Travelers Indem. Co. v. Stearns
| Decision Date | 29 May 1976 |
| Docket Number | No. 7103,7103 |
| Citation | 116 N.H. 285,358 A.2d 402 |
| Parties | TRAVELERS INDEMNITY COMPANY v. Donald H. STEARNS and Eleanor A. Stearns. |
| Court | New Hampshire Supreme Court |
Wadleigh, Starr, Peters, Dunn & Kohls and Eugene M. Van Loan, III, Manchester, for plaintiff.
Wiggin, Nourie, Sundeen, Pingree & Bigg and William S. Orcutt, Manchester, for defendants.
This is a petition for declaratory judgment brought by the plaintiff, Travelers Indemnity Company, to determine the rights of the parties under uninsured motorist coverage in two policies issued by the plaintiff to Donald H. Stearns. The case was transferred without ruling on an agreed statement of facts by the Trial Court, Mullavey, J.
Mrs. Stearns was injured in Goffstown, New Hampshire on May 13, 1973, when a car operated by Linda Boucher of Manchester struck a vehicle operated by Mr. Stearns propelling it into Mrs. Stearns. Sentry Insurance Company, the insurer of Linda Boucher, has settled with Mr. and Mrs. Stearns for the injuries sustained in the accident paying $20,000, the full amount of coverage on the Boucher vehicle. The settlement was approved by the plaintiff without waiver of its rights to contest coverage under the uninsured motorist provisions of its policies.
The plaintiff's policies of liability insurance on the two cars of Mr. Stearns each contained uninsured motorist coverage in the amount of $50,000 per person and $100,000 per accident. Travelers seeks a declaration that it is not obligated by these policies to furnish uninsured motorist coverage to the defendants for damages in excess of the amount of $20,000 furnished by the negligent operator's insurance since that insurance is equal to the amount specified by the financial responsibility statute. RSA 268:15-a (Supp.1975).
The plaintiff's policies were issued in Massachusetts to Mr. Stearns a Massachusetts resident, for cars garaged in Massachusetts. It follows that the rights and obligations of the parties under the contract are governed by the law of Massachusetts. Fisk v. Atlantic Nat'l Ins. Co., 108 N.H. 353, 236 A.2d 688 (1967); Maryland Cas Co. v. Coman, 106 N.H. 364, 212 A.2d 703 (1965); see Restatement (Second) of Conflict of Laws § 193, Comment c (1971).
The plaintiff's policies with Mr. Stearns provided that the company would pay within the limits of its coverage all sums the insured is entitled to recover as damages from the operator of an 'uninsured automobile'. The policy defines an uninsured automobile as one 'with respect to the ownership, maintenance and use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident . . ..' (Emphasis added). The unambiguous language of the policies appears to restrict the rights of the defendants under the policy to cases involving an automobile with no insurance. Defendants point out that to follow the language of the policy would result in their being able to recover up to the full amount of their policies if the Boucher car had no insurance but nothing where the Boucher car had some insurance. While we agree the language of the policy provides an anomalous result, the clear language of the policy would seem to require it unless the policy is contrary to the Massachusetts statutes which govern. See Forrest v. Hartford Accident and Indemnity Co., 323 N.E.2d 865 (Mass.1975); Charest v. Union Mut. Ins. Co., 113 N.H. 683, 313 A.2d 407 (1973); cf. Carrignan v. Allstate Ins. Co., 108 N.H. 131, 229 A.2d 179 (1967).
On the date of the accident Mass.Gen.Laws ch. 175 § 113L(1) required automobile liability insurance contracts to provide uninsured motorist coverage in the amounts or limits prescribed for Massachusetts automobile insurance. At that time the limits in Massachusetts were $5,000...
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