John O’Donnell v. Allstate Indemnity Company

This Court should affirm the Hillsborough County Superior Court's decision that there is no underinsured motorist coverage available to the plaintiff under his Allstate umbrella policy because he rejected such coverage. Allstate Indemnity Company is in the business of selling insurance. Allstate offered the plaintiff the opportunity to purchase underinsured motorist coverage when he submitted his application in 2011 and at every annual renewal. Despite multiple opportunities to purchase underinsured motorist coverage, the plaintiff declined the coverage. The plaintiffs request for umbrella based underinsured motorist coverage subsequent to his November 2015 accident seeks to reform his policy without justification.

The selection or rejection of umbrella based underinsured motorist coverage is governed by RSA 264:15. Under that statute, the Legislature has imposed upon insurers selling umbrella policies the obligation to document the insured's rejection and/or purchase of underinsured motorist coverage in writing. The Legislature has imposed upon insureds who purchase an umbrella policy the obligation to execute in writing any change to their selection or rejection of umbrella based underinsured motorist coverage. Once an insured selects or rejects umbrella based underinsured motorist coverage in writing that election is binding upon the named insured until revoked in writing. RSA 264:15. The executed election is binding upon the named insured irrespective of policy amendment or renewal. Id. Subsequent to the plaintiff's 2011 written rejection of umbrella based underinsured motorist coverage, Allstate renewed his policy four times. During the course of four years, O'Donnell made various amendments to his policy, including his request to reduce his liability coverage in the fall of 2015. At no time did O'Donnell rescind his 2011 written rejection of underinsured motorist coverage under his umbrella. Accordingly, the Trial Court properly granted summary judgment in Allstate's favor.

This appeal concerns the Trial Court's interpretation and application of RSA 264:15 to undisputed facts. This Court should affirm the Trial Court's summary judgment ruling in Allstate's favor as "there [was] no genuine issue of material fact, and... the moving party [was] entitled to judgment as a matter of law." Dwire v. Sullivan, 138 N.H. 428, 430 (1994); RSA 491:8-a. The plaintiff rejected uninsured motorist coverage when he purchased an umbrella policy from Allstate and he never rescinded that written rejection. Pursuant to RSA 264:15 the plaintiffs 2011 uninsured motorist rejection form was properly applied to his 2015 policy renewal.

This Court reviews the Trial Court's interpretation and application of RSA 264:15 de novo. This Court is "the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. We first examine the language of the statute, and, where possible, ascribe the plaint and ordinary meanings to the words used. When a statute's language is plain and unambiguous, we need not look beyond it for further indication of legislative intent, and we refuse to consider what the legislature might have said or add language that the legislature did not see fit to incorporate in the statute." Town of Rye Bd. Of Selectmen v. Town of Rye Zoning Bd. Of Adjustment, 155 N.H. 622, 624 (2007).

This Court has long recognized that umbrella policies are different from other liability policies. In CNA Insurance Co. v. Hartford Ins. Co., 129 N.II. 243 (1987), the Court distinguished umbrella-type policies from comprehensive general liability policies noting, "[a]n umbrella excess third-party liability is a unique form of coverage unlike any other form of excess coverage...." Several years later, in United Services Auto Ass'n v. Wilkinson, 132 N.H. 439 (1989) this Court concluded that umbrella policies were exempt from the motor vehicle liability requirements in RSA 259:61 and 264:15 because they provide "modest cost broad coverage for catastrophic losses, and excess coverage over and above any type of primary coverage." In Wilkinson, this Court distinguished umbrella policies from motor vehicle liability policies in that they do not insure motor vehicles; rather they insure rare catastrophic liability in excess of underlying motor vehicle and/or homeowner policies.

Subsequent to the Court's decision in Wilkinson, the Legislature amended RSA 264:15 to require that umbrella carriers offer uninsured motorist coverage in amounts equal to their excess liability coverage for catastrophic losses, however, the Legislature preserved the insured's right to reject umbrella based underinsured motorist coverage. (RSA 264:15 (I)(1991)).

In 2007, the Legislature amended RSA 264:15(I) to include a requirement that any insured's decision to reject umbrella based underinsured motorist coverage be done "in writing" and it added a fourth sentence to the statute. (SB 38). That fourth statement provided ''Rejection of such coverage by a named insured shall constitute a rejection of coverage by all insureds, shall apply to all vehicles then or thereafter eligible to be covered under the policy, and shall remain effective upon policy amendment or renewal, unless the named insured requests such coverage in writing. (RSA 264:15(1)(2007).

