Turner v. St. Paul Property & Liability Insurance

Horton, J.,

dissenting: I would reverse the order of the trial court granting summary judgment to the defendant and hold that the policy in issue provides uninsured motorist coverage for the injuries sustained by the plaintiff’s decedent. Although coverage is clearly excluded by the express terms of the subject policy, I would hold that coverage is mandated by the provisions of RSA 264:15, I (1993). In pertinent part, this statute provides:

No policy shall be issued under the provisions of RSA 264:14, with respect to a vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto at least in amounts or limits prescribed for bodily injury or death for a liability policy under this chapter, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or drivers of uninsured motor vehicles, and hit and run vehicles ....

When a motor vehicle liability policy is issued on a vehicle registered or principally garaged in New Hampshire, it must contain uninsured motorist coverage at th'e liability limits covering all persons insured under the liability policy. This legislative mandate supersedes any restrictive or exclusionary language in the policy where such language is in conflict with the legislative *31purpose. See Peerless Ins. Co. v. Vigue, 115 N.H. 492, 494, 345 A.2d 399, 400 (1975).

It is uncontested that the subject policy is a motor vehicle liability policy issued on a vehicle registered and garaged in New Hampshire. Thus the statutory coverage inquiry is: was the plaintiff’s decedent a “person insured thereunder,” or is the statutory coverage in some way properly limited under the terms of the policy?

It is fair to say that “persons insured thereunder” refers to persons insured for liability under the policy, but the uninsured motorist coverage afforded is not otherwise related to the vehicle insured or to damages incurred in the presence of a liability risk insured against. It “is not coverage for vehicles but for persons, even though it is contained in an insurance policy otherwise insuring an automobile.” Nygaard v. State Farm Mutual Automobile Ins. Co., 221 N.W.2d 151, 157 (Minn. 1974) (superseded by Minn. Stat. § 65B.49, subd. 3a(7) (1994)) (quotation omitted). A “person insured thereunder” need not be driving the insured vehicle or otherwise be related to the insured vehicle to be afforded statutory coverage under our law. All that is needed is that the injured party be “insured” under the policy.

One may be insured for liability coverage under a motor vehicle liability policy in two ways: by status and by use. Status coverage is afforded by being the named insured identified in the declarations or by being the resident spouse or resident relative of a named insured. See 1 A. Widiss, Uninsured and Underinsured Motorist Insurance § 4.1, at 59 (2d ed. 1992); cf. Beliveau v. Norfolk & Dedham Mut. Fire Ins. Co., 120 N.H. 73, 76, 411 A.2d 1101, 1103 (1980) (coverage is for persons specified in the insurance policy). Use coverage is related to the vehicle insured, and the risk insured against must arise from the use or occupancy of the insured vehicle. A status-insured should be afforded uninsured motorist coverage in all instances where the status-insured is “entitled to recover damages from owners or drivers of uninsured motor vehicles.” RSA 264:15, I. A use-insured is entitled to uninsured motorist protection only when his or her injury is related to the use of the insured motor vehicle.

Can a status-insured have his 'or her status as insured for uninsured motorist coverage be limited by defining the liability risk to the use of the insured vehicle, thereby converting the status-insured’s posture to a use-insured’s posture? I think not. The scope of the liability coverage is always related to the use, by the status-insured, of a motor vehicle — in this case the insured vehicle. But this limitation is appropriate only in the context of the liability *32coverage. The uninsured motorist coverage is also vehicle related, but not to a vehicle related to the insured; coverage is related to the foreign uninsured motor vehicle. The relationship is to the injury, not to the insured vehicle. Thus, the status-insured, as a pedestrian or a lawnmower operator on private property, should have uninsured motorist coverage to answer for damages inflicted by a motor vehicle without regard to whether the status-insured is “occupying” or “using” the insured vehicle. I would hold that the express restrictions on coverage in the uninsured motorist section of the subject policy are superseded by statutory coverage. I would hold that, for a status defined insured, uninsured motorist coverage extends to all risks stated in the statute and may not be limited to coverage for injuries related to the insured motor vehicle. “If limited uninsured motorist coverage is to be permissible for antique or collector cars or any other special or limited use vehicles, the legislature must provide it.” St. Paul Mercury Ins. Co. v. Zastrow, 480 N.W.2d 8, 15 (Wis. 1992).

Nor would I find that the policy is properly limited in its uninsured motorist coverage. When the statute speaks of the “amounts or limits prescribed for bodily injury or death,” I would interpret that as being monetary amounts and limits. But see State Farm Auto. Ins. Co. v. Cabuzzi, 123 N.H. 451, 454, 462 A.2d 129, 130 (1983) (holding that amounts and limits clause in RSA 264:15, I, invokes territorial limitation permitted by statute). I would hold that the policy’s risk limitations are not limitations appropriate under the statute.

The majority, in divining the intention of the legislature, states that “[n]othing in the statute requires uninsured motorist coverage' for persons not occupying the vehicle described in the policy when injured” and that the mandated coverage “runs at a minimum to the vehicle insured.” Supra p. 29. I submit that this language does not express the intent of the legislature and reflects a misunderstanding of the purpose of uninsured motorist coverage. RSA 264:15, I, requires coverage for “damages from owners or drivers of uninsured motor vehicles” resulting in “bodily injury, sickness or disease, including death resulting therefrom.” There is no legislative suggestion that the covered damages must arise while occupying the insured vehicle. Nor is such a limitation customarily imposed by liability insurers. See 1 WIDISS, supra § 4.2, at 60-62. It would be unfortunate to see these insurers adopt the majority’s invitation to so limit uninsured motorist coverage.

I respectfully dissent.