Trombley v. Liberty Mutual Insurance

813 A.2d 1202, 148 N.H. 748, 2002 N.H. LEXIS 192
CourtSupreme Court of New Hampshire
DecidedDecember 23, 2002
DocketNo. 2001-452
StatusPublished
Cited by11 cases

This text of 813 A.2d 1202 (Trombley v. Liberty 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
Trombley v. Liberty Mutual Insurance, 813 A.2d 1202, 148 N.H. 748, 2002 N.H. LEXIS 192 (N.H. 2002).

Opinion

Nadeau, J.

The respondent, Liberty Mutual Insurance Company, appeals a Superior Court {Barry, J.) order granting declaratory judgment in favor of the petitioner, Alfred H. Trombley, Jr., and requiring the respondent to provide the petitioner with uninsured motorist coverage for his workplace injuries. We reverse.

The trial court found, or the parties stipulated to, the following facts. The petitioner was injured on October 27, 1998, in the course of his employment with R.S. Audley, Inc., a construction company primarily engaged in building and maintaining roads, bridges and highways. That day, the petitioner and a co-worker were working at the R.S. Audley storage facility on Route 3-A in Bow. The Bow facility consists of an office building, several shop buildings and a fenced back lot where materials are stored. A winding dirt road serves as a driveway connecting the back lot to Route 3-A for deliveries and pickups. The trial court found, and neither party disputes, that the driveway connecting the back lot to Route 3-A is private, and therefore not a public road for the purposes of this case.

The petitioner was injured while he and his co-worker were loading forty-foot I-beams from the back lot onto a flatbed truck parked in the driveway. The petitioner was standing on the bed of the truck to guide the direction of the I-beams as his co-worker loaded them onto the truck from a Caterpillar “Integrated Toolcarrier” (IT). The IT is a multi-functional piece of heavy-duty construction equipment most often used for digging, loading, lifting, logging, snow plowing or sweeping, depending upon its [750]*750attached tool implement. The attached implement being used to load I-beams was a two-prong forklift tool.

The petitioner’s co-worker loaded one I-beam from the IT onto the truck and began to drive away, but the IT tool attachment knocked the I-beam from its resting place on the truck bed. The I-beam, in turn, knocked the petitioner off the truck and onto the ground. The I-beam then fell from the truck, landing on top of the petitioner, crushing his legs.

The petitioner filed a claim for uninsured motorist coverage with the respondent under an automobile liability policy the respondent had issued to R.S. Audley for the flatbed truck. The petitioner claimed that his injuries were caused by his co-worker’s negligent operation of a motor vehicle, the IT, and that his co-worker was effectively an uninsured motorist under New Hampshire law. See Gorman v. Nat’l Grange Mut. Ins. Co., 144 N.H. 157, 159 (1999), overruled by Matarese v. N.H. Mun. Assoc. Prop.-Liab. Ins. Trust, 147 N.H. 396, 405 (2002). Therefore, the petitioner claimed he was entitled to uninsured motorist coverage under his employer’s automobile liability policy. Cf. Hull v. Town of Plymouth, 143 N.H. 381, 384-85 (1999). The respondent denied the petitioner’s request for coverage, finding that it was excluded by a policy provision precluding coverage for uninsured motorists driving vehicles “designed for use mainly off public roads while not on public roads.”

The petitioner subsequently filed this declaratory judgment action in the superior court. After an evidentiary hearing, the trial court found the respondent failed to sustain its burden of proving a lack of coverage because the IT was designed for uses both on and off public roads and the exclusionary language in the insurance policy was repugnant to the New Hampshire Financial Responsibility Act. See RSA 264:14, :15 (1993). The trial court, therefore, granted the petition for declaratory judgment and found coverage in favor of the petitioner. This appeal followed.

The respondent’s appeal challenges each of the above findings and rulings. The respondent also challenges the trial court’s ruling that the petitioner was “legally entitled to recover” uninsured motorist benefits based upon the Gorman case, in light of our recent decision overruling it. See Matarese, 147 N.H. at 405. We conclude that coverage for the petitioner’s injury was excluded under the express terms of the respondent’s insurance policy, which is not repugnant to our Financial Responsibility Act. Therefore, we do not address the other issues raised by this appeal.

The interpretation of insurance policy language is a question of law for this court to decide. See Ross v. Home Ins. Co., 146 N.H. 468, 471 (2001). We construe insurance policy language as would a reasonable [751]*751person in the position of the insured based upon more than a casual reading of the policy as a whole. See id. Absent a statutory provision or public policy to the contrary, an insurance company is free to limit its liability through an exclusion written in clear and unambiguous policy language. See Wegner v. Prudential Prop. & Cas. Ins. Co., 148 N.H. 107, 109 (2002). For exclusionary language to be considered clear and unambiguous, two parties cannot reasonably disagree about its meaning. See M. Mooney Corp. v. U.S. Fidelity & Guaranty Co., 136 N.H. 463, 470 (1992).

The disputed exclusionary language in this case excludes uninsured motorist coverage for vehicles that are “[d]esigned for use mainly off public roads while not on public roads.” The trial court found that the IT was not being used on a public road in this case, but it was designed to be used both on and off public roads. The trial court therefore ruled that the respondent did not meet its burden of proving that coverage was excluded under its policy language.

We will disturb the trial court’s factual findings only if they are contrary to the weight of the evidence or erroneous as a matter of law. See Raudonis v. Ins. Co. of North America, 137 N.H. 57, 59 (1993). The record reflects that the IT is equipped to be used on public roads, it is registered for use on public roads, and it has been used on public roads for at least three limited purposes: (1) to plow or sweep streets if a snow plow or street sweeping tool implement is attached; (2) to move to a construction site within a limited radius; or (3) to be used at a construction site for building or reconstructing a public road. The manifest weight of the evidence, however, shows the IT was “designed for use mainly off public roads.”

The IT is a large, yellow construction vehicle, manufactured by Caterpillar to run on a heavy-duty, off-road diesel engine. The IT operation manual classifies the IT as a machine conforming to environmental standards for non-road engines. The IT weighs 35,500 pounds without tool attachments, and operates at a maximum speed of 22.3 miles per hour. The IT can carry rated loads of up to 9,000 to 10,000 pounds when its tool implements are attached. However, its maximum speed decreases with additional weight and the operator is advised to travel in reverse when carrying bulky loads or when traveling down hills to maximize the IT’s traction and visibility.

The IT operator’s manual lists as typical examples for its use bulldozing, dumping, excavating, bucket loading, bucket scraping, logging, pallet loading and material handling. The operator’s manual provides instructions for shipping, towing or “roading” the machine. Towing the IT is not recommended. “Roading” the IT is recommended only after [752]*752consulting a tire dealer for maximum loads and speeds for tires, and the IT should never be on any roadway for more than twenty-five miles without an extended break.

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Cite This Page — Counsel Stack

Bluebook (online)
813 A.2d 1202, 148 N.H. 748, 2002 N.H. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trombley-v-liberty-mutual-insurance-nh-2002.