The legislative records confirm that Senator D'Allesandro was instrumental in drafting the bill that required umbrella uninsured motorist elections be confirmed in writing. (App. 339, 344-345 Senate Bill 38, 2007 Session). Senator D'Allesandro represented a constituent who orally had elected to purchase umbrella underinsured motorist coverage but without a written acknowledgement was unable to prove their purchase. George Roussos, on behalf of the American Insurance Association, spoke in favor of SB 38's request to put umbrella elections in "writing" subject to three conditions: 1) the written rejection by the named insured would apply to all insureds; 2) the election would be valid for renewals or changes to the policy; and 3) the election would apply until withdrawn in writing. (App. 340-341, January 30, 2007 Senate Committee on Commerce Testimony).

The New I lampshire Insurance Department testified in favor of the insurance industry's amendment to SB 38. (App. 348, April 25, 2007 Public Hearing on SB 38). The Legislature approved Attorney Roussos' amendment to SB 38 and the Governor signed the bill into law in 2007. Pursuant to the 2007 amendment, "rejection of such coverage [umbrella uninsured motorist coverage] by a named insured shall constitute a rejection of coverage by all insureds, shall apply to all vehicles then or thereafter eligible to be covered under the policy, and shall remain effective upon policy amendment or renewal, unless the named insured requests such coverage in writing." (emphasis added). RSA 264:15(I).

In September of 2011, Mr. O'Donnell confirmed in writing his decision to reject underinsured motorist coverage in connection with his purchase of an Allstate umbrella policy. (App. 209). That rejection by O'Donnell as the named insured "shall constitute a rejection of coverage by all insureds" unless he, "the named insured requests such coverage in writing" which O'Donnell did not do. Because O'Donnell did not submit a written request to purchase excess underinsured motorist coverage after rejecting it in 2011-- his 2011 rejection remained in full force and effect at the time of his November 2015 accident. RSA 264:15(I). Bouffard v. State Farm Fire & Cas. Co., 162 N.H. 305 (2011)(decided under an earlier version of RSA 264:15). The requirement of a written request to override an initial rejection of excess underinsured motorist coverage applies to all insureds, which in this case includes O'Donnell. Accordingly, this Court does not need to address O'Donnell's alternative arguments that challenge the definition of the statutory terms "policy renewal" or "policy amendment" within RSA 264:15(I). II. RSA 264:15(I) states that an insured's rejection of uninsured motorist coverage in an umbrella policy "shall remain effective upon policy amendment or renewal" and thus, Mr. O'Donnell's 2011 written rejection governed his September 2, 2015 -2016 policy which Allstate renewed with amended limits.

As noted in the preceding section, Allstate properly relied upon O'Donnell's 2011 Umbrella Uninsured Motorist rejection form when it renewed his policy in 2015 because he never revoked that written rejection. Accordingly, this Court need not reach O'Donnell's assertion that Allstate was required to obtain a second Umbrella Uninsured Motorist Selection/Rejection form in September of 2015 when O'Donnell reduced his Umbrella's liability policy limits. If this Court does reach O'Donnell's statutory construction argument, it should affirm the Trial Court's conclusion that Allstate's September 2015 Policy Declarations reflect O'Donnell's request that Allstate "amend" his policy by reducing his liability limits in conjunction with their annual renewal of his policy.

Mr. O'Donnell characterizes his September 2015 policy as a "new contract" even though it was issued by the same agent under the same policy number as all prior umbrella policies, insuring the same insured at the same address, using the same effective policy period dates, covering the same one vehicle, one operator, based upon the same underlying Allstate Home and/or Auto policy(ies). (App. 333). The Trial Court rejected O'Donnell's argument and concluded the September 2015 policy "was a renewal of his previous umbrella policies, with amended coverage terms." (Opinion, Opening brief, p. 54).

In his declaratory judgment action, O'Donnell asserts that his decision to reduce his liability limits at renewal was a material change to his umbrella policy obligating Allstate to request a second Umbrella Uninsured Motorist Selection form. (Complaint ¶7, App. 355-356). This argument ignores the statutory mandate of RSA 264:15(I) and the terms of the Allstate Selection/Rejection form which both impose the written notification obligation upon O'Donnell in the event he decides to purchase underinsured motorist coverage under his Allstate umbrella.

