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Results from search: http://www.aei.brookings.org/publications/abstract.asp?pID=228
Joint Center - Deregulating Property-Liability Insurance: Restoring Competition and Increasing Market Efficiency.
Abstract
Deregulating Property-Liability Insurance: Restoring Competition and Increasing Market Efficiency. J. David Cummins.
Books and Monographs. May 2002.
Full text (418 pages)
Table of Contents
Chapter 1: Property-Liability Insurance Price Deregulation: The Last Bastion? ; J. David Cummins
Chapter 2: Automobile Insurance Regulation: The Massachusetts Experience ; Sharon Tennyson, Mary A. Weiss, and Laureen Regan
Chapter 3: Private Passenger Auto Insurance in New Jersey: A Three-Decade Advertisement for Reform ; John D. Worrall
Comment on Chapters 2 and 3; Richard A. Derrig
Chapter 4: Auto Insurance Reform: Salvation in South Carolina ; Martin F. Grace, Robert W. Klein, and Richard D. Phillips
Chapter 5: Regulation of Automobile Insurance in California ; Dwight M.
Jaffee and Thomas Russell
Comment on Chapter 5; David Appel
Chapter 6: Insurance Price Deregulation: The Illinois Experience ; Stephen P. D'Arcy
Chapter 7: Effects of Prior Approval Rate Regulation of Auto Insurance ; Scott E. Harrington
Comment on Chapter 7; Georges Dionne
Chapter 8: Form Regulation in Commercial Insurance ; Richard J. Butler
Chapter 9: Insurance Regulation in Other Industrial Countries ; Georges Dionne
Index Over the past two decades, the United States has successfully deregulated prices and moved entry barriers in most previously regulated industries, including airlines, trucking, railroads, telecommunications, and banking. Only a few industries remain regulated, one of the largest being the property-liability insurance business. In light of recent sweeping legislation to modernize other sectors of the insurance industry, this timely volume examines the basis for continued regulation of rates and forms of the U.S. property-liability insurance market. The book focuses on private passenger automobile insurance-the most important personal line of property-liability coverage, with annual premiums of about $120 billion. The contributors present five state case studies: California, Massachusetts, and New Jersey-three of the most heavily regulated states-as well as Illinois, which has been deregulated for about 30 years, and South Carolina, which began to deregulate in 1997. The book also includes an econometric analysis based on all 50 states over a 25-year period that gauges the impact of regulation on insurance price levels, price volatility, and the proportion of automobiles insured in residual markets. In addition, it includes an analysis of the welfare effects of commercial lines contract regulation and an overview chapter relating developments in insurance markets to the economic theory of regulation.
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© 2002, AEI-Brookings Joint Center for Regulatory Studies
Results from search: http://www.aei.brookings.org/publications/abstract.asp?pID=228&print=true
Joint Center - Deregulating Property-Liability Insurance: Restoring Competition and Increasing Market Efficiency.
Abstract
Deregulating Property-Liability Insurance: Restoring Competition and Increasing Market Efficiency. J. David Cummins.
Books and Monographs. May 2002.
Full text (418 pages)
Table of Contents
Chapter 1: Property-Liability Insurance Price Deregulation: The Last Bastion? ; J. David Cummins
Chapter 2: Automobile Insurance Regulation: The Massachusetts Experience ; Sharon Tennyson, Mary A. Weiss, and Laureen Regan
Chapter 3: Private Passenger Auto Insurance in New Jersey: A Three-Decade Advertisement for Reform ; John D. Worrall
Comment on Chapters 2 and 3; Richard A. Derrig
Chapter 4: Auto Insurance Reform: Salvation in South Carolina ; Martin F. Grace, Robert W. Klein, and Richard D. Phillips
Chapter 5: Regulation of Automobile Insurance in California ; Dwight M.
Jaffee and Thomas Russell
Comment on Chapter 5; David Appel
Chapter 6: Insurance Price Deregulation: The Illinois Experience ; Stephen P. D'Arcy
Chapter 7: Effects of Prior Approval Rate Regulation of Auto Insurance ; Scott E. Harrington
Comment on Chapter 7; Georges Dionne
Chapter 8: Form Regulation in Commercial Insurance ; Richard J. Butler
Chapter 9: Insurance Regulation in Other Industrial Countries ; Georges Dionne
Index Over the past two decades, the United States has successfully deregulated prices and moved entry barriers in most previously regulated industries, including airlines, trucking, railroads, telecommunications, and banking. Only a few industries remain regulated, one of the largest being the property-liability insurance business. In light of recent sweeping legislation to modernize other sectors of the insurance industry, this timely volume examines the basis for continued regulation of rates and forms of the U.S. property-liability insurance market. The book focuses on private passenger automobile insurance-the most important personal line of property-liability coverage, with annual premiums of about $120 billion. The contributors present five state case studies: California, Massachusetts, and New Jersey-three of the most heavily regulated states-as well as Illinois, which has been deregulated for about 30 years, and South Carolina, which began to deregulate in 1997. The book also includes an econometric analysis based on all 50 states over a 25-year period that gauges the impact of regulation on insurance price levels, price volatility, and the proportion of automobiles insured in residual markets. In addition, it includes an analysis of the welfare effects of commercial lines contract regulation and an overview chapter relating developments in insurance markets to the economic theory of regulation. © 2002, AEI-Brookings Joint Center for Regulatory Studies
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Results from search: http://www.brook.edu/press/books/deregulating_insurance.htm
Deregulating Property-Liability Insurance, J. David
Cummins, ed.
