Merchants Mutual Insurance Group v. Orthopedic Professional Ass'n

480 A.2d 840, 124 N.H. 648, 1984 N.H. LEXIS 297
CourtSupreme Court of New Hampshire
DecidedApril 6, 1984
DocketNo. 83-232
StatusPublished
Cited by19 cases

This text of 480 A.2d 840 (Merchants Mutual Insurance Group v. Orthopedic Professional Ass'n) 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
Merchants Mutual Insurance Group v. Orthopedic Professional Ass'n, 480 A.2d 840, 124 N.H. 648, 1984 N.H. LEXIS 297 (N.H. 1984).

Opinion

Douglas, J.

In this appeal, the plaintiff, Merchants Mutual Insurance Group (Merchants), petitioned for declaratory judgment to determine its coverage obligation to the defendant Walter N. Garger under the uninsured motorist endorsements of three separate insurance policies with respect to injuries resulting from a nonphysical contact accident involving an unidentified vehicle. The Master (Mayland H. Morse, Jr,, Esq.) found that Garger is entitled only to the minimum of $20,000 coverage under the uninsured motorist provisions of each of two of the policies, but that, since [652]*652Merchants is entitled to offset against its uninsured motorist liability the amounts paid to Garger under a workers’ compensation contract issued by Merchants to the defendant Orthopedic Professional Association, there are, in fact, no benefits available to the defendants under either of the policies. The Trial Court (Cann, J.) approved the master’s recommendation, and the defendants appealed.

According to the record, on November 10, 1979, the defendant Walter N. Garger was injured in a non-contact accident involving an unidentified vehicle. Garger alleges that while driving eastbound on Route 11-A in Alton, New Hampshire, he was forced off the road by another vehicle, which then fled the scene. At the time of the 'accident, Garger was en route to the Huggins Hospital in Wolfeboro where he was a staff surgeon. It is undisputed that at the time of the accident, he was acting within the scope of his employment for the defendant Orthopedic Professional Association.

As a result of the accident, Garger collected $163,306 in workers’ compensation benefits under a policy issued by Merchants Mutual to Orthopedic Professional Association. The workers’ compensation policy coverage is not in issue in this appeal except to the extent that the offset provisions included in each of the three disputed policies reduce Garger’s uninsured motorist benefits by the amount of workers’ compensation he received.

Following the accident, Garger submitted a claim to Merchants Mutual for uninsured motorist benefits under three separate policies. The first policy is an automobile liability policy, issued to Orthopedic Professional Association by Merchants Mutual. The policy provides $20,000 per person in uninsured motorist coverage. The second policy is an automobile liability policy issued by Merchants Mutual to Garger’s wife. It provides uninsured motorist coverage in the amount of $100,000 per person. The third policy, issued to Orthopedic Professional Association by Merchants Mutual, is a “Special Multi-peril” policy with an uninsured motorist endorsement. That policy’s uninsured motorist benefits are in dispute, as they were not typed onto the declarations page. The parties agree that Garger is an insured under the first two policies. Merchants Mutual denies that Garger is an insured under the special multiperil policy’s uninsured motorist endorsement.

The principal issues raised on appeal concern the validity of two provisions included in each of the three disputed policies. First, each of the three uninsured motorist endorsements limits hit-and-run coverage to accidents involving physical contact; second, each policy also includes a standard “limits of liability” provision which reduces the amount payable under each policy by the amount paid to the insured under the workers’ compensation laws.

[653]*653The first issue is whether the master erred in finding that Soule v. Stuyvesant Ins. Co., 116 N.H. 595, 364 A.2d 883 (1976), only voided a physical contact requirement up to the minimum statutory limits of uninsured motorist coverage in effect at the time of the accident. The master found that coverage in excess of the statutory minimum is not affected by Soule but is dependent upon the terms and conditions of the relevant policy. He determined that the uninsured motorist endorsements of Merchants Mutual’s policies require physical contact and that “[s]ince there was no hit, there was no ‘hit and run’ vehicle to which the excess limits of the uninsured motorist endorsement of the . . . policies] might apply.” The master concluded that “therefore, there becomes available here only the minimum of $20,000 coverage under each of the . . . policies.” We find that the master erred as a matter of law and, therefore, reverse. See 590 Realty Co., Ltd. v. City of Keene, 122 N.H. 284, 285, 444 A.2d 535, 535 (1982).

In Soule, we held that the “policy requirement of physical contact is an impermissible restriction of coverage. . . .” Soule v. Stuyvesant Ins. Co., 116 N.H. at 597, 364 A.2d at 884. We reasoned that the "New Hampshire Legislature chose not to insert a physical contact requirement into RSA 268:15-a ... as has been done in some jurisdictions” (emphasis added) but, instead, extended “coverage to all accidents caused by uninsured motorists or hit-and-run motorists without any requirement of physical contact.” Id. at 596-97, 364 A.2d 884. Thus, we concluded that “the exclusion was an ‘unreasonable restriction’ on the statutory scope of coverage.” Beliveau v. Norfolk & Dedham Mut. Fire Ins. Co., 120 N.H. 73, 76, 411 A.2d 1101, 1103 (1980) (emphasis added) (quoting Soule v. Stuyvesant, 116 N.H. 595, 364 A.2d 883 (1976)).

The statutory scope of coverage had previously been enlarged in 1969 when the legislature amended the uninsured motorist statute to permit an insured to purchase coverage in excess of the statutory minimum. Laws 1969, 418:1. Since the statute permits the insured to purchase uninsured motorist coverage up to the same limits as liability coverage, RSA 268:15-a (now codified at RSA 264:15), any attempt to reduce those higher purchased limits by applying a physical contact requirement is ineffective because the statute does not require physical contact. See Soule v. Stuyvesant Ins. Co., 116 N.H. 595, 597, 364 A.2d 883, 884 (1976). “Policy provisions designed to reduce the coverage to less than that prescribed by the express or implied provisions of the statute are void.” Id. at 596, 364 A.2d at 884.

Accordingly, we hold that the physical contact requirement [654]*654contained in the uninsured motorist endorsements of the three policies is void as an impermissible restriction on coverage. The defendant is entitled to the full coverage, up to the policy limits.

The second issue concerns the validity of the “limits of liability” clause contained in each policy. It provides:

“Any amount payable under the terms of this insurance because of bodily injury sustained in an accident by a person who is an insured under this coverage shall be reduced by....
(2) The amount paid and the present value of all amounts payable on account of such bodily injury under any workmen’s compensation law....”

The effect of this provision is to reduce the uninsured motorist coverage provided in each of the policies, by the amount of any workers’ compensation received by the insured. Whether uninsured motorist coverage may be “set off” by workers’ compensation benefits was considered in Hackman v. American Mutual Liab. Ins. Co., 110 N.H. 87, 261 A.2d 433 (1970). In Hackman, we held that the uninsured motorist carrier could reduce its coverage by the amount of any workers’ compensation received by the insured. This case questions the continued validity of that holding.

The material facts of Hackman

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Bluebook (online)
480 A.2d 840, 124 N.H. 648, 1984 N.H. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merchants-mutual-insurance-group-v-orthopedic-professional-assn-nh-1984.