Although O'Donnell acknowledges that, his 2011 Umbrella Uninsured Motorist Rejection form applies to all subsequent policy, renewals and amendments he argues that, the written rescission requirement in RSA 264:15 does not apply to policy amendments that become effective at policy renewal. (Brief, pp. 33-36). As noted by the Trial Court, Mr. O'Donnell provided the Court with no case law support for his claim that "prohibits an amendment form occurring simultaneous with a policy being renewed." (Order Opening Brief, p. 54, footnote 5).

Mr. O'Donnell was not able to provide the Court with case law support for his assertion that a policy cannot be amended at renewal as the New Hampshire Legislature has expressly recognized that insurers may issue policy amendments at renewal if they notify the insured of the policy amendment(s). RSA 412:6-a. In RSA 412, which governs forms and rates for property and casualty insurance, the Legislature recognized that a carrier could reduce or eliminate various coverages at renewal by amendment provided they "attach to the policy at renewal a printed notice in each such policy explaining clearly what coverages, conditions or definitions have been eliminated or reduced." RSA 412:6-a. This statutory notice provision applies to all policies renewed or endorsed with the same company or group of companies. Id In other words, by statute, Allstate was allowed to amend O'Donnell's umbrella policy at renewal provided Allstate notified O'Donnell of those changes. If Allstate can amend O'Donnell's policy terms at renewal, surely Mr. O'Donnell is also entitled to amend his limits; the autos covered or family members being insured at renewal without requesting a new policy with a new application and new underwriting review.

The case law cited by O'Donnell in support of his assertion that his September 2, 2014-2015 policy had expired and his September 2, 2015-2016 policy was a new contract involve contracts that were not in full force and effect at the time of loss. For example in Twitchell v. Town of Pittsburg, 483 N.Y.S.2d 524 (Supreme Ct., App. Div. 4th Dept. 1984) the plaintiff sought indemnification under a contract that had been expired for 5 years based upon the parties ongoing course of conduct. (Brief, p. 34). In International Technologies v. Verint Systems, 157 F.Supp.3d 352 (S.D. N.Y. 2016) the plaintiff sought to enforce terms under an implied contract theory under a contract that had been expired four years. (Brief, p. 34-36). Finally in Appeal of Alton School Dist., 140 N.H. 303 (1995) this Court acknowledged a Town has no obligation to increase teacher pay for the school year after a collective bargaining agreement has ended. Contrary to these cases, the plaintiff's Allstate umbrella policy remained in full force and effect, year after year, without a gap in coverage up to the time of the plaintiffs November 2015 accident. The plaintiff's assertion that each renewal policy reflected a new policy that could not be amended is not supported by the case law he cites and it is expressly rebutted by state statute. See RSA 412:6-a. Pursuant to the statutory mandate in RSA 264:15, an insured's Umbrella Uninsured Motorist Rejection form "shall" remain effective "upon policy amendment." The plaintiff concedes the term amendment "means an alteration of or addition to." (App. 48, ¶12). The plaintiff also concedes that had he reduced his umbrella liability limits, "mid-term or late in the term of an earlier contractual agreement, then such a change could be construed as an 'amendment' " and his policy would be governed by his 2011 uninsured motorist rejection. (App. 15-16, ¶7). The plaintiff asserts that his "alteration" requesting lower umbrella liability limit was not an "amendment" because it took effect on the first day of his September 2, 2015 renewal as opposed to during his policy period.

