presented by: laurence w. getman, esq

Presented by:Laurence W. Getman, Esq.

www.gss-lawyers.com

Introduction

The Uninsured Motorist Statute is designed to provide an innocent victim a source of restitution when the injured party cannot

recover the full amount of damages from the tortfeasor.

Rivera v. Liberty, 163 N.H. 603 (2012)

The U.M. Statute is liberally construed to accomplish its

legislative purpose.

Rivera v. Liberty,163 N.H. 603 (2012)

The overall goal of the statute is to promote a public policy of placing insured persons in the same position that they would have been

if the offending uninsured motorist had possessed comparable liability insurance.

Rivera v. Liberty, 163 N.H. 603 (2012)

An insurer is free to limit the extent of its liability through the use of an exclusion,

however, it cannot do so in contravention of statutory provisions or public policy.

Rivera v. Liberty, 163 N.H. 603 (2012)

1st in Nation.

Uninsured motorist coverage (“U.M.”) required if vehicle is registered or principally garaged in New Hampshire.

RSA 264:15(I)

Statute requires coverage for accidents in USA and Canada only.

State Farm v. Cabuzzi, 123 N.H. 451 (1983)

Statute does not require U.M. coverage beyond U.S. and Canada even when

insured elects to purchase liability coverage beyond the minimum

territorial requirements.

Raudonis v. Insurance Co. of N. Am.,137 N.H. 57 (1993)

Fault Required

Insured cannot prevail against U.M. carrier if the action against the uninsured motorist is barred.

EXAMPLES

Alleged Tortfeasor not negligent = no recovery.

Tortfeasor is immune/workers’ compensation bar.

Co-employee: Ireland v. Worcester Ins. Co (2003)

Fireman’s Rule: Matarese v. N.H.M.A., 147 N.H. 396 (2002)

State Farm v. Pitman148 N.H. 499 (2002)

“Accident” in U.M. context is viewed from perspective of the insured, not torteasor.

(Police Officer intentionally dragged by vehicle driven by tortfeasor)

No fault laws conflict with N.H. public policy.

Example:

If Plaintiff can’t meet threshold in MA:

May have N.H. U.M. Claim.

Green Mountain v. George, 138 N.H. 10 (1993);

Matarese (see clarification)

Hull v. Plymouth,143 N.H. 381 (1999)

Workers’ Compensation bar (281-A:8) that waives all employee causes of accident

against employer’s insurance carriers does not waive claims against employer’s U.M.

carrier.

Persons Insured with Respect to Uninsured or Underinsured Motorist

Coverage.

Turner suggests only named insuredand spouse while occupying

insured vehicle but most policies are broader.Turner v. St. Paul, 141 N.H. 27 (1996)

Named insured and any resident relative/family member.

Any other person while occupyinginsured automobile.

Consortium claims.

N.H. does not require purchase of auto coverage unless

convicted of certain traffic offenses or caused an accident.

RSA 264:2

No obligation to provide U.M. coverage, if individual or entity is

self-insured.

Dionne v. City of Concord, 134 N.H. 225 (1991)

What Constitutes an Uninsured or Underinsured Motor Vehicle

Underinsured tortfeasor has less coverage than insured vehicle.

Amount controlled by limits not by what Plaintiff actually recovers.

Tortfeasor’s carrier denies coverage.

RSA 264:15 (I)

Policy provisions requiring“Physical Contact”:

Not Valid.

Merchants Mutual v. Orthopedic Prof. Ass’n.,124 N.H. 628 (1984)

Concord Group v. Doe[Sexual Assault]

Need a causal connection

between use of vehicle and causal harm.

Cab driver closed door on dog’s tail. Resulting dog bite injury to dog

owner/passenger arose out of “use” of vehicle.

Wilson v. Progressive, 151 N.H. 782 (2005)

Akerley v. The Hartford136 N.H. 433 (1992)

Police officer injured while

removing a suspect from vehicle.

Hartley v. Electric Insurance154 N.H. 687 (2007)

Series of unexpected events found compensable under U.M. policy.

