Bertolami v. Merchants Mut. Ins. Co.

• Decision Date: 05 May 1980
• Docket Number: No. 79-270,79-270
• Citation: 120 N.H. 308,414 A.2d 1281
• Parties: Jeannette BERTOLAMI v. MERCHANTS MUTUAL INSURANCE COMPANY.
• Court: New Hampshire Supreme Court

Page 1281

414 A.2d 1281

120 N.H. 308

Jeannette BERTOLAMI v. MERCHANTS MUTUAL INSURANCE COMPANY.

No. 79-270.

Supreme Court of New Hampshire.

May 5, 1980.

Upton, Sanders & Smith, Concord, by brief, for plaintiff.

Hall, Morse, Gallagher & Anderson, Concord (Robert E. K. Morrill, Concord, orally), for defendant.

DOUGLAS, Justice.

The plaintiff in this case questions the legitimacy of an automobile liability policy clause that allows the insurer to deduct medical payments from amounts paid under the policy's uninsured motorist endorsement. We hold that the clause is void.

On December 22, 1970, an uninsured motorist struck and injured Janet Bertolami, minor daughter of Jeannette Bertolami, as she was crossing a street. At the time of the accident, the plaintiff had in force a Merchants Mutual Insurance Company automobile liability policy. The policy carried an uninsured motorist endorsement, which provided coverage of $15,000 for each person and $30,000 for each accident, and a medical payments endorsement with a limit of $500 for each person. The plaintiff paid a separate premium for each type of coverage.

Following the accident, the plaintiff sued both the uninsured motorist and her own insurer, Merchants Mutual. The plaintiff settled her uninsured motorist claim with Merchants Mutual for $7,000, and she and her daughter released the company from future claims that might arise from the accident. The release, however, excepted "any claim and suit . . . which . . . Janet Bertolami may have under (the policy's) medical payments provision . . . ." The plaintiff later sued Merchants Mutual in Concord District Court for $500 in medical payments. The District Court (Waters, S. J.) found for the plaintiff on the merits and the defendant appealed pursuant to Supreme Court Rule 7.

In its argument that it does not owe the plaintiff $500, the defendant relies on the following policy clause:

The company shall not be obligated to pay under this (uninsured motorist) Coverage that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for medical services paid or payable under Part II (expenses for medical services).

(Emphasis added.) Clearly this language means that any medical payments made under PART II may be deducted from payments made under the uninsured motorist endorsement. We think it equally clear that if the insurer makes medical payments under the uninsured motorist endorsement it will rely on the above clause in refusing to pay claims for the same medical payments made under PART II. Thus, if this medical payments deduction clause is valid, the plaintiff cannot recover. We hold, however, that it violates statutory law and is therefore void.

Before addressing the statutory issue, we discuss the insurer's argument that if the plaintiff now recovers under her medical payments endorsement she will be paid twice for the same medical expenses. This, Merchants Mutual implies, would be unjust. We disagree. Charges for medical services rendered as a result of injuries inflicted by uninsured motorists are compensable under the plaintiff's uninsured motorist endorsement. RSA 268:15-a (Supp.1970). Certainly they are insured against under the medical payments provision. The plaintiff paid a separate premium for each type of coverage. Under these circumstances, we see nothing unjust in allowing plaintiff to recover under each endorsement. Her decision to purchase personal protection beyond that afforded by her policy's uninsured motorist endorsement should not now be used as an argument to limit the company's statutory obligations under either the uninsured motorist or the medical payments endorsement. Bacchus v. Farmers Ins. Group Exchange, 106 Ariz. 280, 475 P.2d 264 (1970); cf. Shea v. United Services Automobile Assoc., 120 N.H. ---, 411 A.2d 1118 (1980) (plaintiff allowed to stack coverage under three separate policies for which he paid separate premiums). Since 1971, RSA 268:15-b has required a minimum amount of separate medical payments coverage.

At the time the plaintiff bought her policy, the following sections of RSA ch. 268 were in effect:

268:1 Definitions. . . . VII. "Motor Vehicle Liability Policy," a policy of liability insurance which provides . . . indemnity for or protection to the insured and (other) . . . against loss by reason of the liability to pay damages to others for damage to property . . . or bodily injuries . . . accidentally sustained . . . to the amount or limit of at least fifteen thousand dollars on account of injury to or death of any one person . . . of at least thirty thousand dollars on account of any one accident resulting in injury to or death of more than one person. . . .

268:15-a I New Insured or Hit-and-Run Motor Vehicle Coverage. I. No (motor vehicle liability) policy shall be issued or delivered 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 operators of uninsured motor vehicles . . . because of bodily injury, sickness or disease, including death resulting therefrom. . . .

RSA 268:1 VII (Supp.1970) (emphasis added), :15-a I (Supp.1970). These statutes, read together, clearly required that the defendant offer the plaintiff minimum uninsured motorist coverage of $15,000 per person and $30,000 per accident. Nowhere in RSA ch. 268 was it permitted, or even suggested, that these minimums could be lowered at the option of the insurer. The clear thrust of...