The fortuitous timing of O'Donnell's request to amend his umbrella policy should not control whether the policy change qualifies as an "amendment" controlled by his earlier Umbrella Policy Uninsured Motorist Selection/Rejection certification. O'Donnell has not provided this Court with any public policy argument that support excluding the binding impact of a written Umbrella Rejection form to policy amendments made on the day of policy renewal but include them upon any changes the insured made during the remaining 364 days of the year. Under O'Donnell's reasoning, if he had requested lower liability limits 24 hours later on September 3, 2015, "mid-term or late in the term of an earlier contractual agreement, then such a change could be construed as an 'amendment' and his policy would be governed by his 2011 uninsured motorist rejection. (App. 15-16, ¶7). Because, however, O'Donnell requested the very same policy change 24 hours earlier, at policy renewal, suddenly the same policy change no longer constitutes an "amendment" and suddenly Allstate is required to request a second uninsured motorist rejection form. (App. 79-80). The plaintiff's characterization of the term "amendment" within RSA 264:15(I) would lead to illogical results contrary to this Court's recognition that it is a "'fundamental principle' of statutory construction `that whenever possible, a statute will not be construed so as to lead to absurd consequences.'" In re Appeal of Marti, 169 N.H. 185, 190 (2016). Consistent with O'Donnell's admission that umbrella policy amendments "made late in the term of an earlier contractual agreement" would be governed by any earlier Umbrella Uninsured Motorist Selection/Rejection form, his liability reduction is an "amendment" subject to his 2011 Umbrella Uninsured Motorist Selection/Rejection form. (App. 15-16, ¶7). It is undisputed that O'Donnell reduced his umbrella liability limits from $2, 000, 000 to $1, 000, 000. in response to Allstate's July 14, 2015 renewal offer. (App. 312). Following O'Donnell's request that Allstate amend his liability limits "late in the term of an earlier contractual agreement, " Allstate mailed confirmation of O'Donnell's "amendment", his reduced liability limits, on August 5, 2015 a full month before O'Donnell's prior policy expired. (App. 327, 333). The plaintiff's decision to amend his excess liability limits between July 14, 2015 when Allstate issued its renewal offer (App. 312) and August 5, 2015 (App. 325) is the very type of policy change O'Donnell recognized as an "amendment" within RSA 264:15 as it was requested "mid-term or late in the term of an earlier contractual agreement, " O'Donnell's September 2014-2015 policy period. (App. 15-16, ¶7). This policy change is also the type of policy "amendment" recognized by the Legislature in RSA 264:15 that is governed by O'Donnell's initial written Uninsured Motorist Umbrella rejection form.

The plaintiff's attempt to limit the application of the "amendment" term in RSA 264:15 to policy amendments that are effective during the policy period, but not at renewal, would lead to illogical results. Under this interpretation, insurers would be required to obtain a new Umbrella Uninsured Motorist Selection/Rejection form for any policy changes made effective at policy renewal—one day during the year, but the insured could make changes during the policy's remaining 364 days and those would be governed by the insured's original Uninsured Motorists Selection/Rejection. The plaintiff has articulated no reason to differentiate between amendments that are effective at renewal versus other times of the year. Moreover, the binding effect of an insured's written rejection/selection of umbrella based uninsured motorist coverage under RSA 264:15 by its terms applies to all policy amendments not those made on specified days during the policy period. The plaintiff's argument relies upon restrictive language the Legislature did not enact. Under well-settled law, this Court will "neither consider what the legislature might have said nor add words that it did not see fit to include. " Verizon New England v. City of Rochester, 151 N.H. 263, 266 (2004). Mr. O'Donnell's assertion that Allstate was required to request a second Underinsured Motorists Election form in connection with any material policy amendment is inconsistent with the statutory requirements of RSA 264:15(I). The statute by its terms enforces the Named Insured's policy inception Umbrella Uninsured Motorist Selection form to all policy amendments, not just immaterial policy amendments. RSA 264:15(I). The argument is also inconsistent with the policy selection form Mr. O'Donnell executed. The September 2011 umbrella underinsured motorist rejection form executed by O'Donnell specifically informed him that his rejection would apply "now and to all future renewals or continuations of my policy unless I notify you otherwise in writing." (Add. 42). At renewal, absent a written directive from O'Donnell to the contrary, Allstate continued to renew his umbrella policy (no. 9 25 184881) without underinsured motorist coverage consistent with O'Donnell's written directive. Finally, the argument is also inconsistent with well-settled law. As noted in Couch's Treatise on Insurance, "[b]y statute, the insured's initial rejection or reduction of underinsured motorist coverage is usually effective for subsequent policy renewals, replacements or substitutions unless the insured requests underinsured motorist coverage from their insurer in writing." 9 Couch 3d on Insurance, §122:44.

On its merits, O'Donnell's assertion that his liability reduction was not an "amendment" under RSA 264:15(I) fails as the Allstate Policy Declarations preceding his November 2015 accident disclosed in the caption that it was an "AMENDED PERSONAL UMBRELLA POLICY DECLARATIONS." (App. 327, 333)(emphasis added). On July 14, 2014 Allstate sent O'Donnell an umbrella renewal quote for the September 2015-2016 policy period. (App. 312). The proposed premium for an additional year of $2 million in excess liability coverage to cover O'Donnell's home and auto related risks was $277.53. (App. 314). The Allstate July 14, 2015 renewal offer reminded O'Donnell of his right to purchase excess underinsured motorist coverage. (App. 323).

