Green Mountain Ins. Co. v. Bonney

• Decision Date: 13 July 1989
• Docket Number: No. 88-381,88-381
• Citation: 131 N.H. 762,561 A.2d 1057
• Parties: GREEN MOUNTAIN INSURANCE COMPANY v. Orvis W. BONNEY, Jr.
• Court: New Hampshire Supreme Court

Page 1057

561 A.2d 1057

131 N.H. 762

GREEN MOUNTAIN INSURANCE COMPANY v. Orvis W. BONNEY, Jr.

No. 88-381.

Supreme Court of New Hampshire.

July 13, 1989.

Wiggin & Nourie, Manchester (Gordon A. Rehnborg, Jr., and Doreen F. Connor, Manchester, on the brief), for plaintiff.

Raymond J. Kelly, Manchester, by brief and orally, for defendant.

Nixon, Hall & Hess, Manchester (Francis G. Murphy, Jr., Manchester, on the brief) by brief for David, Norman, and Jarrod Limbert, as amici curiae.

BATCHELDER, Justice.

This case presents an appeal of a summary judgment order recommended by a Master (Frank B. Clancy, Jr., Esq.) and approved by the Superior Court (Manias, J.). The order granted plaintiff Green Mountain Insurance Company's motion for summary judgment against defendant, Orvis W. Bonney, Jr., in a declaratory judgment action brought to determine whether or not Bonney should be allowed to stack uninsured/underinsured motorists' coverage in this case. For the reasons that follow, we reverse and remand for proceedings consistent with this opinion.

On June 5, 1986, the defendant, Bonney, was seriously injured in an automobile accident involving his automobile and an automobile operated by Raymond Rice. At the time of the accident Bonney was insured under a policy issued by Green Mountain Insurance Company (Green Mountain) which provided uninsured/underinsured motorist coverage with limits of $100,000 per person and $300,000 per occurrence for three vehicles.

With Green Mountain's permission, Bonney settled with Rice for $50,000, the limit of Rice's liability coverage. However, Bonney claimed that Rice's policy limits were inadequate to compensate him for the injuries he sustained in the accident and filed a claim with Green Mountain for uninsured/underinsured motorist coverage. A dispute arose as to the amount of underinsured motorists' coverage available to Bonney under the Green Mountain policy. Bonney asserted that, since he was operating one of the three vehicles insured under the policy, he was entitled to stack the uninsured motorist coverage, obligating Green Mountain to provide him coverage in the amount of $300,000 per person and, subject to the per person limitation, $900,000 per occurrence.

As a result of this dispute Green Mountain filed a declaratory judgment action to determine the amount of uninsured motorist coverage available to Bonney. The company took the position that the maximum amount available under the policy would be $100,000 per person and, subject to the per person limitation, $300,000 per occurrence, less credits for any contributions from tortfeasors. It argued that policy Endorsement # 191, which was in effect prior to the accident date, clearly and unambiguously prohibited stacking. Endorsement # 191 provided in pertinent part:

"This endorsement modifies such insurance as is afforded by the provision of the policy relating to ...

COVERAGE J--UNINSURED MOTORISTS

IT IS AGREED THAT:

The limits of liability shown in the Declarations are our maximum limits of liability for all damages in any one accident or occurrence. This is the most we will pay regardless of the number of persons insured, claims made, vehicles or premiums shown in the Declarations, or vehicles involved in the accident or occurrence."

On May 9, 1988, Green Mountain moved for summary judgment on the declaratory judgment action. In support of its motion, Green Mountain submitted affidavits from the office manager of the insurance agency where Bonney purchased the policy, stating that his agency mailed the original declaration sheet and a revised copy of the policy text including Endorsement # 191 to Bonney on August 28, 1984. Green Mountain also attached a copy of the policy jacket including Endorsement # 191 provided to it by Bonney's attorney by letter dated August 18, 1987, as the "actual policy jacket that [his] client had at the time of the accident."

In response, Bonney argued that summary judgment was inappropriate because a material issue of fact existed as to what policy documents, if any, Green Mountain provided Bonney prior to the accident date. The Bonneys presented affidavits in support of their position, which stated that they customarily purchased monthly automobile insurance coverage from the Whittemore Insurance Agency for which they received only declarations pages and that they did not recall ever having received a policy pamphlet prior to the accident. Orvis Bonney's affidavit also stated that he had never received a copy of the full policy text, including Endorsement # 191, until after the accident, when he went to the agency in December 1986 and asked for a copy of the full policy. The copy he received at that time was the one he subsequently gave to his attorney. Mr. Bonney also stated that, when he asked employees at the insurance agency why he had never received a copy of the policy, he was told that it was not their usual practice to send a copy of the full policy text to monthly customers.

The master recommended, and the court found, that summary judgment should be awarded in favor of Green Mountain limiting stacking as provided in Endorsement # 191, and that no genuine issue of material fact was raised by Bonney's argument that he did not receive notice of the existence of Endorsement # 191 until after the accident. This appeal ensued.

On appeal Bonney argues that summary judgment was improper in this case because a material issue of fact exists as to whether or not he ever received a copy of the insurance policy containing Endorsement # 191. He contends that receipt of the policy text is material in this case because Endorsement # 191 cannot be applied as an effective limitation of the insurer's liability for stacking under the insurance contract if it was never mutually agreed to by the contracting parties. He claims that if the issues of notice and receipt of the policy text are resolved in his favor they would effectively preclude the application of Endorsement # 191.

The defendant also contends that, since the monthly declarations sheets and bills contained all the essential elements of the insurance contract to which the...