• Policy requires report to police within 24 hours. (Actual prejudice required).

• Policy requires report to carrier within 30 days. (Actual prejudice required).

• Corroborative evidence requirement.

• Cabbie left without providing identification/contact information.

• Taxicab considered uninsured motor vehicle.

• Claimant’s failure to obtain identifying information on tortfeasor/driver was not required by the notification requirement.

Wilson v. Progressive, 151 N.H. 782 (2005)

Uninsured Motorist Coverage Pertains to Bodily Injury Only.

RSA 264:15(I)

HOWEVER:

Property damage coverage required ($25K) if tortfeasor carrier is

insolvent.

RSA 264:15 (II)(Required by statute but some policies are broader)

Underinsured Motorist Coverage

If Stacked Coverages are Greater

Than Tortfeasor’s Coverage = Underinsured Situation.

Total of ALL available policies compared to Tortfeasor’s policy

vs. $100k = underinsured

Subject to stacking limitation language

$100k$100k

However:

Passenger was not entitled to collect underinsured motorist (UIM) benefits under car owner’s policy

after she collected limits of liability coverage, even if she was not fully compensated; reducing clause stated that underinsured motorist (UIM) benefits would be reduced by all sums paid on

behalf of the owner or operator of the underinsured automobile and thus set off any

recovery of UIM benefits by the amount collected under the liability section of the policy.Wyatt v. Maryland Casualty, Co.,144 N.H. 234

Swain v. Employer’s Mutual,150 N.H. 574 (2004)

[Valid non-owned auto U.M. limits language]

Employee rear-ended in his personal vehicle while on business – no U.M. in Employer’s

Policy for non-owned vehicle.

Amount of Coverage

U.M. limits reduced by amount of tortfeasor’s limits.

Deyette v. Liberty, 142 N.H. 560 (1997)

Barbuto v. Peerless, 156 N.H. 565 (2007)

but

Prudential case.

Allstate v. Armstrong,144 N.H. 170 (1999)

Tortfeasor’s policy limits (not payments) used to determine if

there is an

Underinsured Claim.

- Tortfeasor credit (% of total payment made)- Credit applies only once (Ellis)

YOUR PAYMENTTotal UIM Payment

= 50% x 25k (settlement) = * $12,500 - Credit

Ellis v. Royal Ins. Companies,

129 N.H. 326 (1987)

25k

50K

= % x Total Credit

Consortium Claims

Yes but …

Single per person limit

Liability Limits Must Equal U.M. “Limits”

RSA 264:15(I)

However,“Scope” of U.M. coverage does not have to

be same as Liability coverageSwain v. Employer’s Mutual,

150 N.H. 574 (2004)

EXAMPLE

• Liability Coverage: Owned and non-owned auto.

• U.M. Coverage: Owed only.

This is OK as long as “limits” of coverage are equal.

Umbrella/Excess

Includes U.M. coverage unless named insured signs written opt out.

Bouffard v. State Farm (agency)

[Husband signed rejection of coverage for Wife]

RSA 264:15(I)

Umbrella/Excess Policies

Written Rejection of Coverage by Named Insured

• All insureds under policy.• All vehicles including vehicle added to

policy later.• All renewals of the policy.

RSA 264:15(I)

Exclusion of U.M. benefits for passenger when the policy excluded liability coverage for driver with suspended license upheld.

Wegner v. Prudential, 148 N.H. 107 (2002)

COMPARE:

Rivera v. Liberty,

163 N.H. 603 (2012)

• Prohibition against duplicate payments under liability and medical benefit coverage is invalid.

• U.M. limit can not be reduced by amount of Medpay.

• Provisions to contrary are invalid.

Murley v. Hanover, 155 N.H. 540 (2007)

Stacking Can Be Prohibited IfDone In Clear And

Unambiguous Language.

See Stacking Limitation/Coverage Limitation

Calabara v. Metropolitan, 142 N.H. 308 (1997)

Non-owned vehicle language validly limited excess U.M. coverage:

“The limits of this policy exceed the limits of all other available coverage.”

