2010-303 Yvette Bouffard v. State Farm Fire & Casualty Company

Bernstein Shur, P.A.

No. 2010-303

Merrimack

Percy Bouffard, have been married for forty-eight years. From 1995 to 2005, ___________________________ The record supports the following facts. The plaintiff and her husband, (Smukler DUGGAN, J. The plaintiff, Yvette Bouffard, appeals the Trial Court’s

Wiggin & Nourie, P.A.

denying its earlier motion for summary judgment. We affirm. The insurer cross-appeals, alleging that the Trial Court (Conboy, J.) erred in policy issued by the defendant, State Farm Fire & Casualty Company (insurer). entitled to uninsured motorist (UM) coverage under her umbrella insurance , J.) denial of her request for a declaratory judgment that she is

Ann Dempsey on the brief, and Mr. Rehnborg orally), for the defendant.

G. Aslin on the brief, and Mr. Aslin orally), for the plaintiff.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as she read it. She also testified that she had the opportunity to review the p. 2 testified that her husband’s signature was on the umbrella application when opportunity to read all three, including the umbrella application. The plaintiff representative showed the plaintiff all three applications and provided her the with the plaintiff and obtain her signature. Inside the Bouffards’ truck, the The representative then informed the husband that she needed to speak

whether he wished to reject such coverage. practice was to explain UM coverage to the applicant and ask the applicant she could not specifically recall her interaction with the husband, her normal coverage for recreational vehicles only. The representative testified that while print and believed that the representative followed his request to reject UM testified that when he signed the UM provision, he could not read the small mistakenly checked the box rejecting UM coverage on all vehicles. He also reject UM coverage only for recreational vehicles and that the representative hearing, the husband testified that he told the representative that he wished to husband and asked him to sign in the space below the UM provision. At the

The representative discussed these UM coverage options with the

reject it for all vehicles or for recreational vehicles only. the applicant chose to reject UM coverage, he could then check a box to either I reject the opportunity to purchase this option as part of this application.” If opportunity to purchase Uninsured/Underinsured Motor Vehicle Coverage, and stated: “In keeping with the laws of my state, I have been offered the insurance policies. The umbrella policy application included a provision that and completed applications for automobile, homeowners, and umbrella

Once inside, the husband met with a customer service representative

obtain the insurance policies. testified that this meant that he should complete the necessary paperwork to paperwork. The plaintiff authorized her husband to “get it done.” She later car while the husband entered the insurance agency to complete the necessary wheelchair, could not enter. They agreed that the plaintiff would remain in the result, the plaintiff, who suffers from multiple sclerosis and was confined to a arrived, they discovered that the building did not have wheelchair access. As a automobile, and umbrella insurance policies to State Farm. When they Farm Insurance (the insurance agency) to transfer their homeowners, January 11, 2005, they went together to the Concord office of Yacyshyn State In late 2004, the Bouffards decided to switch insurance providers. On

Cyr and Rogers that included $1 million in UM coverage. review the policies he had purchased. They had an umbrella policy through insurance transactions or the husband would go alone and the plaintiff would During this time, they would either go to Cyr and Rogers together to handle they obtained their family insurance policies from Cyr and Rogers Agency. unless coverage is provided therein or supplemental thereto at

p. 3 respect to a vehicle registered or principally garaged in this state No policy shall be issued under the provisions of RSA 264:14, with

applying RSA 264:15, which, in pertinent part, provides: The plaintiff contends that the trial court erred in interpreting and

court’s initial summary judgment ruling. plaintiff then appealed that decision and the defendant cross-appealed the trial insurance application, including whether or not to reject [UM] coverage.” The was within the scope of Mr. Bouffard’s agency to make decisions about the Therefore, the court concluded, the defendant met its burden to prove “that it reviewing the application in the car or after the policy arrived by mail. her husband’s actions and ratified his decision when she failed to object after to do so. The court also determined that the plaintiff exerted some control over agency and purchase insurance for both of them and that the husband agreed court found that the plaintiff authorized her husband to go into the insurance defendant sustained its burden to prove the factual elements of agency. The The trial court subsequently held a hearing and determined that the

