2011-406, Rebecca Rivera v. Liberty Mutual Fire Insurance Company

In this declaratory judgment action, the respondent, Liberty

brief and orally), for the respondent. Morrison Mahoney LLP on the

brief and orally), for the petitioner.

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 vehicle exclusion; however, we note that we have previously referred to a

p. 2 member’.” For purposes of this opinion, we will refer to this as the owned

equipment . . . [o]wned by or furnished for the regular use of you or any ‘family provides that “uninsured motor vehicle” does not include “any vehicle or bonding or insuring company denies coverage.” Nonetheless, an exclusion

bodily injury liability bond or policy applies at the time of the accident but the

endorsement, as “a land motor vehicle or trailer of any type . . . [t]o which a “Uninsured motor vehicle” is defined, in relevant part, in a separate

member’ [and] . . . [a]ny other person ‘occupying’ ‘your covered auto’.”

For purposes of this coverage, “‘[i]nsured’ . . . means . . . [y]ou or any ‘family

motor vehicle” or “underinsured motor vehicle”.

out of the ownership, maintenance or use of the “uninsured

The owner’s or operator’s liability for these damages must arise

. . . .

and caused by an accident; . . . .

vehicle” because of “bodily injury” sustained by an “insured” 1. An “uninsured motor vehicle” or “underinsured motor

legally entitled to recover from the owner or operator of: A. We will pay compensatory damages which an “insured” is

by an endorsement, which states, in relevant part:

The policy further provides for uninsured motorist coverage, as amended

steering wheel, he was an “insured” under the terms of the policy. covered auto’.” It is undisputed that, at the time Chateauneuf grabbed the this portion of the policy means, in relevant part, “[a]ny person using ‘your

‘insured’ [wa]s entitled to do so” (entitlement exclusion). “Insured” as used in

damage’” or who “[u]s[ed] a vehicle without a reasonable belief that that “any ‘insured’ . . . [w]ho intentionally causes ‘bodily injury’ or ‘property because of an auto accident.” However, the policy excludes from this coverage

injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible

2

liability coverage whereby Liberty Mutual agrees to “pay damages for ‘bodily covered driver and the 2005 Toyota as a covered vehicle. The policy contains At the time of the accident, the policy declarations listed Rivera as a

subsequently convicted of assault by means of a deadly weapon. causing the vehicle to leave the roadway and strike a tree. Chateauneuf was front seat passenger, Timothy Chateauneuf, grabbed the steering wheel,

10, 2008, Rivera was driving a 2005 Toyota Matrix (2005 Toyota) when her The trial court found or the record supports the following facts. On May p. 3 Chateauneuf the light most favorable to the non-moving party. Progressive N. Ins. Co. v. precluded recovery under the liability portion of the policy because affidavits and other evidence, and all inferences properly drawn from them, in In reviewing a trial court’s summary judgment ruling, we consider the

and denied Liberty Mutual’s. The court ruled that the entitlement exclusion

cross-motions for summary judgment. The trial court granted Rivera’s motion portion of the policy, or in the alternative, the liability portion. The parties filed which party brings the petition. Carter v. Concord Gen. Mut. Ins. Co. uninsured motorist coverage. These appeals followed. declaration that she was entitled to recover under the uninsured motorist insurance policy, the burden of proof is always on the insurer, regardless of proving that the exclusion applies. Id definition of ‘uninsured motor vehicle’” and, thus, Rivera was entitled to provision. Progressive N. Ins. Co. v. Concord Gen. Mut. Ins. Co. Nevertheless, the court concluded that “the 2005 Toyota fits within the [policy] their liability through use of a policy exclusion provided it violates no statutory

3 policy language is a question of law for this court to decide. Carter

156 N.H. 389, 390 (2007). Insurers are free to contractually limit the extent of casual reading of the policy as a whole. Philbrick v. Liberty Mut. Fire Ins. Co., reasonable person in the position of the insured based upon a more than at 517. We construe the language of an insurance policy as would a