State Farm Mut. Auto Ins. v. Holyoke Mut. Ins., Co. 150 N.H. 527 (2004)

Underinsured motorist benefits in passenger’s New Hampshire policy could

be stacked with those in driver’s Massachusetts policy, because

Massachusetts’ anti-stacking law did not bar stacking of Massachusetts policy with

an out-of-state policy.

Can be prohibited with clear unambiguous language.

Situations InvolvingMultiple Defendants

Two defendants/one insured but the other is not insured.

Set off against damages: not coverage limit when settling with other defendants.

Subrogation right against all tortfeasors subject to limitation.

Plaintiff entitled to full recovery before U.M. carrier can exercise subrogation rights.

Bonte v. American Global,

136 N.H. 528 (1992)

Exhaustion Requirement

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Exhaustion Requirements Have Been Upheld Vis A Vis Underinsured Tortfeasor.

Exhaustion Required Vis A Vis Other Insured Defendant Is Not Yet Resolved.

Stevens v. Merchants, 135 N.H. 26 (1991)

Obligation to get consent to settle may apply to all

defendants legally liable for accident.

Harrington v. Concord General MutualInsurance, 152 N.H. 26 (2005)

(Plaintiff failed to get written permission before settling with tortfeasor’s employer: U.M. claimbarred)

Mandatory Release LanguageRSA 264:15(v)

WARNING:

"IF YOU SIGN THIS RELEASE YOU MAY FORFEIT YOUR RIGHT TO UNINSURED

MOTORIST INSURANCE BENEFITS FROM YOUR OWN AUTOMOBILE INSURANCE POLICY.

CONSULT WITH YOUR INSURANCE AGENT, YOUR AUTOMOBILE INSURANCE COMPANY,

OR YOUR ATTORNEY BEFORE SIGNING.''

Day v. Hanover,160 N.H. 625 (2010)

Consent to settle with tortfeasor is not admission of liability on

U.M. claim.

Owned but not Insured Motor Vehicles

Brickley v. Progressive, 160 N.H. 625 (2010)

Owned but uninsuredauto exclusions valid

if unambiguous.

Motorcyclist was not “occupying” motorcycle when vehicle struck him as he lay on pavement after

ejection from motorcycle, and thus, owned vehicle exclusion of coverage while occupying owned

vehicle not insured for coverage did not apply to claim for uninsured motorist (UM) benefits under

policy on automobile, the motorcyclist was 40 feet from the motorcycle and was not in upon, getting,

in, on, out or off the motorcycle, and his connection had been severed.

Miller v. Amica Mutual156 N.H. 117 (2007)

Workers’ Compensation Setoff

Appeal of Ferris (2005)

WORKERS’ COMPENSATIONSET OFF

Workers’ compensation exclusion Invalid.

Workers’ compensation carrier entitled to lien on U.M. recovery.

Merchants Mutual v. Orthopedic Prof. Assn., 124 NH 648 (1984)

Butcher v. American Economy, Inc., USDC NH (6/7/12)

U.M. carrier has right to recover from other legally responsible

parties.

RSA 264:15(III)

However, the statute is restricted to cases where allowing the injured party to collect

the full amount of U.M. benefits would result in a double or overlapping recovery for the

Plaintiff.

Bonte v. American Global,136 N.H. 528 (1992)

Statute of Limitations

Contractual in nature

3 years from the “breach” of policy provisions.

Processing Uninsured Motorist Claims

Binding Arbitration Jury Trialv.U.M. Carrier’s consent to settlement with tortfeasor was not also an agreement to arbitrate.

Funai v. Metropolitan, 145 N.H. 642 (2000)

Interrogatories and deposition

are allowed RSA 542

EUO refusal forfeits coverage

IME

Interest from date of award only(Arbitration Cases)

Presented by:Laurence W. Getman

Getman, Schulthess & Steere, P.A.1838 Elm Street

Manchester, NH 03104ph 603.634.4300

www.gss-lawyers.com