following address:

CONCORD GENERAL MUTUAL INSURANCE COMPANY & a.

editorial errors in order that corrections may be made before the opinion goes No. 2006-530 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Belknap 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 off public roads.” p. 2 pulled by an automobile, pick-up or van and/or it is mainly designed for use characterization by [Concord General] is meant to indicate that [it] cannot be [wagon] that ran over her feet as a ‘farm trailer’ to the extent that this Arguments.” In the trial court, Carter disputed “the characterization of the the object that ran over [her] feet will be apparent from the body of the parties’

“[t]he nature of the parties’ dispute with respect to the term used to describe

labels or terms used to describe the object that ran over [her] feet,” noting that

dispute the facts set out in Concord General’s brief, she “does dispute the refers to the Appleview wagon as a “farm wagon,” and while Carter does not respect to this [wagon] that could be submitted.” In its brief, Concord General 2

advises us that those photographs “constitute[ ] all the available evidence with

reveal any genuine issue of material fact, and if the moving party is entitled to Surety Co., 153 N.H. 371, 373 (2006). If our review of the evidence does not in the light most favorable to the non-moving party. Tech-Built 153 v. Va. the affidavits and other evidence, and all inferences properly drawn from them, When we review a trial court’s grant of summary judgment, we consider

appeal followed. wagon was capable of being hitched to other kinds of motor vehicles. Carter and medical payments coverage under her policy with Concord General. This the mechanism by which the wagon was hitched to the tractor or whether the ruled, however, that Carter was entitled to both uninsured motorists coverage The record contains no information, other than the photographs, concerning judgment, and that ruling is not at issue in this appeal. The trial court also tractor operator’s liability insurer prevailed on its motion for summary declaratory judgment to determine coverage. See RSA 491:22 (1997). The Both insurers denied coverage; thereafter, Carter filed a petition for a liability policy and her own Concord General personal auto insurance policy. After her accident, Carter made claims against both the tractor operator’s

part of the record on appeal show that it has neither brake lights nor fenders.

by a tractor.

Photographs of the Appleview wagon submitted to the trial court and as

for a “haunted hayride” event where her feet were run over by a wagon pulled It is undisputed that in October 2003, Carter was at Appleview Orchard

p. 3 defined in the policy’s general definition section: “‘Trailer’ means a vehicle

under the medical payments section because the Appleview wagon was a farm unambiguously informed Carter that coverage for her injuries was not available

explain its reasoning. On appeal, Concord General argues that the policy

mean “[y]ou . . . [a]s a pedestrian when struck by . . . a motor vehicle designed [s]ustained by an ‘insured’.” The policy then defines the term “insured” to medical . . . services because of ‘bodily injury’ . . . [c]aused by accident; and . . .

The trial court found the foregoing language to be ambiguous but did not

listed in 1. or 2. above.” . . . [and to] mean[ ] a farm wagon or farm implement while towed by a vehicle

that Concord General “will pay reasonable expenses incurred for necessary The medical payments section of the policy provides, in pertinent part,

turn. General and in favor of coverage. We consider each portion of the policy in policy were ambiguous and, therefore, properly construed against Concord section and the uninsured motorists endorsement of Carter’s Concord General In its order, the trial court determined that both the medical payments

insurance policy language is a question of law for this court to decide. gymnastics to find a term ambiguous. Catholic Med. Ctr., 151 N.H. at 701. which party brings the petition. RSA 491:22-a (1997). The interpretation of Ins. Co., 147 N.H. 392, 394 (2001). However, we will not perform linguistic of an exclusionary clause. Contoocook Valley Sch. Dist. v. Graphic Arts Mut. against the insurer is particularly applicable when the language at issue is part Indem., 151 N.H. 699, 701 (2005). Our practice of construing ambiguities and will be construed against the insurer. Catholic Med. Ctr. v. Executive Risk possible, and one of them provides coverage, the policy contains an ambiguity 154 N.H. 553, 562 (2006). If more than one reasonable interpretation is the policy as a whole. OB/GYN Assocs. of S.N.H. v. N.H. Ins. Guaranty Assoc., language used by the parties its reasonable meaning, based upon a reading of Built, 153 N.H. at 373. When interpreting an insurance policy, we give the