N.H. 515, 517 (2007); RSA 491:22-a (2010). The interpretation of insurance

Toyota was excluded from the policy definition of “uninsured motor vehicle.” application of the law to the facts de novo. Id. RSA 264:18, VI (2004) did not apply “because p. 3 Chateauneuf was never granted pursuant to the policy. Liberty Mutual denied her claim, stating that the 2005 party is entitled to judgment as a matter of law. Id. We review the trial court’s granted only where no genuine issue of material fact is present, and the moving Argonaut Ins. Co., 161 N.H. 778, 780 (2011). Summary judgment may be

the car as he did. It further determined that statutory liability coverage under insurance carrier, she submitted a claim for coverage from Liberty Mutual

could not have had a reasonable belief that he was entitled to use

After Rivera was denied coverage for her injuries by p. 3 Chateauneuf’s

the uninsured motorist portion of a policy as the “household exclusion clause”). Mut. Fire Ins. Co., 120 N.H. 73, 74 (1980) (referring to a similar exclusion in similar exclusion as a household exclusion. See Beliveau v. Norfolk & Dedham as a whole.” Swain v. Employers Mut. Cas. Co. p. 4 the intent of the legislature as expressed in the words of a statute considered

“In matters of statutory interpretation, this court is the final arbiter of

264:15 (Supp. 2011). be inconsistent with the purpose of our uninsured motorist statute, RSA

interpret “any vehicle” to include the 2005 Toyota, we find this interpretation to

2005 Toyota covered under the policy. Even assuming it is reasonable to uninsured motorist coverage “any vehicle” owned by the insured, including the Liberty Mutual argues that this exclusion unambiguously excludes from

[o]wned by or furnished for the regular use of you or any ‘family member’.”

“uninsured motor vehicle” does not include “any vehicle or equipment . . .

is an “[u]ninsured motor vehicle.” Under the owned vehicle exclusion, however, entitlement exclusion. Thus, based upon the policy definition, the 2005 Toyota coverage but Liberty Mutual effectively denied such coverage pursuant to the

company denies coverage.” Here, the 2005 Toyota was insured for liability

bond or policy applies at the time of the accident but the bonding or insuring land motor vehicle or trailer of any type . . . [t]o which a bodily injury liability The policy defines “[u]ninsured motor vehicle,” in relevant part, as “a

of damages from the tortfeasor.” Swain a source of restitution when that injured party cannot recover the full amount

purpose. Charest v. Union Mut. Ins. Co.

4 “Uninsured motorist statutes are designed to provide an innocent victim

381 (1965) (“uninsured motorists’ insurance is not liability insurance in any to effectuate their underlying policies. Id (quotation and brackets omitted); Hein v. Nationwide Ins. Co. meaning of the relevant statutes, construing them, where reasonably possible,, 106 N.H. 378, with already existing standard liability policies.” Swain, 150 N.H. at 576 contradictory to [that statute’s] plain language.” the overall statutory scheme. Kierstead v. State Farm Fire & Cas. Co. only source of insurance for individuals. Rather, it is designed to act in concert underlying the uninsured motorist statute, [RSA] 264:15, and . . . is under former statute). “Uninsured motorist coverage is not intended to be the owned vehicle exclusion “is unenforceable as it violates the public policy, 113 N.H. 683, 686 (1973) (decided Such statutes have been liberally construed to accomplish their legislative

N.H. 681, 685 (2010). Our analysis must start with consideration of the plain

(quotation omitted). We interpret statutes not in isolation, but in the context of

further argues that “the entitlement exclusion precludes coverage under the ‘underinsured motor vehicle’ pursuant to” the owned vehicle exclusion. It “Toyota fails to meet the policy definition of an ‘uninsured motor vehicle’ or

entitled to uninsured motorist coverage under the policy because the 2005 Liberty Mutual argues that the trial court erred in finding Rivera was include uninsured motorist coverage.” Beliveau

p. 5 RSA 264:15, I. The statute requires “that all automobile liability policies

liability coverage elected.

