Brickley v. Progressive N. Ins. Co.

• Decision Date: 19 August 2010
• Docket Number: No. 2009–389.,2009–389.
• Citation: Brickley v. Progressive N. Ins. Co., 160 N.H. 625, 7 A.3d 1215 (N.H. 2010)
• Court: New Hampshire Supreme Court
• Parties: Richard BRICKLEY and another v. PROGRESSIVE NORTHERN INSURANCE COMPANY.

160 N.H. 625

7 A.3d 1215

Richard BRICKLEY and another

v.PROGRESSIVE NORTHERN INSURANCE COMPANY.

No. 2009–389.

Supreme Court of New Hampshire.

Argued: March 24, 2010.

Opinion Issued: Aug. 19, 2010.

Mulvey Professional Association, of Portsmouth (Patrick A. Mulvey on the memorandum of law and orally), for the plaintiffs.

Wiggin & Nourie, P.A., of Manchester (Gordon A. Rehnborg, Jr. and Mary Ann Dempsey on the brief, and Mr. Rehnborg orally), for the defendant.

CONBOY, J.

In this declaratory judgment proceeding, the defendant, Progressive Northern Insurance Company(Progressive), appeals an order of the Superior Court(McHugh, J.) denying its motion for summary judgment and granting partial summary judgment in favor of the plaintiffs, Richard Brickley and Richard Brickley as father and next friend of Cory Brickley.The trial court found that the term "motor vehicle" in the "Uninsured Motorist Coverage"section of the Brickley family's motor vehicle insurance policy was ambiguous and concluded that coverage was required under the policy.We affirm.

The following facts are not in dispute.On April 30, 2008, Cory Brickley(Cory), a minor, was involved in an accident while operating a 2006 KymcoMXU 250 all-terrain vehicle (ATV).As Cory exited from his parents' driveway on Pingree Hill Road in Auburn, he was struck by a Chevrolet Corvette driven by James Russell, an uninsured motorist.The ATV that Cory was operating was owned by his father, Richard, and designed for use and operation principally off public roads.At the time of the accident, Cory resided with his parents, Richard and Mary Brickley.

Progressive denied the Brickleys' claim for coverage under an automobile insurance policy, effective April 30, 2008(the policy), issued to Mary Brickley, the named insured.The policy explicitly insures two automobiles, a 2006 Mitsubishi Outlander SE and a 2002 Mercury Grand Marquis LS, and provides five types of coverage described under separate headings.Richard Brickley(Brickley) filed suit seeking a declaratory judgment that Progressive was obligated to provide coverage under Part II of the policy for medical payments and Part III for uninsured motorist coverage.Progressive moved for summary judgment contending that it is not required to provide medical payments coverage because Cory does not meet the definition of an "insured person" under the policy, and that it is not required to provide uninsured motorist coverage because the accident fell within the policy's "household exclusion."Brickley filed a cross-motion for summary judgment arguing, in part, that the ATV Cory was operating is not a "motor vehicle" as defined under the household exclusion and therefore Progressive is obligated to provide uninsured motorist coverage.The trial court ruled that Cory is not an "insured person" as defined in the policy and as a result Progressive is not obligated to provide medical payments coverage.The court also ruled that the term "motor vehicle" in the household exclusion is ambiguous and resolved the ambiguity in favor of the plaintiffs, requiring Progressive to provide uninsured motorist coverage.Progressive appealed.

"We review de novothe trial court's application of the law to the facts in its summary judgment ruling."Progressive N. Ins. Co. v. Concord Gen. Mut. Ins. Co.,151 N.H. 649, 652, 864 A.2d 368(2005).We consider all of the evidence presented in the record, and all inferences properly drawn therefrom, in the light most favorable to the non-moving party.Id."If our review of that evidence discloses no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law, then we will affirm the grant of summary judgment."Id.

"In a declaratory judgment action to determine the coverage of an insurance policy, the burden of proof is always on the insurer, regardless of which party brings the petition."Carter v. Concord Gen. Mut. Ins. Co.,155 N.H. 515, 517, 924 A.2d 411(2007)."The interpretation of exclusions in an insurance policy is ultimately an issue for this court."M. Mooney Corp. v. U.S. Fidelity & Guaranty Co.,136 N.H. 463, 470, 618 A.2d 793(1992)."Absent public policy or statutory provisions to the contrary, insurers have the right to limit their liability by exclusions written in terms appropriate to convey their meaning and effect to a reasonable person in the position of the insured."Murley v. Hanover Ins. Co.,155 N.H. 540, 542, 927 A.2d 485(2007)."We construe the language as would a reasonable person in the position of the insured based upon a more than casual reading of the policy as a whole."Hartley v. Elec. Ins. Co.,154 N.H. 687, 688, 919 A.2d 808(2007)."If more than one reasonable interpretation is possible, and an interpretation provides coverage, the policy contains an ambiguity and will be construed against the insurer."Catholic Med. Ctr. v. Executive Risk Indem.,151 N.H. 699, 701, 867 A.2d 453(2005)(quotation omitted)."Our practice of construing ambiguities against the insurer is particularly applicable when the language at issue is part of an exclusionary clause."Carter,155 N.H. at 517–18, 924 A.2d 411."We will not, however, perform amazing feats of linguistic gymnastics to find a term ambiguous."Catholic Med. Ctr.,

151 N.H. at 701, 867 A.2d 453(quotation omitted).

Progressive's policy sets forth general definitions that are intended to apply throughout the policy.In addition, each section of the policy includes a list of defined terms that are intended to apply throughout that section.Defined terms are printed in boldface type to notify the reader which words have a specific definition.The term "motor vehicle" is not defined in the general definitions section of the policy.

Part II of the policy, the medical payments coverage section, provides that:

If you pay the premium for this coverage, we will pay the reasonable expenses incurred for necessary medical services received within three years from the date of a motor vehicle accident because of bodily injury:

1. sustained by an insured person; and

2. caused by that motor vehicle accident.

Part II of the policy defines "motor vehicle" as "a land motor vehicle designed for use principally on public roads."

Part III of the policy, the uninsured motorist coverage section, provides that:

If you pay the premium for this coverage, we will pay for damages that an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:

1. sustained by an insured person;

2. caused by an accident; and

3. arising out of the ownership, maintenance, or use of an uninsured

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