Soule v. Stuyvesant Ins. Co.
| Decision Date | 30 September 1976 |
| Docket Number | No. 7469,7469 |
| Citation | 116 N.H. 595,364 A.2d 883 |
| Parties | George SOULE v. STUYVESANT INSURANCE COMPANY. |
| Court | New Hampshire Supreme Court |
Craig, Wenners, Craig & McDowell, Manchester (Joseph F. McDowell, III, Manchester, orally) for plaintiff.
Augustine J. McDonough and John P. Shea, Manchester, for defendant.
This is a petition for declaratory judgment seeking the benefits of uninsured motorist coverage in a policy issued by the defendant for a nonphysical contact accident with an unknown car. The Trial Court (Cann, J.) granted defendant's motion to dismiss and reserved and transferred plaintiff's exception.
According to the agreed statement of facts, on July 30, 1973, plaintiff was riding his motorcycle southerly on Mammoth Road in Hooksett approaching the road's intersection with Hale Avenue. Plaintiff alleges that an automobile made a left-hand turn into Mammoth Road forcing him to swerve his motorcycle to avoid a collision. The motorcycle tipped over causing personal injuries to the plaintiff. The automobile continued on without stopping and the identity of the driver and the vehicle are unknown. Plaintiff also alleges that a disinterested witness observed the accident.
The defendant denied uninsured motorist coverage because of a provision in the plaintiff's insurance policy which defines a 'hit-and-run automobile' as 'an automobile which causes bodily injury to an insured arising out of physical contact with the insured or with an automobile which insured is occupying at the time of the accident.' (Emphasis added.) Because the parties agree there was no physical contact in the accident in this case, the unambiguous terms of the policy preclude any claim by the plaintiff unless the policy terms provide less coverage than that required by RSA 268:15-a (Supp.1975). Charest v. Union Mut. Ins. Co., 113 N.H. 683, 686, 313 A.2d 407, 409 (1973).
The plaintiff argues that the defendant's limitation of its liability in hit-and-run cases by a requirement of physical contact is an unreasonable restriction of the compulsory coverage mandated by RSA 268:15-a (Supp.1975), which provides in pertinent part as follows: 'No policy shall be issued or delivered in this state . . . with respect to a motor vehicle . . . registered in this state unless coverage is provided therein . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners and operators of uninsured motor vehicles . . . and his-and-run motor vehicles . . . because of bodily injury, sickness or disease, including death resulting therefrom.' For the reasons that follow, we have concluded that the contention of the plaintiff should prevail.
The compulsory uninsured motorist protection required by RSA 268:15-a (Supp.1975) is designed to compensate persons in automobile accidents from losses which would otherwise go uncompensated because of the tortfeasor's lack of liability coverage or because of the tortfeasor's unknown identity. Gay v. Preferred Risk Mut. Ins. Co., 114 N.H. 11, 314 A.2d 644 (1974); Charest v. Union Mut. Ins., 113 N.H. 683, 313 A.2d 407 (1973); Raitt v. National Grange Mut. Ins. Co., 111 N.H. 397, 285 A.2d 799 (1971). Policy provisions designed to reduce the coverage to less than that prescribed by the express or implied provisions of the statute are void. Peerless Ins. Co. v. Vigue, 115 N.H. 492, 345 A.2d 399 (1975).
The New Hampshire Legislature chose not to insert a physical contact requirement into RSA 268:15-a (Supp.1975) as has been done in some jurisdictions. See Annot., 25 A.L.R.3d 1299, § 3(a) (1969). Instead our statute mandates compulsory coverage to 'all persons who are legally entitled to recover damages' from uninisured motorists and hit-and-run drivers. The statute thus extends coverage to all accident caused by uninsured motorists or hit-and-run motorists without any requirement of physical contact. It follows that defendant's policy requirement of physical contact is an impermissible restriction of coverage unless the phrase 'hit-and-run' itself limits coverage to cases involving physical contact.
The defendant urges us to adopt an interpretation of the statute that ascribes to the phrase 'hit-and-run' an intention to limit required statutory coverage to accidents involving physical contact with 'hit-and-run' automobi...
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