Masse v. Commercial Union Ins. Co., 90-472

• Court: Supreme Court of New Hampshire
• Citation: 134 N.H. 523,593 A.2d 1164
• Docket Number: No. 90-472,90-472
• Parties: Robert MASSE and Betty Masse v. COMMERCIAL UNION INSURANCE COMPANY.
• Decision Date: 26 July 1991

Page 1164

593 A.2d 1164

134 N.H. 523

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

No. 90-472.

Supreme Court of New Hampshire.

July 26, 1991.

Shaheen, Cappiello, Stein & Gordon P.A., 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.

BROCK, Chief Justice.

The plaintiffs, Robert and Betty Masse, appeal from the Superior Court's (Dickson, J.) dismissal of their petition to set aside an arbitrator's (Stephen J. Dibble, Esq.) decision. In their petition, the plaintiffs assert that the arbitrator's denial of their claim against the defendant, Commercial Union Insurance Company (Commercial Union), for uninsured motorist coverage was the result of plain mistake and, hence, should have been set aside. Because the trial court dismissed the plaintiffs' petition without considering the record or the arbitrator's findings and rulings, we reverse and remand.

In the memorandum supporting their petition to set aside the arbitrator's decision, the plaintiffs allege the following. In August, 1987, plaintiff Robert Masse was seriously injured when the motorcycle on which he was a passenger left the road and struck two trees. According to the plaintiffs, the owner and driver of the motorcycle Robert Blatchford, lost control of it as they approached an intersection at the end of a street. As a result, they failed to stop at the intersection, crossing it, and travelled into a wooded area at a high rate of speed. The motorcycle struck one tree, throwing Masse off, and then continued an additional seventeen feet, where it struck a second tree. The plaintiffs also allege that Blatchford had purchased the motorcycle five months earlier and had never had any mechanical problems with the bike. Other than Masse and Blatchford, there were no eyewitnesses to the accident.

On learning that Blatchford was uninsured, the plaintiffs sought recovery for Robert Masse's injuries from their insurer, Commercial Union, under their policy's uninsured motorist clause. Commercial Union denied their claim, whereupon the plaintiffs requested that their claim be submitted to arbitration. At the arbitration hearing, the plaintiffs testified and presented numerous exhibits, including, inter alia, a police report and diagram of the accident and a transcription of a deposition of Blatchford. After reviewing the evidence and making findings of fact and rulings of law, the arbitrator concluded that

"there [was] a total absence of evidence by which one can conclude more probably than not that the injuries received by the claimant were the proximate result of the failure of Robert Blatchford to exercise reasonable care and caution in the operation of his motorcycle under the circumstances pertaining at the time of loss of control."

In their petition to set aside the arbitrator's decision, the plaintiffs asserted that the denial of their claim was "clearly wrong, the result of plain mistake, and against the weight of the evidence." The basis for this assertion was the arbitrator's alleged failure to apply the doctrine of res ipsa loquitur to the plaintiffs' case, thus requiring them to prove their case through the use of direct evidence. Because there was no direct evidence of Blatchford's negligence, the plaintiffs argue that the arbitrator held them to a higher legal standard than required and that a review of the record would show that the...