Mr. O'Donnell did not exercise his right to purchase excess underinsured motorist coverage in conjunction with his September 2015 renewal. Instead, he requested that Allstate reduce his excess liability coverage from $2 million to $1 million. (App. 325. 331). In response to O'Donnell's request, Allstate sent him a letter confirming the amended policy limits he requested that would take effect on September 2, 2015. Allstate sent this notice letter to O'Donnell twice, first on August 5, 2015 (App. 325) and then again on August 6, 2015. (App. 331) In each of its August 2015 Policy Declaration Pages amending O'Donnell's umbrella liability limits Allstate reminded O'Donnell that "Uninsured Motorist Insurance Rejected." (App. 327, 333).

If Mr. O'Donnell had wanted to purchase excess underinsured motorist coverage simultaneous with his decision to decrease his excess liability limits he could have contacted his agent to withdraw his 2011 Umbrella Uninsured Motorist Selection/Rejection form in writing. Allstate's July 2015 renewal offer contained language reminding O'Donnell of his right to amend his umbrella policy (App. 322), as well as his right to purchase umbrella underinsured motorist coverage. (App. 323). Despite notice from Allstate in July of 2015 about his ability to purchase excess underinsured motorist coverage Mr. O'Donnell took no such action and thus, his November 2015 policy like all earlier umbrella policies contained no underinsured motorist coverage as O'Donnell chose to reject such coverage. Mr. O'Donnell's claim that his 2015 policy was a "new" policy that required a new Umbrella Rejection/Selection form is factually incorrect as the lower limits were an amendment to policy number 9 25 184881. (App. 336). Mr. O'Donnell was never issued an umbrella policy with a different policy number during the tenure of his various renewals with Allstate. (See App. 210-336).

This Court should affirm the Trial Court order in Allstate's favor as Allstate reminded O'Donnell of his option to purchase umbrella underinsured motorist benefits at each policy renewal. Allstate Underinsured Motorist Notice Bulletin X67689 disclosed the availability of excess umbrella underinsured motorist coverage (App. 219). Allstate sent this bulletin to O'Donnell with his first umbrella policy on September 6, 2011 (Id); on his first renewal in July of 2012 (App. 258); on his second renewal in July of 2013 (App. 282); on his third renewal in July of 2014 (App. 300); and finally on his fourth renewal in July of 2015, several months before his accident (App. 323). Despite his receipt of the Allstate bulletin, informing him of his right to purchase excess underinsured motorist coverage on five separate occasions, at no time did Mr. O'Donnell elect to rescind his umbrella underinsured motorist rejection. The plaintiff also challenges the Court's statutory construction of the term "amendment, " in RSA 264:2(I) claiming it should be interpreted to effectuate liberal availability of excess underinsured motorist coverage and thus override the insureds' written rejection of such coverage. (Brief, pp. 25-29). In support thereof, he cites Riviera v. Liberty Mut. Ins. Co., 163 NH 603 (2012). Riviera, however, involved uninsured motorist coverage under a primary automobile policy where uninsured motorist coverage cannot be rejected. RSA 264:15 This Court's analysis in Riviera, does not apply to an umbrella based underinsured motorist coverage as the coverage can be rejected and the plaintiff exercised his statutory right to reject umbrella based underinsured motorist coverage. RSA 264:15 (I) (1991); (App. 209). The plaintiff's brief seeks more than a liberal interpretation of RSA 264:15(I) it asks this Court to reform the plaintiff's policy to add coverage he specifically rejected, coverage he did not purchase.

