Metropolitan Property & Liability Ins. Co. v. Walker

• Decision Date: 12 February 1993
• Docket Number: No. 91-219,91-219
• Citation: 136 N.H. 594,620 A.2d 1020
• Parties: METROPOLITAN PROPERTY & LIABILITY INSURANCE COMPANY v. Pauline WALKER.
• Court: New Hampshire Supreme Court

Page 1020

620 A.2d 1020

136 N.H. 594

METROPOLITAN PROPERTY & LIABILITY INSURANCE COMPANY v. Pauline WALKER.

No. 91-219.

Supreme Court of New Hampshire.

Feb. 12, 1993.

Wiggin & Nourie, Manchester (Richard B. McNamara on brief and Doreen F. Connor on the brief and orally), for plaintiff.

James M. Winston, Manchester, on brief and orally, for defendant.

BATCHELDER, Justice.

The defendant, Pauline Walker, appeals the Superior Court's (Barry, J.) grant of the plaintiff's, Metropolitan Property and Liability Insurance Company, motion for summary judgment on its declaratory judgment action, which asserted that the statute of limitations barred the defendant's claim. She argues that the trial court erred in ruling that RSA 508:4 (1983) (current version at RSA 508:4 (Supp.1992)), which established a six-year statute of limitations for personal actions, barred her action for underinsured motorist coverage from the plaintiff. For the reasons that follow, we reverse.

On December 6, 1982, the defendant was a passenger in a car owned by and insured in the name of her husband, Henry Walker, and operated by her daughter. She was injured when the car was struck from behind by an automobile operated by Elaine Katsouleris. The Walker vehicle was insured by the plaintiff, providing coverage for uninsured and underinsured losses as required by RSA 264:15. Twenty-five months after the accident, the defendant brought suit by a writ dated January 30, 1985. The tortfeasor, Katsouleris, was insured by Aetna Insurance Company, which tendered its fifty-thousand-dollar policy limit to Walker's attorney. The tender was accepted subject to the plaintiff's consent. On May 3, 1989, defendant's counsel notified the plaintiff for the first time of the claim and sought its consent to accept the policy limit from Aetna. The plaintiff denied coverage on May 24, 1989, maintaining that the statute of limitations on the underinsured claim had expired on December 6, 1988, the sixth anniversary date of the accident. The defendant sought resolution of the dispute through arbitration under the auspices of the American Arbitration Association. On August 14, 1989, the plaintiff notified both the proposed arbitrator and the defendant's counsel that it would not participate in arbitration. On October 30, 1989, the plaintiff instituted the declaratory judgment petition, claiming the statute of limitations as the sole basis for denying coverage.

On March 6, 1990, the plaintiff filed a motion for summary judgment which was denied by the Superior Court (Murphy, J.). On October 23, 1990, the plaintiff filed a renewed motion for summary judgment, alleging that the defendant had failed to furnish the plaintiff with a copy of the underlying writ against Katsouleris. Without a hearing, the Superior Court (Barry, J.) granted summary judgment to the plaintiff on the sole basis that the statute of limitations barred the action, in effect determining that the defendant's ability to bring any action for underinsured motorist benefits expired six years after December 6, 1982. The trial court subsequently denied the defendant's motion for reconsideration. This appeal followed.

The trial court grants motions for summary judgment pursuant to RSA 491:8-a if, after considering all the evidence in the light most favorable to the non-moving party, it finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Brosseau v. Green Acres Mobile Homes, 135 N.H. 643, 647, 609 A.2d 738, 740 (1992).

Both the plaintiff and the defendant agree that the defendant's claim for underinsured motorist benefits is governed by the statute of limitations for personal actions, which at the time of the defendant's accident was six years, see RSA 508:4 (1983), and which was amended to three years for all causes of action arising on or after July 1, 1986, see RSA 508:4 (Supp.1992); see also Annotation, Action "For Injury to Person" in Statutes Relating to Notice or Limitation as Including Actions Ex Contractu, 1 A.L.R. 1313, 1314 (1919) (statute limiting time to sue for "injuries to the person" applicable to all actions, whether based upon contract or tort). The defendant argues, however, that her claim sounds in contract and not in tort and, therefore, that the cause of action accrued only upon a breach of the contract. The plaintiff counters that the statute of limitations and its triggering event are coterminous with the underlying tort action.

Although the statute of limitations for contract and tort actions is the same, we must nevertheless determine the nature of the defendant's claim for underinsured motorist benefits. Whether the claim is one in tort or in contract governs the timing of the event that begins the running of the statute and, in this case, also controls whether the applicable limitation period is three or six years. We agree with the defendant that while the underlying action against the tortfeasor is a tort action, the underinsured coverage claim is based in contract.

"Although a tortious injury is an...