insurance policy, the burden of proof is always on the insurer, regardless of In a declaratory judgment action to determine the coverage of an

review the trial court’s application of the law to the facts de novo. Id. judgment as a matter of law, we will affirm the trial court’s decision. Id. We auto, pickup or van. Because the term “‘trailer’ of any type” is not ambiguous,

p. 4 use on public roads,” so long as it was being towed by a private passenger

towed vehicle was a “farm wagon or farm implement” not “designed mainly for mainly for use on public roads,” and could qualify as an “insured” even if the vehicle, she would qualify as an “insured” if the towed vehicle was “designed

roads,” but if a pedestrian policy holder is struck by a vehicle towed by a motor

the policy’s definition of “trailer.” We do not agree.

“insured” only when that motor vehicle was “designed mainly for use on public of any type.” A pedestrian policyholder struck by a motor vehicle is an appears: “a motor vehicle designed for use mainly on public roads or a ‘trailer’

it could be pulled by a private passenger auto, pickup or van, as required by

type” is most reasonably read in the context of the larger phrase in which it trailers excluded from the definition of “trailer.” Rather, the qualifier “of any read to expand the definition of “insured” to include pedestrians struck by phrase “a ‘trailer’ of any type,” the qualifier “of any type” cannot reasonably be

photographs of the wagon disclose that it was designed in a manner such that “trailer” in the definition section, and that even if the policy is unambiguous, type” in the medical payments section and the more narrow definition of an ambiguity is created by the tension between the phrase “a ‘trailer’ of any

been defined. Moreover, as the term “trailer” appears in quotation marks in the

private passenger auto, pickup or van. Carter contends, to the contrary, that photographs of the wagon – that the wagon was not designed to be pulled by a Carter produced no evidence to counter its argument – based upon

she is a pedestrian struck by any type of “trailer,” as that term has already

“trailer” as that term is defined in the policy. Concord General also notes that

latter does not. The latter phrase merely says that a person is an “insured” if but “a ‘trailer’ of any type.” The former phrase might create ambiguity; the meaning. More importantly, the phrase at issue is not “a trailer of any type” any type,” the term “trailer” has already been given its narrow, specialized

pulled by a private passenger auto, pickup or van, it was, necessarily, not a wagon was being pulled by a tractor; and (4) because the wagon was not being private passenger auto, pickup or van; (3) it is undisputed that the Appleview

of the policy, meaning that by the time a reader gets to the phrase “a ‘trailer’ of First, the general definition section comes before the medical payments section narrower definition of “trailer” in the general definition section. That is not so. phrase “a ‘trailer’ of any type” creates a conflict between that provision and the

implement only qualifies as a “trailer” under its policy when it is towed by a

petitioner argues that giving full effect to the qualifier “of any type” in the To begin, we discern no ambiguity in the language of the policy. The

constitute a farm wagon or farm implement”; (2) that a farm wagon or farm photographs of the Appleview wagon “conclusively establish that [it] would the definition of “insured.” More specifically, Concord General argues that: (1)

or van, thus placing it outside the definition of “trailer” and placing her outside wagon being pulled by a tractor, rather than a private passenger auto, pickup p. 5 5

appropriate and Petitioner is entitled to medical payments coverage.” question we review upon what a particular vehicle passenger auto, pickup or van. The policy’s definition of “trailer” is not based lights. Hampshire, all motor vehicles, except farm tractors, are required to have brake