the plaintiff’s agent and whether the plaintiff later ratified his acts. judgment because factual issues remained as to whether the husband acted as rejected such coverage. The court, however, denied both motions for summary provide the plaintiff with UM coverage unless it could prove that she personally reject it for the plaintiff. The court concluded that the insurer was obligated to rejection of UM coverage on the application was ineffective as a matter of law to motions for summary judgment. The trial court ruled that the husband’s because she did not personally reject such coverage. The parties filed crossdeclaration that she was entitled to UM coverage under the umbrella policy The plaintiff then brought a declaratory judgment action seeking a

because UM coverage was rejected on the application. denied the claim pursuant to RSA 264:15 (2004) (amended 2007 & 2009) plaintiff sought UM coverage under the umbrella policy. The insurer, however, personal automobile policy. Because her damages exceeded this sum, the $250,000 from the tortfeasor’s insurer and her UM coverage under her accident and the plaintiff suffered bodily injuries. She recovered a total of On August 4, 2006, the Bouffards were involved in an automobile

and believed that it included UM coverage. home. The plaintiff testified that she read the umbrella policy when it arrived homeowners policy, and an umbrella policy, which were delivered to their The insurer subsequently issued the Bouffards an automobile policy, a

representative never asked her to sign it. application and did not point out any mistakes on it. However, the p. 4 4

facts before it, that the board had not authorized the plan administrator’s acts. authorize his agent to reject UM coverage. Rather, it decided, based upon the However, the court did not conclude that a principal could never

to make “a meaningful and informed selection” of UM coverage. Id motorist coverage equal to the limits of liability purchased, unless. at 597. was not binding on the board because the board did not have the opportunity court determined that the plan administrator’s selection of a lower UM limit Relying upon Shirley v. Centennial Insurance Co. expressly discuss rejection of full UM coverage with the board. Id. Thus, the for only the minimum UM coverage limits permitted by law, the broker did not While an insurance broker initially proposed to the board a policy that provided selected a lower UM coverage limit than the policy’s bodily injury limit. Id. insurance policy. Shirley, 829 So. 2d at 595. The administrator ultimately plan administrator to sign the required documents to purchase an automobile board of trustees of a charitable organization delegated authority to the trust’s principles of agency and contract do not apply to UM coverage. In Shirley, the 637 N.E.2d 109 (Ohio Ct. App. 199 p. 4 4), the plaintiff argues that common law Ct. App. 2002), and Braden v. State Farm Mutual Automobile Insurance Co. policies described in RSA 259:61, shall also provide uninsured, see paragraph umbrella or excess policies that provide excess limits to, 829 So. 2d 593 (La. While the existence of an agency relationship is ordinarily a question of fact, including death resulting therefrom. . . . For the purposes of this coverage if the principal expressly and knowingly authorizes such rejection. support them, we review its application of the law to the facts de novo”). named insured must reject such coverage, an agent may only reject UM the trial court’s factual findings, provided there is evidence in the record to See ACAS Acquisitions v. Hobert The plaintiff argues that because RSA 264:15 expressly provides that the, 155 N.H. 381, 400 (2007) (“while we defer to regarding an agent’s ability to reject UM coverage on behalf of his principal. plaintiff’s agent, we first decide whether the trial court applied the correct law (Emphasis added.) the trial court correctly ruled as a factual matter that the husband acted as the show a knowing rejection of [UM] coverage.” Thus, before determining whether contends that “a general agency relationship alone is not legally sufficient to the plaintiff argues that the trial court erred as a matter of law because she Herman v. Monadnock PR-24 Training Council, 147 N.H. 754, 758 (2002),

run vehicles because of bodily injury, sickness or disease, from owners or drivers of uninsured motor vehicles, and hit-and-

the named insured rejects such coverage.