uninsured motorist coverage shall automatically be equal to the

minimum coverage required by RSA 259:61, the insured’s

purchase liability insurance in an amount greater than the including death resulting therefrom. When an insured elects to hit-and-run vehicles because of bodily injury, sickness, or disease,

damages from owners or drivers of uninsured motor vehicles, and

coverage other than “persons insured.” RSA 264:15, I; see Charest the protection afforded the public under our Financial Responsibility Act.

unknown, can receive compensation for their injuries.” Matarese v. N.H. Mun.

persons insured thereunder who are legally entitled to recover for a liability policy under this chapter, for the protection of RSA 264:15 is silent as to who must be provided uninsured motorist at least in amounts or limits prescribed for bodily injury or death The purpose of requiring uninsured motorist coverage is to close a gap in

tortfeasor lacked liability coverage or because the tortfeasor’s identity was

5 to the extent they protect themselves against liability.” Swain

state, unless coverage is provided therein or supplemental thereto Assoc. Prop. – Liab. Ins. Trust, 147 N.H. 396, 402 (2002).

insurance whose losses would otherwise go uncompensated, either because the vehicles they own.” Id of the . . . statute is to ensure that those who have purchased automobile (quotation omitted). The language of the statute “makes clear that the purpose

policy holders to protect themselves against injury from an uninsured motorist , 113 N.H. at 686. To that end, the intent of the statute is “to allow

with respect to a vehicle registered or principally garaged in this minimum to the vehicle insured”). No policy shall be issued under the provisions of RSA 264:14, include uninsured motorist coverage assures that such coverage runs at a 27, 29 (1996) (noting that “the requirement that all automobile liability policies

motorist coverage in all situations can obtain that coverage by insuring the and “[a]utomobile owners who wish to provide themselves with uninsured former statute). “In that sense, uninsured motorist coverage is vehicle related”

Our uninsured motorist statute provides, in pertinent part:

implied. Charest into the statute a prohibition of an exclusion that is neither expressed nor

, 113 N.H. at 686.

uninsured motorist coverage when it is not required by the statute or to read sense, but resembles limited accident insurance”). We are not at liberty to find the extent of its liability through the use of an exclusion, see

p. 6 to Rivera, there is no insurance available. While Liberty Mutual is free to limit

the 2005 Toyota from the definition of uninsured motor vehicle even though, as Nonetheless, the terms of the owned vehicle exclusion appear to remove

from whom Rivera is “legally entitled to recover damages.” RSA 264:15, I.

automobile insurance whose losses would otherwise go uncompensated . . .

of RSA 264:15, I, Chateauneuf is the driver of an “uninsured motor vehicle[]”

uninsured underlying purpose of the statute “to ensure that those who have purchased and the driver may have been insured”). This construction effectuates the insured motorist . . . notwithstanding . . . that as to all others the automobile

coverage for Chateauneuf under the policy. As such, under the plain language liability coverage as correct, the entitlement exclusion precludes liability coverage. Moreover, taking Liberty Mutual’s assertions regarding preclusion of applicable. Cf

resident in the same household,’” as applied to an owner-occupant of an

plaintiff] was riding was not an insured automobile and the driver was not an

6 caused by Chateauneuf’s conduct; however, Chateauneuf’s insurer denied effectively uninsured and, therefore, the uninsured motorist coverage was

insured highway vehicle) owned by the named insured . . . or any relative

the facts of this case. respect to liability for injury to family members, the automobile in which [the Cf (examining a similar exclusion and finding that “because of the exclusion with

. Kerouac v. Kerouac, 425 N.E.2d 543, 547 (Ill. App. Ct. 1981)

caused the vehicle to leave the roadway and strike a tree. The accident was another uninsured motorist”). As to Rivera, the driver and the vehicle were driving the 2005 Toyota when Chateauneuf grabbed the steering wheel and scheme that compensates one uninsured motorist for injuries caused by and listed Rivera as a person insured thereunder. Rivera was injured while vehicle because “[t]he legislature has not designed an insurance

bodily injury to an insured while occupying a highway vehicle (other than an clause” which provided that uninsured motorist coverage did not apply “‘to motorists.” Miller v. Amica Mut. Ins. Co.