Although case law from foreign jurisdictions is of limited value, given each state's differing financial responsibility statutes, the Rhode Island Supreme Court rejected an argument similar to O'Donnell's in Ferreira v. Integon Nash Ins. Co., 809 A.2d 1098 (R.I. 2002). In Ferreira, the named insured rejected primary underinsured motorist benefits on his policy in 1995. The named insured married and added his spouse to the policy in 1996. The insurer notified the insured of his right to purchase underinsured motorist coverage at each annual renewal, as did Allstate in this case. In 1999, the named insured's spouse was involved in a motor vehicle accident and sought underinsured motorist coverage. The insured argued that the carrier's failure to obtain a subsequent underinsured motorist rejection from his spouse mandated that the policy be reformed to include coverage the insured did not purchase. The Rhode Island Court rejected that argument and affirmed the trial court's finding that "a written rejection is required only at the time a policy is originally issued or delivered." 809 A.2d at 1100. Like the insureds in Ferreira, Mr. O'Donnell rejected umbrella based uninsured motorist coverage despite being advised annually on five separate occasions of his right to purchase such coverage. In addition to the five annual notices reminding Mr. O'Donnell of his option to purchase umbrella underinsured motorist coverage, Allstate issued thirteen policy declarations each of which reminded O'Donnell in bold lettering, that he had rejected this coverage. If Mr. O'Donnell at any time had expressed an intent to purchase uninsured motorist coverage for an additional premium, it would have been in the agent and carrier's best interests to sell him such coverage. Unfortunately, Mr. O'Donnell failed to take advantage of that opportunity despite multiple opportunities to do so. Thus, as in Ferreira it was proper for the Trial Court to conclude that Allstate had no obligation to obtain a second Uninsured Motorist Selection/Rejection form from O'Donnell in the fall of 2015.

Mr. O'Donnell asserts the umbrella policy Allstate issued in September of 2015 was not a "renewal" policy because it contained the reduced liability limits he requested. (Complaint ¶ 7-18, App. 355-359). In support of that argument he relies upon the definition of "renewal" in RSA 417-A:1 (II), which states a renewal policy within the context of RSA 417-A is a policy providing the same types and limits of coverage previously provided. The definition of "renewal" in RSA 417-A:1 specifically states it applies to "this chapter, " the Refusal to Issue, Cancellation and Refusal to Renew Automobile Insurance chapter. RSA 417-A:1. The definition imposed by the Legislature for "renewal policies" in the context of when a carrier may cancel or refuse to renew a primary auto policy does not apply to RSA 264:15(I) where the Legislature chose not to define the term. The Legislative decision not to include RSA 417-A:1's definition of the term "renewal policy" in RSA 264:15(I) is, itself, evidence the definition from RSA 417-A:1 does not apply as the Legislature clearly knew how to define the term in the context of one statute but intentionally did not implement that definition in a different statutory scheme. See generally In Petition of Malisos, 166 N.H. 726 (2014)(Definition for separated spouses used in RSA 458 did not apply in RSA 100- A:52).

Mr. O'Donnell's brief references numerous dictionary definitions of the term "renew" including Couch on Insurance. (Brief, pp. 27-33). These definitions include "to begin or take up again, resume, or to make effective for an additional period.

(App. 28). Although O'Donnell asserts his 2015 Umbrella was not a "renewal" it was the resumption of his same policy for an additional period. The only substantive change in O'Donnell's 2015 renewal was the lower liability limits and that amendment was dictated by Mr. O'Donnell.

Contrary to the argument advanced by O'Donnell, Couch's Treatise on Insurance states, "a change in policy limits does not preclude a finding that the new policy is a renewal policy...where the parties have agreed that the renewal is a continuation." 2 Couch on Insurance.3d 29:35. In contrast it describes a "new" non-renewal policy as one which has not been identified or designated as a renewal and a policy with both different terms and a lapse of time between the expiration of the first policy and renewal. 2 Couch on Insurance.3d 29:36 (emphasis added). Allstate expressly described each of O'Donnell's consecutive, annual policy offers as Renewal Policy Offers and it issued either a Renewal or Amended Policy Declaration with each annual policy. Furthermore, there was no lapse in time between the issuance of O'Donnell's 2014 and 2015 policy. Finally, O'Donnell's 2015 policy like his 2014 policy, included the same policy period, it covered the same insured, the same auto and bore the same policy number. Mr. O'Donnell's 2015 Allstate Umbrella policy was a renewal of his 2014 policy with amended policy limits and it is governed by his 2011 written Uninsured Motorist rejection form. (App. 327, 333).