insured thereunder who are legally entitled to recover damages a liability policy under this chapter, for the protection of persons least in amounts or limits prescribed for bodily injury or death for p. 5 5

to alter common law agency principles. See insured.” However, RSA 264:1 p. 5 5 does not clearly indicate any legislative intent provided a statutory right to UM coverage unless rejected by the “named to the rejection of UM coverage. The plaintiff is correct that the legislature has We see no reason why settled principles of agency law should not apply

unbeneficial aspect of the policy should not apply. See Messerly v. State Farm negotiated by an agent on the one hand, but at the same time claim that one decline to allow a principal to accept the benefits of an insurance policy as the statute clearly expresses that intent” (quotation omitted)). Moreover, we p. 5 599 (2010) (“we will not interpret a statute to abrogate the common law unless State v. Demesmin, 159 N.H. 595,

insufficient to reject UM coverage in Braden However, after determining that implied or apparent authority was persuasive. contradictory case law, we do not find the plaintiff’s reliance upon Braden to be agent based upon a non-express agency relationship. See id. In light of this estoppel, it nonetheless recognized that UM coverage could be rejected by an concluded that the facts did not support an implied agency or agency by Ins. Co., 678 N.E.2d 281, 284 (Ohio Ct. App. 1996). While the court ultimately authority to “justify an agency by estoppel,” Owens v. State Farm Mut. Auto. impliedly authorized to reject UM coverage or created an appearance of contrary conclusion in a later case when it considered whether an agent was

agent’s rejection of UM coverage must be knowing and express. Id We are also unpersuaded by the plaintiff’s reliance upon Braden. paying the policy premiums, the court concluded that any ratification of an While the insurer also argued that the daughter ratified the mother’s act by authorized agent could reject UM coverage on behalf of the insured. Id. at 111. not sign the application. Id. The court determined that only an expressly explained the policy or the UM document to the daughter and the daughter did UM coverage from the policy limit to a lesser amount. Id. The agent never presence and then signed the insurance application and a document reducing at 110. The mother discussed different insurance options in the daughter’s her mother and was subsequently injured in an accident. Braden, 637 N.E.2d case, the named insured obtained an automobile policy with the assistance of . In that

application of common law agency principles to UM coverage. her father). Accordingly, we disagree with the plaintiff that Shirley rejected the that the daughter had any authority to sign a UM rejection form on behalf of coverage but declining to make such a finding where there was no evidence 200 p. 5 5) (recognizing that an agent may have apparent authority to reject UM Freeman v. National Automotive Ins. Co., 91 p. 6 6 So. 2d 279, 283 (La. Ct. App. Horace Mann Ins. Co., 491 So. 2d 695, 699 (La. Ct. App. 1986); see also mother’s rejection of UM coverage was binding upon the son. Demolle v. or apparent agency status existed between a mother and her son, so that the Id. Indeed, in an earlier case, the same court concluded that either an implied 6

and her husband had discussed the insurance coverage they wished to purchase insurance for both of them. Additionally, in the past, the plaintiff testified that this statement reflected her intent that her husband should acquire insurance on her behalf by telling him to “get it done.” The plaintiff element, the trial court found that the plaintiff authorized her husband to relationship based upon implied actual authority. With regard to the first We hold that the record supports the trial court’s findings of an agency

intent.” Id may be either express or implied from the parties’ conduct or other evidence of “The granting of actual authority and consent to act with such authority Agency § 7, comment c; see also Noble, 854 N.E.2d at 932. from customs, or from the relations of the parties. See Restatement (Second) of Demetracopoulos, 130 N.H. at 215. Such authority can arise from words used, from acquiescence by the principal in a course of dealing by the agent. exert some control over the agent’s actions.” Dent reasonable incident or construction of the terms of express authority, or results agent’s consent to so act; and (3) the understanding that the principal is to comments a-c (1958). Implied authority, on the other hand, follows as a authorization from the principal that the agent shall act for him or her; (2) the N.H. at 213; see also Restatement (Second) of Agency § 7, comments a-c, § 2 p. 6 6, manifests its authorization of the actions of its agent.” Demetracopoulos “[T]he necessary factual elements to establish agency involve: (1), 130

