Warner v. Clarendon Ins. Co.

• Decision Date: 02 November 2006
• Docket Number: No. 2005–415.,2005–415.
• Citation: 154 N.H. 331,910 A.2d 1171
• Court: New Hampshire Supreme Court
• Parties: Lynn WARNER v. CLARENDON INSURANCE COMPANY.

154 N.H. 331

910 A.2d 1171

Lynn WARNER

v.CLARENDON INSURANCE COMPANY.

No. 2005–415.

Supreme Court of New Hampshire.

Argued: May 11, 2006.

Opinion Issued: Nov. 2, 2006.

Cleveland, Waters and Bass, P.A., of Concord (Mark D. Wiseman on the brief and orally), for the plaintiff.

Mallory & Friedman PLLC, of Concord (Mark L. Mallory on the brief) and Sugarman, Rogers, Barshak & Cohen, P.C., of Boston, Massachusetts (Edward J. Barshak on the brief and orally), for the defendant.

BRODERICK, C.J.

The plaintiff, Lynn Warner, appeals an order of the Superior Court (Mohl, J.) granting a declaratory judgment in favor of Clarendon Insurance Company (Clarendon). We affirm.

In September 1999, Jennifer Corlett, a Maine resident, leased a truck owned by Ryder TRS, Inc. (Ryder) from its rental agency in Idaho. Corlett executed a rental agreement for the vehicle which listed Scott E. Brown as an additional driver. Paragraph 10A of the agreement provided:

If there is no violation of a use restriction (paragraph 2), Ryder TRS provides protection for bodily injury (including death) and property damage resulting from use or operation of the Vehicle, limited as follows: Ryder TRS' protection does not apply until after exhaustion of all insurance and/or other protection available to the driver of the Vehicle and/or any injured passenger in the Vehicle (automobile liability insurance, no fault insurance, personal injury protection, employer's insurance and/or any other protection or indemnification, whether primary, excess, or contingent), and then Ryder TRS' protection applies only to the extent it is needed to meet, on a cumulative basis with all such insurance and/or other protection available to the driver and/or injured passenger(s), the minimum financial responsibility limits and/or minimum no fault benefits required by applicable law.... To the extent applicable law requires that Ryder TRS provide protection other than as described above, it will not exceed the minimum financial responsibility limits and/or minimum no fault benefits. "Minimum financial responsibility limits," as used in this Agreement, refer to the minimum amount of protection that is required to establish financial responsibility under applicable law. TO THE EXTENT PERMITTED BY APPLICABLE STATE LAW, ANY AUTOMOBILE LIABILITY COVERAGE PROVIDED UNDER THE LIABILITY PROTECTION PLAN WILL BE EXCESS OVER ANY VALID AND

COLLECTIBLE INSURANCE OTHERWISE AVAILABLE TO ME OR ANY PERMISSIVE USER, UNLESS OTHERWISE INDICATED ON THE RENTAL INFORMATION SHEET.

Approximately a week later, while driving the rented Ryder truck through Hopkinton, New Hampshire, en route to Maine, Brown fell asleep at the wheel, crossed the center line and struck the automobile Warner was driving.

At the time of the accident, Ryder was covered by an insurance policy issued by the now insolvent Frontier Insurance Company (Frontier) that included business auto coverage. That policy covered Corlett and Brown as permissive users of a Ryder vehicle. Clarendon is Frontier's reinsurer.

Ryder's policy provides $2 million in liability coverage. It includes two endorsements, STAR–2 and STAR–3, that amend the "Other Insurance" subpart of the policy's "General Conditions." STAR–2 recites: "The coverage provided by this policy is primary insurance with respect to the ‘rentee’ or driver as an ‘insured’ under an ‘auto’ rental contract, but only with respect to the limit of insurance required under the Financial Responsibility law for the state in which the ‘auto’ is rented." STAR–3 provides: "It is agreed that the coverage provided by this policy is primary insurance with respect to the ‘rentee’ or driver as an ‘insured’ under an ‘auto’ rental contract." The policy includes another endorsement, STAR–7, that amends the "Coverage" part of the "Liability Coverage" section. STAR–7 states: "The insurance coverage provided by this policy to a ‘rentee’ is subject to the terms, conditions, restrictions, and limitations contained in the rental agreement between [Ryder] and such ‘rentee.’ "

After the accident, Warner corresponded with Frontier's third-party administrator, Murdock Claim Management Corporation (Murdock), to determine the amount of coverage available to Corlett and Brown under the policy. Murdock offered Warner $25,000, which it said was the amount of liability coverage required by the financial responsibility statutes in both Idaho and New Hampshire. In rejecting Warner's contention that Corlett and Brown were entitled to coverage up to the $2 million policy limit, Murdock cited STAR–2 which, according to Murdock, limited coverage "to the limit of insurance required under the Financial Responsibility law for the state in which the ‘auto’ is rented." Murdock rejected Warner's argument that STAR–2 and STAR–3, when read together, rendered the policy ambiguous.

Warner filed a petition for a declaratory judgment in the superior court, contending that a contradiction existed between STAR–2 and STAR–3 which created an ambiguity that Warner claimed should be construed against Clarendon, with the result that Corlett and Brown would each be entitled to up to $2 million in coverage. Clarendon filed an answer and counterclaim, asking the trial court to declare that its coverage was limited to $25,000 under STAR–7, because this was the financial responsibility limit in New Hampshire, Idaho and Maine. Both parties moved for summary judgment. The trial court denied Warner's motion and granted Clarendon's, ruling that the coverage available from Clarendon was $25,000, and that Clarendon's coverage was in excess of any other insurance available to Corlett and Brown that cumulatively equaled that amount.

On appeal, Warner argues that the trial court erred by: (1) ruling that Clarendon's coverage of Brown and Corlett was limited to $25,000 rather than the $2 million policy limit; (2) ruling that STAR–7 is unambiguous and consistent with applicable financial responsibility law; and (3) failing to apply the financial responsibility law of Florida, Ryder's home state.

"We review the trial court's application of the law to the facts de novo. " Handley v. Providence Mut. Fire Ins. Co., 153 N.H. 340, 341, 898 A.2d 492 (2006).

We need not decide whether the asserted contradiction exists between STAR–2 and STAR–3 and, if so, whether it creates an ambiguity that must be construed against Clarendon. Even if such an...