of the motor vehicle towing it, and would not compensate by having brake which is required to have brake lights – the wagon would block the brake lights could not be pulled by an auto or pickup or van, summary judgment was lights. If it were hitched to a private passenger auto, pickup or van – each of not do so. However, because the application of the law to the facts is a demonstrate that the trailer involved in this accident was designed such that it an auto or pickup or van” and further argues that “[s]ince Respondent did not See RSA 266:38 (2004). The wagon in this case does not have brake obligated to prove that the wagon was incapable of being pulled by a private Concord General had to prove when she suggests that Concord General was not designed to be pulled by a private passenger auto, pickup or van. In New passenger auto, pickup or van. In other words, Carter misapprehends what The lack of brake lights demonstrates that the wagon in this case was that the wagon in question was not designed to be pulled by a private roads). despite being licensed for, properly equipped for, and capable of using public that “integrated toolcarrier” was “designed for use mainly off public roads” 748, 7 p. 5 52 (2002) (finding, in context of uninsured motorist coverage dispute, vehicle was designed to do. Cf. Trombley v. Liberty Mut. Ins. Co., 148 N.H.

ruling that the medical payments provision was ambiguous, it had no need to photographs, that the wagon is “designed and capable of being pulled by either argument in her motion for summary judgment, but given the trial court’s

proving a lack of coverage, that burden required Concord General only to prove While Carter correctly states that Concord General had the burden of

guards, or flaps. Carter argues, without pointing to any fact other than the wagon falls within the policy’s narrow definition of “trailer.” Carter made this show, however, that the wagon has neither brake lights, nor fenders, fender photograph depicts the precise hitching mechanism. The photographs do of four photographs. In each one, the wagon is hitched to a tractor. No General. The facts in this case concerning the wagon – such as they are – consist

determination ourselves.

Carter also argues that even if the policy is not ambiguous, the Appleview

the policy contains an ambiguity that must be construed against Concord we reverse the trial court’s determination that the medical payments section of p. 6 6

for use off public roads while not on public roads.” those exclusions, which covers “any vehicle or equipment . . . [d]esigned mainly that falls within any one of six described categories. At issue here is the fifth of

where those requirements do not apply. public roads. Thus, it necessarily was designed mainly for use off public roads, wagon was not designed to meet either of these requirements for operating on to be emitted from any wheel or tire,” RSA 2 p. 6 66:57 (2004). The Appleview guards or flaps which shall effectively reduce the throw, spray or splash likely the throw, spray, or splash of water, dirt, or other matter [or] suitable fender trailer must have brake lights, see RSA 266:38, and “proper fenders to prevent off public roads.” To operate lawfully on public roads in New Hampshire, a with Concord General that the Appleview wagon was “[d]esigned mainly for use “‘uninsured motor vehicle’ . . . [does not] include[ ] any vehicle or equipment” the property of Appleview Orchard, not on a public road. Moreover, we agree any type.” The endorsement, however, contains an exclusion providing that As a preliminary matter, it is undisputed that the accident took place on defines “‘[u]ninsured motor vehicle’ [to] mean[ ] a land motor vehicle or trailer of sustained by an ‘insured’ and caused by an accident.” The endorsement not on public roads.” We disagree. operator of . . . [a]n ‘uninsured motor vehicle’ . . . because of ‘bodily injury’ “any vehicle or equipment . . . [d]esigned mainly for use off public roads while damages which an ‘insured’ is legally entitled to recover from the owner or unambiguously limited the term “trailer of any type” by expressly excluding According to Concord General, the uninsured motorists endorsement

payments section of her policy. General correctly denied Carter’s claim for coverage under the medical

provides, in pertinent part, that Concord General “will pay compensatory The uninsured motorists endorsement of the Concord General policy to be pulled by a private passenger auto, pickup or van. lights. The trailer in this case, designed without brake lights, was not designed B

the purpose of qualifying for medical payments coverage. Accordingly, Concord Carter was not struck by “a ‘trailer’ of any type,” she was not an “insured” for medical payments section of Carter’s Concord General policy, and because passenger auto, pickup or van, it was not a “trailer” within the meaning of the Because the Appleview wagon was not designed to be pulled by a private

by a private passenger auto, pickup or van is one whose design includes brake lights of its own. Accordingly, we conclude that a trailer designed to be pulled one that injured Carter. p. 7 the shift in language is an exemption from the exclusion for trailers such as the