of RSA 264:15, I, to prohibit the exclusion at issue as applied to Rivera under public policy, see Beliveau, 120 N.H. at 74-75. We construe the plain language Co., 151 N.H. at 653, it cannot do so in contravention of statutory provisions or

Here, Rivera’s parents purchased the policy to insure the 2005 Toyota

broadening protection for those injured in accidents involving uninsured

omitted) (emphasis added).

uninsured motorist had possessed comparable liability insurance by persons in the same position that they would have been if the offending overall goal of the statute “is to promote a public policy of placing insured a person specified in the insurance policy. Beliveau, 120 N.H. at 76. Thus, the at 76. However, we have previously explained that “persons insured” refers to p. 7 Relying upon Wegner v. Prudential Property and Casualty Insurance Co.

as applied to Rivera under the facts of this case, contravenes the statute.

claiming that a car insured under the policy was uninsured because coverage

whether the exclusion at issue conflicts with RSA 264:15. Here, the exclusion,

coverage a substitute for liability coverage.” In Wegner would nullify the entitlement exclusion and render the [uninsured motorist]

however, the policy excluded uninsured motorist coverage to any person

the liability coverage does not answer the central question in this case; namely, operated by John Albini who was driving with a suspended license. Wegner because the monetary amount of uninsured motorist coverage equals that of limits, although not necessarily with the same scope.”). Nonetheless, simply 7 264:15, I[,] to require [uninsured motorist] coverage on the facts presented

uninsured motorist coverage extended to any passenger in Albini’s vehicle; that provided automobile liability and uninsured motorist coverage. Id. The 148 N.H. at 108. At the time of the accident, Albini had an insurance policy

deny her claim in this instance would frustrate the purpose of RSA 264:15, I. provide uninsured motorist coverage to that insured with the same monetary, the plaintiff’s decedent insureds protection only against other vehicles without liability coverage”). To

148 N.H. 107 (2002), Liberty Mutual further argues that “[t]o construe RSA requirements for general liability coverage. See insolvency”); Rodman v. State Farm Mutual Automobile Ins. Co., to the legal liability of its insured within the limits specified therein because of

company or with no such coverage at all. Cf

requires that a policy providing general liability coverage to an insured also Trombley v. Liberty Mut. Ins. Co. uninsured motorist statute “is to require liability insurers to provide their, 148 N.H. 748, 752 (2002) (“The statute Auto. Ins. Co., 141 N.H. 518, 519-20 (1996) (decided under former statute);

policy’s uninsured motorist coverage meet the minimum statutory to the liability limits.” We acknowledge that the amounts and limits in the vehicle for which the liability insurer is unable to make payment with respect requirements of RSA 264:15, I[,] by providing [uninsured motorist] limits equal Liberty Mutual argues that “[t]he policy fully complies with the

were involved in an accident with another vehicle insured by an insolvent Matarese, 147 N.H. at 402.

903, 910 (Iowa 1973) (rejecting the insurer’s argument that the intent of Iowa’s

to the terms and conditions of the coverage required therein, an insured motor “[u]ninsured motor vehicle” for the purposes of RSA 264:15 to “mean, subject

under the uninsured motorist coverage of the policy as she would be if she Indeed, under these circumstances, Rivera is as much entitled to recover

for their injuries.” Matarese, 147 N.H. at 402. because the tortfeasor lacked liability coverage . . . can receive compensation p. 8 Because Rivera’s status as a lawful operator of the vehicle at the time she was

afforded UM coverage regardless of any policy exclusions to the contrary.

liability coverage. That being the case, RSA 264:15, I, requires that she be vehicle at the time of the accident. Thus, she clearly falls within the policy’s undisputed facts make it clear that Rivera was an authorized operator of the

