Masse v. Commercial Union Ins. Co.

• Citation: 620 A.2d 1041,136 N.H. 628
• Decision Date: 17 February 1993
• Docket Number: No. 91-531,91-531
• Parties: Robert MASSE and Betty Masse v. COMMERCIAL UNION INSURANCE COMPANY.
• Court: Supreme Court of New Hampshire

Page 1041

620 A.2d 1041

136 N.H. 628

Robert MASSE and Betty Masse v. COMMERCIAL UNION INSURANCE COMPANY.

No. 91-531.

Supreme Court of New Hampshire.

Feb. 17, 1993.

Rehearing Denied March 23, 1993.

Shaheen, Cappiello, Stein & Gordon, Concord and Dover (Peter G. Callaghan, on the brief, and William H. Shaheen, orally), for plaintiffs.

Mulvey, Noucas & Cornell, P.A., Portsmouth (Lesley F. Cornell, on the brief and orally), for defendant.

JOHNSON, Justice.

This is a dispute between the plaintiffs, Robert and Betty Masse (the Masses), and their uninsured motorist carrier, defendant Commercial Union Insurance Company (Commercial Union), over coverage for injuries sustained in an accident involving an uninsured motorist. Commercial Union appeals the Superior Court's (Temple, J.) ruling setting aside and modifying the decision of the arbitrator (Stephen J. Dibble), who denied coverage for the Masses. The sole issue we discuss is whether the superior court properly found the arbitrator's decision flawed by "plain mistake." We conclude that it did not and therefore reverse.

The accident engendering this litigation occurred on August 7, 1987, at approximately 9:00 p.m., near the intersection of Pine and Mill Roads in North Hampton. Robert Masse and Robert Blatchford were riding on Blatchford's motorcycle when the motorcycle collided with two trees, throwing both men to the ground and injuring them severely. Neither man was wearing a helmet, and the force of the impact destroyed their memories of the accident. A police officer responded to the scene, but took no photographs of the area, elicited no statements from the men, and noted no physical evidence of the accident other than the positions of the men, the motorcycle, the intersection, and the two trees. Apparently, no one but the now memory-impaired motorcyclists witnessed the collision.

The Masses assumed that Blatchford, and not Robert Masse, drove the motorcycle at the time of the accident, and as Blatchford had no liability insurance, the Masses asked Commercial Union for coverage under the uninsured motorist provisions of their insurance contract. These provisions state that Commercial Union must pay the Masses any damages which an owner or operator of an uninsured motor vehicle is legally obligated to pay the Masses, so long as the owner or operator's liability arises "out of the ownership, maintenance or use" of the uninsured vehicle. Commercial Union denied the Masses' claim, and the case went to arbitration.

At the hearing before the arbitrator, the parties presented the following evidence to explain how the accident probably happened. First, the Masses introduced Blatchford's deposition testimony that he had never had any mechanical problems with the motorcycle. Second, they submitted a police accident reconstruction diagram showing the motorcycle's direction and point of loss of control; the diagram, however, cites no evidence to support this reconstruction. Finally, they introduced testimony suggesting that Blatchford in fact drove the motorcycle. Commercial Union introduced the relevant portions of the insurance contract and elicited testimony that Robert Masse may have been drinking just before the ride.

The arbitrator decided the case in Commercial Union's favor, finding that

"[o]n the state of the evidence there is no reason to conclude that Robert Blatchford was incompetent in the operation of a motorcycle, that he could not and did not exercise reasonable care and caution at all pertinent times, or that claimant failed to exercise due care and caution in accepting a ride on the motorcycle on the evening in question or in conducting himself upon such motorcycle while underway."

The arbitrator noted the lack of foundation for the accident reconstruction contained in the police diagram and ruled:

"On the state of the evidence presented, there is no means by which the arbitrator can conclude more probably than not that the motorcycle was traveling on either Pine Road or Mill Road prior to the loss of control, whether it was traveling in a northerly or southerly direction at such time, whether it was traveling in its proper travel lane or in the opposite lane, or whether it was traveling at a reasonable speed or at an unreasonable speed at the time of loss of control.... While there is evidence that an accident occurred at the time and place alleged by claimant and described in the police report, there is no evidence that it resulted from a negligent act or omission of Robert Blatchford."

The arbitrator concluded that Blatchford probably drove the motorcycle at the time of the accident and found "no evidence that the loss of control was or was not caused by the negligent act of some unknown person or object, animate or inanimate." The arbitrator did not mention Blatchford's deposition testimony that the motorcycle had been mechanically sound before the accident.

The Masses appealed the arbitrator's decision to the superior court pursuant to RSA 542:8, which allows a party to "apply to the superior court for an order ... correcting or modifying the [arbitrator's] award for plain mistake." After reviewing the record of the arbitration hearing, see Masse v. Commercial Union Ins. Co., 134 N.H. 523, 526, 593 A.2d 1164, 1165-66 (1991), the superior court agreed with the arbitrator's characterization of the evidence as largely inconclusive. The court, however, noted what the arbitrator failed to mention: that Blatchford had described his motorcycle as being mechanically sound prior to the accident. The court consequently found "plain mistake" in the arbitrator's decision and stated: "[T]here appears to be no basis to find that this accident occurred other than as a result of the negligence of Mr. Blatchford. As noted above, [the accident] cannot be attributed to other causes on the evidence presented."

On appeal to this court, Commercial Union maintains that the superior court exceeded the scope of its review and substituted its own judgment for that of the arbitrator. Nothing in the evidence presented to the arbitrator, Commercial Union argues, required him to find in the Masses' favor. The Masses disagree, arguing that the superior court correctly found the arbitrator's decision unreasonable, unsupported by the evidence, factually erroneous, and an abuse of discretion. In particular, the Masses contend that the superior court's ruling implicitly supports their argument that the arbitrator held them to an erroneously high standard of proof.

Before examining the law of "plain mistake," we first address a preliminary issue, our standard of review. The Masses argue that the superior court's order deserves the deference usually given to a lower court's findings. See, e.g., Liberty Mut. Ins. Co. v. Custombilt, Inc., 128 N.H. 167, 170, 512 A.2d 1098, 1099 (1986). We disagree. "[B]ecause the trial judge decided the case on the [record] and therefore could not have observed the demeanor and credibility of the witnesses, the standard of review should be broadened." Allstate Ins. Co. v. Carr, 119 N.H. 851, 854, 409 A.2d 782, 783-84 (1979). "As all the documents from below are available for our perusal, the lower court was in no better position to decide the case than are we." Hillside Assocs. of Hollis v. Maine Bonding & Cas. Co., 135 N.H. 325, 330, 605 A.2d 1026, 1029 (1992).

Turning to the main issue on appeal, we note that RSA 542:8 allows the superior court to alter an arbitrator's decision only for "plain mistake," or to vacate...