Raudonis v. Insurance Co. of North America

• Decision Date: 13 April 1993
• Docket Number: No. 92-169,92-169
• Parties: Frances Colburn RAUDONIS, Guardian of Mary Cilley v. INSURANCE COMPANY OF NORTH AMERICA.
• Court: New Hampshire Supreme Court

Page 746

623 A.2d 746

137 N.H. 57

Frances Colburn RAUDONIS, Guardian of Mary Cilley v. INSURANCE COMPANY OF NORTH AMERICA.

No. 92-169.

Supreme Court of New Hampshire.

April 13, 1993.

Law Offices of Joseph F. McDowell, III, P.A., Manchester (Joseph F. McDowell, III, on the brief and orally), for plaintiff.

Chamberlain and Connor, Manchester (Ellen J. Shemitz, on the brief and orally), for intervenor Moore Center Services, Inc.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Theodore Wadleigh, on the brief and orally), for defendant.

BROCK, Chief Justice.

The plaintiff, Frances Colburn Raudonis, guardian of Mary Cilley, appeals from an order of the Superior Court (Hampsey, J.) denying underinsured motorist coverage to Mary Cilley under a policy held by the intervenor, Moore Center Services, Inc. (the Moore Center). For the reasons that follow, we affirm.

On November 15, 1988, Mary Cilley was struck by an automobile and severely injured while crossing the street. The driver of the automobile was underinsured. At the time of the accident Mary Cilley was a resident of a group home operated by the Moore Center. The Moore Center is a non-profit organization providing care and education for developmentally disabled individuals. Mary Cilley's mother, Frances Colburn Raudonis, was and is her legal guardian.

The plaintiff filed a declaratory judgment action to determine whether the underinsured motorist coverage held by the Moore Center covered the injuries received by Mary Cilley. The trial court found that endorsement CA 01 11 01 87 of the policy unambiguously defines who is an insured for the purposes of underinsured motorist coverage. The endorsement defines the term "insured" as:

"1. You and, if you are an individual, any 'family member.'

2. A private chauffeur or domestic servant, while engaged in employment by you or your spouse.

3. Anyone else 'occupying' an 'insured motor vehicle' or a temporary substitute for an 'insured motor vehicle.' The 'insured motor vehicle' must be out of service because of its breakdown, repair, servicing, loss or destruction.

4. Anyone for damages he or she is entitled to recover because of 'bodily injury' sustained by another 'insured.' "

Because none of these definitions applied to Mary Cilley, the trial court found no coverage under the policy. The plaintiff raises several arguments on appeal.

In reviewing the trial court's decision on appeal, we note that the interpretation of the insurance policy language is ultimately a question of law for this court to decide. Laconia Rod & Gun Club v. Hartford Acc. & Indemn. Co., 123 N.H. 179, 182, 459 A.2d 249, 250 (1983). "We construe the language of an insurance policy as would a reasonable person in the position of the insured based on a more than casual reading of the policy as a whole." Niedzielski v. St. Paul Fire & Marine Ins. Co., 134 N.H. 141, 146, 589 A.2d 130, 133 (1991) (quotations omitted). We will review the trial court's findings of fact, however, with the appropriate deference and will not disturb such findings unless they are "lacking in evidential support or tainted by error of law." Gelinas v. Metropolitan Prop. & Liability Ins. Co., 131 N.H. 154, 160-61, 551 A.2d 962, 966 (1988) (quotation omitted).

The plaintiff first argues that the trial court erred because it failed to consider one of the policy's uninsured motorist endorsements, endorsement CA 2X 17. The plaintiff contends that the language of this endorsement, defining the policy's insured as "[y]ou or any family member," provides uninsured motorist coverage for Mary Cilley as a "family member" of the Moore Center. Endorsement CA 2X 17 expired prior to Mary Cilley's accident and was replaced by the endorsement relied upon by the trial court in denying coverage. Nevertheless, the plaintiff argues that endorsement CA 2X 17 should be considered part of the policy because the multiple endorsements created an ambiguity with respect to who was eligible for uninsured motorist benefits under the policy, and because the Moore Center was never notified by the defendant about the alleged changes in coverage that resulted when endorsement CA 2X 17 was replaced with CA 01 11 01 87. We disagree.

There is no dispute that endorsement CA 2X 17 expired almost three months before the accident and was replaced by endorsement CA 01 11 01 87 when the Moore Center's coverage was renewed for the following year. This change created no ambiguity within the policy. The forms and endorsements that constituted the policy in effect on the date of the accident were clearly cataloged in the policy. We agree with the trial court's determination that endorsement CA 01 11 01 87 defines who is an insured for the purposes of this case, and do not believe that endorsement CA 2X 17, simply by its very existence, creates an ambiguity within the policy.

The plaintiff's claim that endorsement CA 2X 17 should be considered part of the policy because the Moore Center was never notified about a change in coverage is a statutory claim grounded in RSA 412:2-c (1991). Because this issue was neither raised below nor properly preserved for consideration on appeal, we will not address it. See Appeal of Bosselait, 130 N.H. 604, 606-07, 547 A.2d 682, 685-86 (1988), cert. denied, 488 U.S. 1011, 109 S.Ct. 797, 102 L.Ed.2d 788 (1989). The plaintiff makes no reference to RSA 412:2-c in either her notice of appeal or the record of proceedings below. A passing reference to this statute was first made in the plaintiff's brief before this court and was only pursued in earnest at oral argument. The plaintiff does mention the issue of notice as part of an argument involving the Moore Center's reasonable expectations of coverage, which we will address below, but this can hardly be construed as the initiation of a distinct statutory claim. Where a statutory claim is not properly raised below so as to "put the tribunal on notice that it should address the factual as well as legal issues peculiar to such a ... claim," we will not review the claim on appeal. Id.; see Perron v. City of Somersworth, 131 N.H. 303, 305, 553 A.2d 283, 284 (1988).

We conclude that the trial court properly disregarded endorsement CA 2X 17 in determining whether Mary Cilley was an insured under the Moore Center's uninsured motorist coverage. Because endorsement CA 2X 17 is not relevant to this case, we need not decide whether Mary Cilley is a "family member" of a corporation, the Moore Center, for the purposes of uninsured motorist coverage.

The plaintiff's next claim of...