[he] was injured.” Wegner 8 under [the] policy’s general liability coverage under the circumstances in which

coverage did not apply to the passenger in Wegner the latter statute. Id persons who are afforded liability coverage under the policy at issue. Liability statute makes it clear that the UM protection it requires extends only to

or revoked.” Id Chateauneuf’s improper “use” of the vehicle that caused that accident, the of North America, 137 N.H. 57, 61 (1993)). Here, by contrast, although it was facts presented.” Id, 148 N.H. at 110 (citing Raudonis v. Insurance Co.

responsible for the operation of the vehicle and therefore “was not insured

did not fall within the express terms of RSA 264:15, I. The language of that insurers free to exclude liability for drivers with suspended licenses. Id disagree. The decedent in Wegner was a passenger in the vehicle. As such, he different from the facts of Wegner, and the same reasoning applies.” We plaintiff. Id Liberty Mutual contends that “[t]he present scenario is not materially of the named insured’s household whose driver’s license has been suspended ‘motor vehicle liability policy’] shall not apply to a named insured or members. trying to stop the theft of his own insured vehicle, because those [we]re not the which provided that “[t]he coverages described [in the statutory definition] [of attempt to analogize the case “to cases in which an insured was injured while

coverage when liability coverage is validly excluded pursuant to RSA 259:61, III was void because it conflicted with RSA 264:15. Id further found that construing RSA 264:15, I, to require uninsured motorist

with the financial responsibility statute, we concluded that the legislature left

. (quotation omitted). Reading RSA 259:61, III in conjunction the insurer was not required to provide uninsured motorist coverage to the

named insured while his license was suspended. Id under another provision in the policy, liability coverage was excluded for the license suspension was valid under RSA 259:61, III (1993) (amended 2004), injury.” Id. at 110. We held that the liability exclusion for a driver under 264:15, I, does not mandate [uninsured motorist] coverage for the same a valid policy exclusion bars liability coverage in a particular situation, RSA

On appeal, the plaintiff argued that the uninsured motorist exclusion

.

action for declaratory judgment and the trial court held as a matter of law that

denied the plaintiff uninsured motorist coverage under this provision because was excluded or denied under another provision in the policy. Id. The insurer from the definition of “uninsured motor vehicle.” Compare

p. 9 concerning the validity of policy provisions excluding the insured automobile

support its position. We acknowledge that a split exists among jurisdictions Finally, Liberty Mutual argues that decisions from other jurisdictions

the facts of this case.

legislature’s intent to exclude Rivera from uninsured motorist coverage under

Affirmed

We do not agree that a reading of these statutes together evinces the

in RSA 259:117]. 264:18.

legal liability of its insured . . . because of insolvency” [as defined she is entitled to recover under either the liability portion of the policy or RSA coverage under the policy, we need not consider her alternative arguments that In light of our conclusion that Rivera is entitled to uninsured motorist

which the insurer is unable to make payment with respect to the bond at the time of the accident or “an insured motor vehicle for vehicle that did not have in effect a motor vehicle liability policy or

9

the term “uninsured motor vehicle” in RSA 264:15, I[,] [a]s . . . a contrary to our uninsured motorist statute. harmoniously” is to interpret way to read “the provisions of RSA 264:3, 264:15, I[,] and RSA 259:117 . . . DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

owned vehicle exclusion as applied to Rivera under the facts of this case is S.W.2d at 650. However, for the reasons stated above, we conclude that the We are also not persuaded by Liberty Mutual’s argument that the only with Nissen, 851 P.2d at 169; Rodman, 208 N.W.2d at 910; and Fontanez, 840 1980) (en banc); and Monroe v. Cogswell Agency, 234 P.3d 79, 83 (Mont. 2010), 347 (Me. 1984); Harrison v. MFA Mut. Ins. Co., 607 S.W.2d 137, 140, 144 (Mo. F.2d 1018, 1019-20 (8th Cir. 1986); Smith v. Allstate Ins. Co., 483 A.2d 344,

not operating the vehicle. virtue of being a named insured in the policy in circumstances where she was

not decide whether she would fall within the terms of the statute merely by injured establishes her entitlement to coverage under RSA 264:15, I, we need