It is also reasonable to conclude that one of the different meanings conveyed by

phrase in the main definition, categories of exclusion were intended to cover exactly the same items as the the concrete example of a pickup truck, a boat trailer and an air compressor wagon is, indisputably, a “trailer of any type.” If the phrase introducing the six Perhaps our construction of the relevant terms is best illustrated with or equipment.” The former phrase plainly includes the Appleview wagon; that

narrower meaning than the phrase “land motor vehicle or trailer of any type.” insured. phrase “any vehicle or equipment” was intended to convey a different and same phrase in both places. Accordingly, it is reasonable to conclude that the type,” that intent would have been most clearly communicated by using the

shift in language from “land motor vehicle or trailer of any type” to “any vehicle equipment,” or if that phrase is ambiguous, then Carter is entitled to coverage. Here, a reasonable person in the position of the insured would note the to provide coverage. If the wagon does not qualify as “any vehicle or (1986).

Empire Ins. Cos. v. National Union Fire Ins. Co., 128 N.H. 171, 175

convey their meaning and effect to a reasonable person in the position of the have a right to limit their liability by exclusions written in terms appropriate to course, absent statutory provisions or public policy to the contrary, insurers equipment” that falls within any one of six described categories. And, of type” and subsequently limits that definition by excluding “any vehicle or defining an “uninsured motor vehicle” as “a land motor vehicle or trailer of any The definition section of the uninsured motorists endorsement begins by

casual reading of the policy as a whole. Catholic Med. Ctr., 151 N.H. at 701. the “off public roads” exclusion applies, and Concord General is not obligated reasonable person in the position of the insured, based upon more than a apply an objective standard, construing the terms in context and as would a When disputed terms are not defined in the policy or by our cases, we

Appleview wagon. We hold that it is. whether it is also reasonable to interpret that phrase not to encompass the or equipment” to include the Appleview wagon. The question before us is analysis that follows, that it is reasonable to interpret the phrase “any vehicle See Catholic Med. Ctr., 151 N.H. at 701. We assume, for purposes of the

exclusionary categories. If the wagon qualifies as “any vehicle or equipment,” the phrase “any vehicle or equipment” which introduces the policy’s list of six applicability of the “off public roads” exclusion depends upon construction of roads” and was “not on [a] public road[ ]” at the time of the accident, the Because the Appleview wagon was “[d]esigned mainly for use off public within any of the six exclusionary categories. p. 8 the compressor would be uninsured motor vehicles only if they did not fall uninsured motor vehicle under any circumstances, while the pickup truck and

boat trailer, by virtue of its exemption from the exclusion, would be an

accordance with this opinion. in part and remand with instructions that the trial court enter judgment in

equipment, would be neither “vehicle” nor “equipment.” In this example, the would be “equipment”; and the boat trailer, as a type of trailer other than list of exclusions, the pickup truck would be a “vehicle”; the air compressor DALIANIS, DUGGAN and GALWAY, JJ., concurred.

policy, as excluding the Appleview wagon. and remanded. is reasonable to construe the term “vehicle,” in the context of this particular Affirmed in part; reversed in part; motorized vehicles. And because the wagon in this case was not motorized, it construe the term “vehicle,” when used subsequently, as referring only to

construed as providing coverage for Carter’s injuries, we affirm in part, reverse Because only the uninsured motorists endorsement may be properly

the phrase “a land motor vehicle.” That previous usage makes it reasonable to referring only to a motor vehicle, given the previous use of the word “vehicle” in to construe the word “vehicle” in the phrase “any vehicle or equipment” as unreasonable, in the context of the specific policy language we are interpreting, things “a means of carrying or transporting something”). But it is not Dictionary 2538 (unabridged ed. 2002) (defining “vehicle” as, among other something else, and the compressor would be the type of trailer that is not to carry something else is not a vehicle. See Webster’s Third New International type.” The boat trailer would be the type of trailer that is designed to carry At first blush, it might seem unreasonable to say that a trailer designed vehicle” while the boat trailer and compressor would each be a “trailer of any

of an “uninsured motor vehicle,” the pickup truck would be a “land motor designed to be towed by a truck with a trailer hitch. In terms of the definition