Harrison v . Allstate CV-98-602-JM 11/08/99 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Patrick Harrison Kim Hanscom v. Civil N o . 98-602-JM Allstate Insurance Company

O R D E R In this civil action, plaintiffs Patrick Harrison and Kim Hanscom seek a declaratory judgment pursuant to New Hampshire Revised Statutes Annotated (RSA) 491:22. They allege that defendant Allstate Insurance Company is obligated to provide underinsured motorist benefits to them under the uninsured- underinsured motorist (UIM) provisions of Harrison's automobile insurance policy issued by Allstate.1 Jurisdiction of the action is properly founded upon RSA 491:22-c (Supp. 1998) 2 and diversity

1 Originally filed in Rockingham County Superior Court, this action was removed by defendant to this court pursuant to

(a).

2 RSA 491:22-c provides that [t]he remedy of declaratory judgment to determine the coverage of a liability insurance policy under RSA 491:22, 22-a, and 22-b shall also be available in the United States district court for the district of New Hampshire when that court may properly jurisdiction under

(a)(1), the parties being residents of different states. Presently before the court is Allstate's motion for summary judgment premised upon its contention that the above-mentioned coverage does not extend to the plaintiffs under the terms of the policy. Plaintiffs object to said motion.3

Background

On August 6, 1997, Harrison and Hanscom were riding one of Harrison's motorcycles when they were struck by another vehicle. As a result of the accident, Harrison and Hanscom were both severely injured and hospitalized. Because the operator of the other vehicle was at fault, that operator's insurance carrier paid $100,000, the full limit of liability coverage, to each plaintiff.

At the time of the accident, the motorcycle that Harrison was operating was one of three motorcycles he had insured under the terms of a New Hampshire automobile insurance policy issued

adjudicate the matter under the laws of the United States.

3 Defendant has filed a response which the court will also consider with this motion.

2 by Allstate.4 To maintain liability coverage Harrison paid

separate premiums for each of the insured motorcycles. With

respect to UIM coverage under Harrison's policy, Harrison paid

only one premium for all three motorcycles.

The UIM provision within the policy provides coverage of

$50,000 per person for bodily injury if Harrison, while operating

one of the insured motorcycles, is involved in an accident with

another vehicle that was either uninsured or underinsured.5

Harrison's policy also includes a provision which provides that

the insured is limited to the UIM coverage limits on the

declaration page. This provision also specifically prohibits the

insured from "stacking" the UIM coverage limit by multiplying the

UIM coverage limit on the declaration page by the number of

automobiles insured under the policy.

4 The documents included as part of the policy are as follows: New Hampshire Auto Insurance Policy (form AU128), Motorcycle/Misc Endorsement (form AU1330), Amendment of Policy Provisions (form AU2312), Amendatory Endorsement (form AU1147), and Policy Amendment Endorsement (form AU2014-2). 5 To be considered an underinsured vehicle, the third party's vehicle must provide less liability coverage than the insured's UIM coverage.

3 Discussion

1. Standard of Review

The court may only grant a motion for summary judgment where

the “pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). Accordingly, at this stage of the

proceeding, the court does not weigh the evidence and determine

the truth of the matter but instead determines whether there is a

genuine issue of fact for trial. See Stone & Michaud Ins. Bank

Five for Savings,

(D.N.H. 1992) (quoting

Anderson v . Liberty Lobby, Inc.,

4 2 , 249 (1986)).

In this case, although the parties disagree as to the

interpretation of the insurance policy, particularly the terms

relating to UIM benefits, the central facts of the case are

undisputed. The court's interpretation of an insurance policy is

governed by principles of state contract law. See LaSorsa v .

UNUM Life Ins. Co.,

4 0 , 147 (1st Cir. 1991). In New

Hampshire, the interpretation of insurance policy language is

ultimately a question of law for the court to decide. See

Concord Gen. Mut. Ins. C o . v . Mitchell,

, 2 3 1 ,

(1994); LaSorsa,

. Accordingly,

4 defendant should be granted a summary judgment if it is so

entitled as a matter of law. See e.g., Atlas Pallet, Inc. v .

Gallagher,

3 1 , 134 (1st Cir. 1984) ("where the facts

upon which liability is claimed or denied under an insurance

policy are undisputed and the existence or amount of liability

depends solely upon a construction of the policy, the question

presented is one of law for the court to decide.").