Mr. O'Donnell asserts his 2015 policy was not a "renewal" policy governed by his 2011 Uninsured Motorist Rejection based on case law from foreign jurisdictions which have statutory mandates governing underinsured motorist coverage that are different than RSA 264:15. Each of the cases cited by O'Donnell, however, involves a primary auto policy—not an umbrella policy and thus the cases have limited value in this setting. For example, O'Donnell cites to several cases from the State of Washington where Courts have adopted a materiality standard to determine whether a primary auto policy constitutes a "new" or "renewal" policy, as all "new" primary policies must provide underinsured motorist coverage absent a current rejection notice. See American Commerce Ins. Co. v. Ensley, 220 P.3d 215 (Ct. App. WA. 2009); Johnson v. Farmers Ins. Co., 817 P.2d 841 (WA 1991); Torgerson v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1283 (Ct. App. Wa. 1998). By statute, if these Washington Courts had been reviewing an umbrella policy, as opposed to primary auto policies, the outcome would have been different as the Washington uninsured motorist notice statute "is not applicable to general liability policies, commonly known as umbrella policies, or other policies which apply only as excess to the insurance directly applicable to the vehicle insured." RCW 48.22.030(2).1 Mr. O'Donnell's reliance upon Utah case law faces the same flaw. As explained by the Appellate Court in Kingston v. State Farm Auto Ins. Co., 344 P.3d 167 (Ct. App. Utah 2015), Utah's underinsured motorist notice requirements do not apply to umbrella policies. The Court stated "the Kingstons have not shown that the full panoply of protections found in the UIM statute apply to an umbrella policy...." "Such a showing would require an analysis of the text of Section 31:A-22-305.3 and of the specific provisions of the umbrella policy." The Court further noted, "a review of the law of other states suggests that umbrella policies differ from the automobile insurance policies referenced in UM/UIM statutes."

Mr. O'Donnell also relies upon the Kansas Supreme Court's decision in Mitchell v. Liberty Mut. Ins. Co., 24 P.3d 711 (Kan. 2001). Under Kansas law, an insured may ' In Jochim v. State Farm Mut. Auto Ins. Co., 952 P.2d 630, 634 (Wash. Ct. App. 1998), a Washington Court of Appeals observed that courts which have found the insurer must obtain an separate waiver of underinsured motorist benefits when the insured amends his liability limits, do so "only where there is an attendant or concomitant increase in liability coverage limits." (emphasis in original) The Court noted that "[e]ssentially, ....an increase in liability limits entitles the insured to increased UIM coverage because the respective insurance statutes require insurers to offer UIM insurance to the extent of liability coverage.... For the initial rejection or waiver of UIM coverage to remain effective against a subsequent increase in liability coverage, ... the insured must have expressly waived eligibility for the additional UIM coverage." Id. Here, in addition to a statutory mandate that imposes O'Donnell's original written underinsured motorist selection until a subsequent written election is made, Mr. O'Donnell did not increase his liability limits —he decreased them and thus, a second UIM Selection/Rejection form was not required. Accord Blood v. Old Guard Ins. Co., 934 A.2d 1218 (Pa. 2007). reject primary uninsured motorist coverage in excess of the mandatory state limits. A written rejection by one insured constitutes a waiver by all insureds and the waiver applies to any subsequent policy issued by the same insurer for motor vehicles owned by the named insured including but not limited to supplemental renewal, reinstated, transferred or substitute policies. Id In Mitchell, 24 P.3d 711 (Kan. 2001), the plaintiff challenged whether his employer's policy was a "renewal policy" governed by the employer's original waiver. The policy did not indicate, "whether it is a new policy or a renewal policy" rather, the policy stated it was a cancel re-write. The Court cited to Black's Law Dictionary, which defined "renewal" as "the act of restoring or re-establishing. 2. The recreation of a legal relationship or the replacement of an old contract with a new contract, as opposed to the mere extension of a previous relationship or contract." The Court concluded "allowing a rejection in a previous policy between the same parties to remain in effect absent another written request by the insured where the new coverage is virtually identical and re- establishes the relationship between the parties or where the new policy replaces the old policy with a new contract that is consistent with the intent of the Legislature." If this Court were to apply the Kansas Court's analysis in Mitchell to this case, O'Donnell's 2015 Allstate Umbrella policy would qualify as a "renewal" policy as it restored and re-established O'Donnell's umbrella policy with policy limits he designated. As noted by the Court in Mitchell, enforcing the insured's own written rejection from a prior policy absent another written request by that insured is consistent with legislative intent. O'Donnell's 2015 Umbrella followed a "renewal" quote as opposed to a cancel-re-write.