. “Express authority arises when the principal . . . explicitly

husband actual authority to reject UM coverage on her behalf. these three elements, and, thus, concluded that the plaintiff granted her omitted). The trial court determined that the insurer met its burden of proving relationship is a question of fact. Dent v. Exeter Hosp. between the plaintiff and her husband. As noted, the existence of an agency, 155 N.H. at 792 (quotation principal, we next review the trial court’s finding of an agency relationship Having concluded that an agent may waive UM coverage on behalf of the

have reached the same decision based upon the evidence before it. See id. trial court’s findings are supported by the evidence if a reasonable person could Demetracopoulos v. Strafford Guidance Ctr., 130 N.H. 209, 213 (1987). The unsupported by evidence or are erroneous as a matter of law. See (2007). We will not disturb the trial court’s findings unless they are

Goode v. Daugherty, p. 6 694 S.W.2d 314, 31 p. 7 7 (Tenn. Ct. App. 1985). Nationwide Mut. Ins. Co. v. Prioleau, 597 S.E.2d 165, 168 (S.C. Ct. App. 2004); Farm Mut. Auto. Ins. Co. v. Noble, 854 N.E.2d 925, 932 (Ind. Ct. App. 2006); existence of an agency relationship, whether actual or apparent. See State waive UM coverage on behalf of a principal so long as the insurer proves the behalf but not the burden.” Id. Accordingly, we conclude that an agent may permit [a principal] to accept the benefit of the bargain her [agent] made on her Mut. Auto. Ins., 662 N.E.2d 148, 151 (Ill. Ct. App. 1996). Such a result “would 7

shall not do.” Dent See principal manifesting some continuous prescription of what the agent shall or the trial court was well within its discretion to reject the husband’s testimony. not mean actual or physical control at every moment; rather, it turns upon the exert some control over the husband’s actions. “Control by the principal does The trier of fact is in the best position to judge the credibility of witnesses, and its burden of proving that there was an understanding that the plaintiff would Finally, the record supports the trial court’s finding that the insurer met

within the scope of his agency in rejecting UM coverage. decisions regarding the insurance application and that her husband acted omitted)). Rather, it found that the plaintiff authorized her husband to make not compelled to believe even uncontroverted evidence” (quotation and brackets best position to measure the persuasiveness and credibility of evidence and is he signed it. Guardianship of Luong was provided with an opportunity to review the application before, 15 p. 7 7 N.H. 429, 439 (2008) (“the trier of fact is in the umbrella policy, the trial court chose not to rely upon this testimony. See explain [UM] coverage, and there is no dispute that [the husband] In re authorized her husband to obtain the same UM coverage they had in their prior prior to arriving at the agency. While the plaintiff contends that she only plaintiff and her husband discussed the coverage they wanted to purchase

behalf. finding that the husband consented to obtain insurance on the plaintiff’s because [the representative] testified that it was her practice to witness or party” (quotation omitted)). Accordingly, we uphold the trial court’s the trier of fact “may accept or reject in whole or in part any testimony of any p. 7 744 (2001); see also Drucker’s Case, 133 N.H. 326, 331 (1990) (explaining that Certain Underwriters at Lloyd’s London v. Home Ins. Co., 146 N.H. 740,

merely intended to reject [UM] coverage on recreational vehicles The court is not persuaded by [the husband’s] testimony that he

court found that: that he only wanted to reject UM coverage for recreational vehicles, the trial coverage. While the plaintiff contends that her husband told the representative completed the insurance application, including the section rejecting UM expectation that he would purchase insurance on his wife’s behalf. He then consented to act as the wife’s agent. He entered the insurance agency with the The record also supports the trial court’s finding that the husband

on her behalf). inference could be drawn that he had implied authority to reject UM coverage had previously purchased insurance on the wife’s behalf, a reasonable parties. See Noble, 854 N.E.2d at 932 (determining that where the husband purchase and the husband had then obtained the policy on behalf of both p. 8 Affirmed

initial motion for summary judgment. we need not determine whether the trial court erred in denying the insurer’s conclusion that the husband acted as his wife’s agent in rejecting UM coverage,

Because we conclude that the record supports the trial court’s

DALIANIS, C.J.