Marcotte v. Timberlane/Hampstead Sch. Dist.

• Decision Date: 09 February 1999
• Docket Number: No. 94–061.,94–061.
• Citation: 733 A.2d 394,143 N.H. 331
• Court: New Hampshire Supreme Court
• Parties: Robert MARCOTTE, Administrator of the Estate of Nicholas Marcotte v. TIMBERLANE/HAMPSTEAD SCHOOL DISTRICT and another.

143 N.H. 331

733 A.2d 394

Robert MARCOTTE, Administrator of the Estate of Nicholas Marcotte

v.TIMBERLANE/HAMPSTEAD SCHOOL DISTRICT and another.

No. 94–061.

Supreme Court of New Hampshire.

Feb. 9, 1999.

Devine, Millimet & Branch, P.A., of Manchester (Andrew D. Dunn on the brief and orally), for the plaintiff.

McDonough & O'Shaughnessy, P.A., of Manchester (Michael B. O'Shaughnessy and Cindy Robertson on the brief, and Mr. O'Shaughnessy orally), for defendant Timberlane/Hampstead School District.

Wadleigh, Starr, Peters, Dunn & Chiesa, of Manchester (Charles J. Dunn & a. on the brief, and Mr. Dunn orally), for defendant Process Engineering, Inc.

Bouchard & Mallory, P.A., of Manchester (Blake M. Sutton and Robert S. Stephen on the brief, and Mr. Sutton orally), for defendant Timberlane Soccer League.

Sulloway & Hollis, of Concord (Martin L. Gross and William D. Pandolph on the brief), for the American Insurance Association, as amicus curiae.

Orr & Reno, P.A., of Concord (Cordell A. Johnston & a. on the brief), for The Hitchcock Clinic and New Hampshire Medical Malpractice Joint Underwriters Association, as amici curiae.

Nixon, Hall & Hess, P.A., of Manchester (Kathryn B. Johnston on the brief), for the New Hampshire Trial Lawyers Association, as amicus curiae.

HORTON, J.

Following trial of a wrongful death action, see RSA 556:12 (1997) (amended 1997, 1998), the jury awarded $925,000 to the plaintiff, Robert Marcotte as administrator of the estate of Nicholas Marcotte. On appeal, the plaintiff argues that the Superior Court (Fauver , J.) erred in abating the verdict against defendant Timberlane/Hampstead School District (school district) to $150,000. See RSA 507–B:4 (1997). On cross-appeal, the defendants, Timberlane Soccer League (soccer league) and the school district, contend that the superior court erred: (1) in permitting the plaintiff to introduce evidence of loss of life, also known as hedonic damages; (2) instructing the jury that it may consider loss of life as an element of damages; (3) in admitting certain evidence, including computer diary entries and photographs of the decedent, his belongings, and the accident scene; and (4) in refusing to set aside the verdict as excessive. In addition, the soccer league argues that the trial court erred in failing to provide various requested jury instructions. We reverse the abatement of the verdict against the school district and affirm the remaining rulings.

A representative of the soccer league designed a set of soccer goals by modifying a design found in a goal manufacturer's publication. In manufacturing the goals, Process Engineering, Inc. (Process Engineering) made additional design modifications furnished by the soccer league. In 1985, the soccer league donated the 310–pound steel goals to the school district, assembling and installing them on the school district's grounds. The soccer goals were apparently used without incident until March 1989, when one of the goals at the Pollard School in the defendant school district tipped over, injuring a student. Another Pollard School student was injured in an accident involving one of the goals in August 1989.

On September 27, 1989, during recess at the Pollard School, Nicholas Marcotte died from injuries sustained when a fellow second-grade student tipped over one of the unanchored goals, striking Nicholas in the head. The plaintiff commenced a wrongful death action alleging: (1) that the soccer league and Process Engineering were negligent in the design, fabrication, testing, and installation of the soccer goal; and (2) that the school district was negligent in failing to maintain its grounds in a safe and reasonable condition when it knew or should have known of the dangerous nature of the soccer goal.

Prior to trial, the trial court denied the defendants' motion to exclude evidence of damages for loss of life. At trial, the plaintiff introduced the decedent's computerized diary and photographs of the decedent and his belongings. The plaintiff also introduced photographs of the accident scene. The jury found the defendants jointly and severally liable for the death of Nicholas, and awarded damages of $925,000 plus interest and costs to his estate. Process Engineering subsequently settled with the plaintiff and withdrew its appeal from this court.