Finally, it should be noted that the insurance policy interpreted by the Kansas Supreme Court in Mitchell was a primary policy, not an umbrella policy. The Kansas legislature exempts umbrella policies from the rejection notices it imposes upon a primary auto insurer. The Kansas statute describing the notice required for the rejection of uninsured motorist coverage in "new" primary policies states "no insurer shall be required to offer, provide or make available coverage confirming to this section in connection with any excess policy, umbrella policy or any other policy which does not provide primary motor vehicle insurance for liabilities arising out of the ownership, maintenance, operation or use of a specifically insured motor vehicle." KSA 40-284(a). O'Donnell also refers this Court to Maryland case law and yet an Appellate Court interpreting Maryland's underinsured motorist notice statutes confirmed that Maryland's "General Assembly did not intend 'private passenger motor vehicle liability insurance' [requirements] to include umbrella policies." Stickley v. State Farm Fire & Cas. Co., 65 A.3d 141, 150 (Ct. App. Md. 2013). The Stickley Court, like this Court in CNA Insurance Co. v. Hartford Ins. Co., 129 N.H. 243 (1987) and United Services Auto Ass 'n v. Wilkinson, 132 N.H. 439 (1989) exempted umbrella policies from the statutory requirements applicable to a "private passenger motor vehicle policy" after describing the different functions served by an umbrella policy and the significantly reduced policy premiums. 64 A.3d at 152.

Finally, O'Donnell references an appellate decision from the First Circuit Appeals Court in Louisiana, Dempsey v. Automotive Ca. Ins and Allstate Ins. Co., 680 So.2d 675 (La. App. 1, June 28, 1973). (Brief, p. 37-38). The Court's decision in Dempsey has been superseded by statute. LSA-R.S.32.900. After Dempsey the Legislature exempted insurance policies providing excess or additional coverage beyond that mandated by the motor vehicle policy statute. 32.900 (G). Accordingly, the Court's decision in Dempsey construing what constitutes a "new policy" for purposes of a primary underinsured motorist rejection form has no bearing upon an umbrella policy. The Allstate "New Hampshire Personal Umbrella Policy Uninsured Motorists Selection/Rejection Form" approved by the New Hampshire Insurance Department and signed by Mr. O'Donnell specifically warned O'Donnell that his 2011 rejection would apply to all "continuations of my policy unless I notify you otherwise in writing." (App. 209). Merriam-Webster defines the term "continuation" as the act or fact of continuing in or the prolongation of a state or activity...." The last Allstate umbrella policy issued to O'Donnell before his November 2015 accident was sent in early August of 2015—with an effective date of September 2, 2015, his policy renewal date. (App. 325, 331). The September 2, 2015 policy obligated Allstate to provide O'Donnell with continued excess liability limits at the rate requested by him and thus this renewal constituted a "continuation" of his policy governed by the express terms of his 2011 "Umbrella Policy Uninsured Motorist Selection/Rejection." (App. 209). Mr. O'Donnell's failure to notify Allstate in "writing" that he wanted to rescind his Umbrella Uninsured Motorist Rejection under policy 9 25 184881 precludes his request that this Court reform his policy to include coverage he expressly rejected. RSA 264:15; Colony Ins. Co. v. Dover Indoor Climbing Gym, 158 N.H. 628, 630-631 (2009).

This Court should affirm the Trial Court's decision that the Allstate Umbrella policy issued to O'Donnell in effect at the time of his November 2015 accident does not contain excess underinsured motorist coverage because he rejected that coverage in writing in 2011 and never rescinded his rejection.

I hereby certify that a copy of the within was this day served via electronic submission through the Court's electronic filing system upon Attorney Mark D. Morrissette.

I hereby certify that a copy of the foregoing has been mailed this 22nd day of August, 2017, via first class mail, postage prepaid to:

John O'Donnell v. Allstate Indemnity Company 216-2017-CV -00463

NOW COMES Allstate Indemnity Company (hereinafter "Allstate") by its attorneys, Primmer Piper Eggleston & Cramer, PC and submits the following Request for Admissions upon John O'Donnell: 1. I signed the attached September 27, 2011 Allstate uninsured motorist selection rejection form.

2. Subsequent to executing the attached uninsured motorist rejection form I did not rescind that rejection in writing.

I hereby certify that a copy of the foregoing pleading was this day forwarded to Mark Morrissette, Esquire.

Doreen F. F. Connor, #421 2961176.1 (-713