2. Underinsured Motorist Coverage

Although plaintiffs concede that Harrison's policy contains an UIM provision which prohibits stacking of UIM coverage, they assert that it is unclear under the UIM anti-stacking provision whether they are precluded from stacking motorcycles in particular. Thus, the ambiguity of this provision should be construed in their favor so that they may stack the UIM coverage limit of Harrison's three, insured motorcycles. Because Harrison and Hanscom only received $100,000 from the third party's carrier, they assert that Allstate must pay them each the difference between the stacked uninsured amount and the amount paid by the third party's carrier which would be $50,000.6

Defendant asserts that the UIM anti-stacking provision is

6 By stacking the UIM coverage limit of $50,000 per person by the three motorcycles, instead of $50,000 per person, plaintiffs' total UIM coverage limit would be $150,000 per person.

5 not ambiguous and clearly prevents plaintiffs from stacking the

UIM coverage limit of the three motorcycles insured under the

policy. In support of this position, defendant points out that

the policy issued to Harrison for liability, property and UIM

insurance involved only motorcycles. Thus, all of the provisions

relating to automobiles within Harrison's policy must apply to

Harrison's motorcycles. In addition, several provisions within

the policy, including the Miscellaneous Vehicle Endorsement and

the UIM Endorsement, define an auto, not as a four-wheel private

passenger auto, but as a motor vehicle which would include

motorcycles. Finally, read in its complete context, the policy

clearly prohibits the insured from stacking UIM coverage of the

insured motorcycles. As a result, with an UIM coverage limit of

$50,000 per person, there is no "underinsured" amount which would

allow plaintiffs UIM benefits.

Intra-policy stacking of underinsured motorist coverage may

be precluded by an anti-stacking provision within the policy if

the UIM anti-stacking provision is clear and unambiguous. See

Mitchell,

3 1 ,

. According to the

policy provisions, as plaintiffs concede, there is no question

that Harrison's policy limits UIM coverage. The policy

declaration page lists UIM coverage as $50,000 per person and

$100,000 per accident. The policy also contains an Important

6 Notice7 which explains when UIM benefits will be provided to the

insured. Within this notice a clause specifically provides that:

[u]nlike most other policy coverages, only one premium is charged for all autos covered by Uninsured Motorists Bodily Insurance. The Uninsured Motorists Bodily Injury Insurance limits which are stated on your Policy Declarations are the most that you can recover for bodily injury in any one covered accident which is caused by an uninsured motorist.

Finally, the UIM Endorsement within Harrison's policy which

amends the terms of UIM coverage specifically limits UIM

liability with a "Limit of Liability" clause which states: THE UNINSURED MOTORISTS INSURANCE FOR BODILY INJURY LIMIT STATED ON THE DECLARATIONS PAGE IS THE MAXIMUM AMOUNT PAYABLE FOR THIS COVERAGE BY THIS POLICY FOR ANY ONE ACCIDENT REGARDLESS OF THE NUMBER OF AUTOS YOU OWN OR INSURE WITH U S . THIS MEANS THE INSURING OF MORE THAN ONE AUTO FOR OTHER COVERAGES WILL NOT INCREASE OUR LIMIT OF LIABILITY BEYOND THE AMOUNT SHOWN IN THE DECLARATIONS.

Thus, the key issue in this case is whether the term

automobile clearly applies to motorcycles in the UIM anti-

stacking provision within Harrison's policy. To interpret terms

within an insurance policy the court looks to the "plain and ordinary meaning of words in their context and construe[s] the

7 This notice provides that UIM benefits will be paid to the insured and others covered by the insured's policy for bodily injury in an accident caused by a liable operator of an uninsured auto which includes "an underinsured motor vehicle which has liability coverage in effect at the time of the accident, but in an amount less than your Uninsured Motorists Bodily Injury Insurance limits."

7 terms of the policy as would a reasonable person in the position

of the insured based on more than a casual reading of the policy

as a whole." Mitchell,

3 1 ,

(quotations omitted); see also M . Mooney Corp. v . United States

Fidelity & Guaranty Company,

, 4 7 0 ,

(1992). If the plain and ordinary reading reveals an ambiguity

in the policy, that ambiguity will be construed in favor of the

insured. See

However, the mere existence of a dispute

between the parties over the scope of coverage under a policy

does not mean that the contract is ambiguous. See LaSorsa,

. In addition, where the insurance contract

contains special definitions in the policy, those definitions

will control. See Vaillancourt v . Concord General Mutual

Insurance Company,

8 , 4 9 ,

0 8 , 209

(1977)(where insurance policy defined automobile as "a land motor

vehicle, trailer or semi-trailer" snowmobile would be included in

that definition). Thus, the court will consider the definitions

within Harrison's policy, relevant to the term automobile, and

determine "what meaning a reasonable person in the position of

the insured would give to [those] words."