I. Abatement of Verdict

The plaintiff argues that the trial court erred in abating the verdict against the school district to $150,000. The school district asserts that the plaintiff waived any challenge to abatement of the verdict by failing to file either a declaratory judgment action, see RSA 491:22 (1997), or other pleadings prior to objecting to the motion to abate. The statutory procedure, however, for obtaining a declaratory judgment does not impose a mandatory duty to use that procedure. Cf . Howard v. Hartford Ins. Co. , 127 N.H. 727, 730, 507 A.2d 230, 231–32 (1986). Furthermore, the plaintiff's objection to the motion to abate provided the trial court and the school district with an adequate and timely opportunity to address the issue. Cf . State v. Tselios , 134 N.H. 405, 407, 593 A.2d 243, 245 (1991).

Regarding the merits, RSA 507–B:4, I, provides that the "[l]iability of a governmental unit for bodily injury, personal injury or property damage sustained by any one person in actions brought under this chapter is limited to $150,000." RSA 507–B:4, III directs the court to "abate any verdict to the extent it exceeds the limits prescribed in this section."

To protect against risk of loss, RSA 412:3 (1998) authorizes the State and municipal subdivisions, including school districts, to procure liability insurance. The statute provides:

In any action against the state or any municipal subdivision thereof to enforce liability on account of a risk so insured against, the insuring company or state or municipal subdivision thereof shall not be allowed to plead as a defense immunity from liability for damages resulting from the performance of governmental functions ... provided, however, that liability in any such case shall not exceed the limits of coverage specified in the policy of insurance or as to governmental units defined in RSA 507–B, liability shall not exceed the policy limit or the limit specified in RSA 507–B:4, if applicable, whichever is higher , and the court shall abate any verdict in any such action to the extent that it exceeds such limit.

RSA 412:3 (emphasis added).

At the time of the accident, the school district was insured under a primary policy with a $1,000,000 personal injury liability limit and an "excess umbrella" policy with a $4,000,000 personal injury limit issued by Reliance Insurance Company. The primary insurance policy was subject to certain endorsements, two of which are at issue here. The first endorsement provides:

In consideration of the premium charged it is hereby understood and agreed that the General Liability Declarations form ... is to read as follows:

Personal Injury and Advertising Injury Limit*

$150,000. per person/$500,000. per occurrence

The second endorsement states:

In consideration of the premium charged it is hereby understood and agreed that the limits of liability will be as they appear on [the first endorsement], except:

1. Where the specific liability limits of N.H. RSA 507–B do not apply, or

2. if any liability limit of N.H. RSA 507–B is found to be unconstitutional then the policy limit will be

Personal Injury and Advertising Injury *-$1,000,000.

The plaintiff argues that the primary policy provides $1,000,000 in personal injury coverage and that the insurer's attempt to restrict coverage through its limiting endorsements contravenes the letter and intent of RSA 412:3. We agree.

The interpretation of an insurance policy is a question of law for this court to decide. See Weeks v. St. Paul Fire & Marine Ins. Co. , 140 N.H. 641, 643, 673 A.2d 772, 774 (1996) (quotation omitted.) "We take the plain and ordinary meaning of the policy's words in context, and we construe the terms of the policy as would a reasonable person in the position of the insured based on more than a casual reading of the policy as a whole." High Country Assocs. v. N.H. Ins. Co. , 139 N.H. 39, 41, 648 A.2d 474, 476 (1994).

We read the two endorsements together as purporting to offer the school district personal injury coverage of $150,000 per person, unless the liability limit set forth in RSA 507–B:4, I, is either inapplicable or unconstitutional. If such statutory provision is either inapplicable or unconstitutional, the primary policy provides $1,000,000 in personal injury coverage. We conclude that RSA 507–B:4, I, does not apply when a governmental unit purchases liability insurance that would apply but for the statutory liability limit itself. Accordingly, we hold that the trial court erred in abating the verdict under RSA 412:3. Although the school district may assert the cap on its liability, its insurance company may not. Reliance Insurance Company remains liable up to the $1,000,000 limit of its primary policy.

Our holding flows from the intent behind RSA 412:3. In Cushman v. Grafton , 97 N.H. 32, 79 A.2d 630 (1951), this court concluded that a county's purchase of liability insurance did not render the then-existing rule of municipal immunity inapplicable. Id. at 34–35, 79 A.2d at 632. We reasoned that liability insurance is designed to protect the insured in the event of liability, not to create or increase liability that would otherwise not exist. Id. at 35, 79 A.2d at 632. Following the Cushman decision, the legislature promptly enacted the predecessor to RSA 412:3. See Laws 1951, ch. 197; see also Consoli v. Insurance Company , 97 N.H. 224, 226, 84 A.2d 926, 927 (1951). Since the purpose of RSA 412:3 is to permit recovery of damages against governmental units up to the limit of insurance purchased, see Merrill v. Manchester , 114 N.H. 722, 727, 332 A.2d 378, 382 (1974), we refuse to adopt an interpretation of the interplay among RSA 412:3, RSA...