Boyce v. Concord General Mutual Insurance

435 A.2d 510, 121 N.H. 774, 1981 N.H. LEXIS 409
CourtSupreme Court of New Hampshire
DecidedSeptember 16, 1981
Docket80-303
StatusPublished
Cited by8 cases

This text of 435 A.2d 510 (Boyce v. Concord General Mutual Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boyce v. Concord General Mutual Insurance, 435 A.2d 510, 121 N.H. 774, 1981 N.H. LEXIS 409 (N.H. 1981).

Opinion

Douglas, J.

This is an interlocutory transfer without ruling on a petition for declaratory judgment to determine insurance coverage. The plaintiff, Arline R. Boyce, is the administratrix of the estate of her son, Robin L. Boyce. The defendants are two insurance companies, Merchants Insurance Group (Merchants) and Concord General Mutual Insurance Company (Concord General), and Darrel Macomber and Elwin E. Macomber, who are the defendants in the underlying negligence actions brought by the plaintiff.

For the purpose of this appeal, the parties have stipulated to the following facts. On July 7, 1976, the defendant Darrel Macomber was operating a pickup truck towing a trailer on Route 25 in Rumney, New Hampshire. The plaintiffs son, who was riding on the trailer, fell from the vehicle and was injured. He died the following day as a result of his injuries. At the time of the accident, Darrel Macomber was a member of the household of his father, Elwin E. Macomber, who was the owner of the truck and trailer. The plaintiff brought negligence actions against both Darrel Macomber and Elwin Macomber.

At the time of the accident, the Macombers had two insurance policies with Merchants: a motor vehicle policy covering the truck, and a homeowner’s policy. At that same time, Arthur S. Boyce, Robin’s father, had a motor vehicle insurance policy with Concord General. In her declaratory judgment action, the plaintiff seeks to determine the extent of insurance coverage under all three policies.

We address first the question of the amount of coverage provided *777 for Darrel Macomber and Elwin Macomber by the latter’s motor vehicle insurance policy with Merchants. The policy in question provides coverage in the amount of $25,000 per person and $50,000 per occurrence for “all sums which the insured becomes legally obligated to pay as damages because of . . . bodily injury . . . [arising out of the ownership, maintenance or use of the owned automobile. . . .” Merchants concedes liability to the extent of $25,000 but argues that its liability is limited to that amount. The plaintiff argues that the State financial responsibility law, RSA ch. 268, requires Merchants to provide coverage to the Macombers in an amount greater than $25,000.

RSA 268:18 provides: “No motor vehicle liability policy other than that defined in RSA 268:1 shall be issued or delivered in this state. . . .” RSA 268:1 VII defines a motor vehicle liability policy as

“a policy of liability insurance which provides: (a) indemnity for or protection to the insured and any person responsible to him for the operation of the insured’s motor vehicle, trailer, or semi-trailer who has obtained possession or control thereof with his express or implied consent, against loss by reason of the liability to pay damages to others for . . . bodily injuries, including death at any time resulting therefrom, ... to the amount of $20,000 on account of injury to or death of any one person....”

The plaintiff makes two arguments based on that language. First, she argues that the statute requires that Merchants provide separate coverage for the truck and the trailer. We reject that argument. The legislature’s use of the disjunctive “or” evinces an intent to require coverage for only one vehicle. See 1A C. Sands, SUTHERLAND Statutory Construction § 21.14 (4th ed. 1972). Coverage is not stacked merely because the trailer and truck are connected. Under condition 4 of the Merchants policy involved in this case, the truck and the trailer are insured as one vehicle. That provision complies with the statute.

The plaintiff also argues that RSA 268:1 VII requires Merchants to provide $20,000 liability coverage for bodily injury for both Darrel and Elwin Macomber. That argument focuses on the language in RSA 268:1 VII that requires a liability policy to provide “protection to the insured and any person responsible to him for the operation of the insured’s motor vehicle. . . .” (Emphasis added.) The plaintiff overlooks the statute’s further provision *778 that the coverage for that liability must be at least “$20,000 on account of injury to or death of any one person. . . .” (Emphasis added.) Although it may be possible to read the statute as the plaintiff does, that reading does not reflect the legislature’s intent in enacting RSA ch. 268. We, therefore, must reject it.

The primary purpose of the financial responsibility law “is not to protect the tort-feasor, but to provide compensation to persons harmed by the negligent operation of motor vehicles.” Peerless Ins. Co. v. Vigue, 115 N.H. 492, 494, 345 A.2d 399, 400 (1975). By focusing on the insureds, the plaintiff misreads the statute. The purpose of the law is to provide minimum protection of $20,000 to any one accident victim. Reading the statute with that purpose in mind, it is clear that the object of the language cited by the plaintiff is to ensure that a victim receives that minimum protection no matter what the circumstances of an accident may be. It does not require an insurer to provide $40,000 coverage in those situations that involve vicarious liability.

The Merchants policy involved in this case complies with the statute. It provides bodily injury coverage in the amount of $25,000 per person and $50,000 per occurrence. Elwin and Darrel Macomber are both insured under the policy as “the named insured and any resident of the same household.” The policy provides that bodily injury liability coverage “applies separately to each insured against whom claim is made or suit is brought, but the inclusion herein of more than one insured shall not operate to increase the limits of the company’s liability.” Thus, Merchants liability is limited by the policy to $25,000 for bodily injury to any one person. That limitation is not raised when a person brings suit based on vicarious liability.

We next consider whether the plaintiff is entitled to uninsured motorist coverage under either her husband’s insurance policy with Concord General or the Macombers’ policy with Merchants.

The two policies at issue contain nearly identical language by which the insurer agrees to pay “all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured . . . [motor vehicle] because of bodily injury . . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured [motor vehicle]” (Emphasis added.) The plaintiffs decedent was an insured under the Concord General policy as a relative of the named insured, his father, and he was an insured under the Merchants policy as a person occupying a vehicle insured under the policy.

*779 Nevertheless, uninsured motorist coverage is not effective with every accident but only with those involving an uninsured motor vehicle, as defined by a particular policy or by New Hampshire law. Both policies at issue contain parallel provisions defining an uninsured motor vehicle or automobile to include vehicles insured under a liability policy where the insurer has denied

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Bluebook (online)
435 A.2d 510, 121 N.H. 774, 1981 N.H. LEXIS 409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyce-v-concord-general-mutual-insurance-nh-1981.