As Allstate points out, because the insured auto was "a

vehicle other than a four wheel private passenger auto or utility

auto," the Miscellaneous Vehicle Endorsement applied to the terms

8 of Harrison's policy. This particular endorsement defined auto

as "a land motor vehicle designed for use on public roads" and

specifically provided that in regards to UIM benefits "the term

motor vehicle replaces the term auto." Thus, within the limited

liability clause of the UIM Endorsement, the term auto would be

replaced with the term motor vehicle. In addition, within the UIM Endorsement8 itself, an "insured auto" is defined as a motor

vehicle that the insured owns including any "auto you purchase as

a replacement for the owned motor vehicle." The UIM endorsement

then defines motor vehicle as "a land motor vehicle or trailer

... "

Plaintiffs rely heavily upon Boucher v . Employers Mutual

Casualty Company, for the proposition that a motorcycle is not an

automobile. In Boucher v . Employers Mutual Casualty Company,

plaintiff while operating his uninsured motorcycle was injured by

a third party in an uninsured vehicle. See Boucher v . Employers

Mutual Casualty Company,

2 4 ,

(1981).

8 The first paragraph of the UIM Endorsement provides that "[w]e will pay those damages that an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury sustained by an insured person. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of an uninsured auto." The court is unpersuaded by plaintiffs' assertion that the use of various bold type print within this paragraph create ambiguity as to the meaning of the term automobile.

9 Because plaintiff had insured another vehicle with the defendant

which provided UIM coverage, plaintiff claimed that he was

entitled to UIM benefits. See

The insurer, on the other

hand, denied plaintiff UIM benefits because an exclusionary

clause within the policy provided that UIM coverage would not

apply "to bodily injury to an insured while occupying an

automobile (other than the insured automobile) owned by the named

insured ..." Boucher,

,

. The

insured's policy did not specifically define "automobile" but did

define a "private passenger automobile" as "a four-wheel private

passenger, station wagon or jeep type automobile." Considering

the policy's use of the word automobile and the common meaning of

the word automobile, the court determined that the UIM

exclusionary clause was "reasonably susceptible to different

interpretations: (1) "automobile" is limited to four-wheel

vehicles, and the plaintiff is insured; or (2) "automobile"

includes motorcycles, and the plaintiff is not insured."

Boucher,

,

. Because of this

ambiguity, the court construed the policy in the insured's favor

so that motorcycles were not included within the term automobile.

See

Unlike the policy in Boucher, the language in Harrison's

policy does not imply that automobiles are limited to four-wheel

10 vehicles. Throughout Harrison's policy, the terms auto and motor

vehicle are interchangeable and defined, not as four-wheel

passenger vehicles, but as "land motor vehicle[s]." In addition,

consistent with the common and statutory meaning of the term

motor vehicle, the policy does not limit the use of the term

motor vehicle to four-wheel vehicles. See e.g., Webster's Third

New International Dictionary (1981)(motor vehicle is defined as

"an automotive vehicle not operated on rails, (especially) one

with rubber tires for use on highways" and automotive is defined

as relating to "vehicles or machines that propel themselves (as

automobiles, trucks, airplanes, motorboats)."); R.S.A. § 259:60

(Supp. 1998)(motor vehicle is defined as "any self-propelled

vehicle not operated exclusively on stationary tracks, including

ski area vehicles."). Considering (1) the definitions within

Harrison's policy which define automobiles as land motor

vehicles, (2) the use of the terms auto and motor vehicle within

the policy, (3) the common meaning of the term motor vehicle, and

(4) the fact that the policy only insured motorcycles, it is

clear that the UIM anti-stacking provision within Harrison's

policy applied to motorcycles. Unlike other cases where anti-

stacking provisions have been ambiguous, see e.g., Cacavas v .

Maine Bonding and Casualty Company,

0 4 , 2 0 7 ,

(1986)(the insured "could reasonably interpret the

11 policy to mean that liability was not limited to the amount

declared for only one vehicle . . . " ) , the anti-stacking terms

within Harrison's policy are not ambiguous. C.f., Mitchell,

,

; United Services Automobile

Association v . Wilkinson,

,

(1990); Gelinas v . Metropolitan Property & Liability Insurance

Co.,

5 4 , 1 7 2 ,

6 2 , 973 (1988). Thus, the

policy clearly indicates that UIM coverage is limited to $50,000

per person for bodily injury and that Harrison and Hanscom cannot

stack coverage by multiplying this amount by the number of

motorcycles insured under the policy.

CONCLUSION

For the foregoing reasons, defendant's motion for summary

judgment (document 13) is granted.

SO ORDERED.

James R. Muirhead United States Magistrate Judge

Date: November 8 , 1999

cc: Peter M . Solomon, Esq. Charles Platto, Esq.

12