Deregulating Property-Liability Insurance
Restoring Competition and Increasing Market Efficiency
J. David Cummins, ed.
409 pp. / 2002
Paper
0-8157-0243-4 $22.95 / £16.95
Order by Mail, Fax, or Phone!
Table of Contents
Over the past two decades, the United States has successfully
deregulated prices
and restrictions on most previously-regulated industries, including airlines,
trucking, railroads, telecommunications, and banking. Only a few industries
remain regulated, the largest being the property-liability
insurance business.
In light of recent sweeping financial modernization legislation in
other sectors
of the insurance industry, this timely volume examines the basis
for continued
regulation of rates and forms of the U.S. property-liability
insurance market.
The book focuses on private passenger automobile
insurance-the most important
personal line of property-liability coverage, with annual premiums of about
$120 billion. The authors analyze five state case studies:
California, Massachusetts,
and New Jersey-three of the most heavily regulated states-as well
as Illinois, which has been deregulated for about 30 years, and
South Carolina,
which began to deregulate in 1997. The study also includes an
econometric analysis
based on all fifty states over a 25-year period that gauges the
impact of regulation
on insurance price levels, price volatility, and the proportion of
automobiles
insured in residual markets. The authors conclude that regulation
does not significantly
reduce long-run prices for consumers, and generally limits
availability of coverage,
reduces the quality and variety of services available in the market, inhibits
productivity growth, and increases price volatility.
Contributors : Richard J. Butler (Brigham Young University), David Appel (Milliman and Robertson, New York), J. David Cummins (Wharton School, University of Pennsylvania), Stephen D'Arcy (University of Illinois, Urbana-Champaign), Richard Derrig (Automobile Insurers Bureau of Massachusetts), Georges Dionne (École des Hautes Études Commerciales, Montreal), Martin F. Grace (Center for RMI Research, Georgia State University), Scott E. Harrington, (Darla Moore School of Business, University of South Carolina), Dwight M. Jaffee (Haas School of Business, University of California, Berkeley), Robert W. Klein (Center for RMI Research, Georgia State University), Richard D. Phillips (Center for RMI Research, Georgia State University), Laureen Regan (Temple University), Thomas Russell (Leavey School of Business, Santa Clara University), Sharon Tennyson (Cornell University), Mary A. Weiss (Temple University), John D. Worrall (Rutgers University).
J. David Cummins is the Harry J. Loman Professor of Insurance and Risk Management at the Wharton School of the University of Pennsylvania.
An AEI-Brookings Joint Center for Regulatory Studies Book
Economics
AEI-Brookings Joint Center for Regulatory Studies
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Results from search: http://www.eandoinsurance.com/INSURANCEGLOSSARY/
ATTORNEY'S PROFESSIONAL LIABILITY INSURANCE TERMS GLOSSARY DICTIONARY
Welcome to Groveview Insurance Services
ATTORNEY'S PROFESSIONAL LIABILITY INSURANCE
Office location:
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Attorney Specialization - Lawyers who specialize in a particular branch of the law are held to a higher standard of conduct than a general practitioner.
California Policy Cancellation and Non-Renewal - The Cancellation and Non-Renewal Condition found in your policy form states the circumstances under which a policy may be terminated. The reasons for cancellation, the time notices required, the procedures to be followed, and the computation of return premium will all be outlined for your use. After having read the Condition you now turn to the California Amendatory Endorsement regarding policy termination. Here you may find that important parts of the Policy Condition have been deleted or expanded to be brought in line with the California Insurance Code. The point is that you must read both the policy condition and the Amendatory Endorsement to have a clear understanding of your rights and obligations.
Claim - A representative policy definition of Claim is a demand for money upon the insured, including service of suit, or institution of arbitration proceedings against any insured. However, depending on the policy the "Demand" may be defined as written or verbal or may simply be the insureds knowledge of an incident or circumstance that may lead to a claim. In the latter case insureds may be reluctant to report an incident to their carrier fearing a increase in premium or a non-renewal of their policy. However, in my opinion it is better to put your carrier on notice, than have your coverage put in question over a matter you will have to report in any case the next time you fill out an application.
Claims Made Policy - The claims made policy is the vehicle by which nearly all professional liability insurance is made available. Coverage must be in force not only when the claim is made but also when the alleged act, error or omission that results in a claim occurred, or there is no coverage.
Covered Damages - Means a monetary judgment, award or settlement for which the insured is legally liable resulting from the rendering of professional services. However, punitive or exemplary damages, multiplied portion of multiplied damage award, fines, penalties, sanctions, and return of insured's fees. are excluded from coverage.
Covered Defense Costs - Fees charged by any lawyer designated by the insurance carrier and other authorized fees, costs and expenses to investigate, adjust, defend or appeal of the claim against the insured. Claim expenses do not include salary charges or benefits of regular employees
of the insurer or supervisory counsel designated by the insurer.
Coverage for Past Partners or Employees - If an attorney leaves an ongoing firm that maintains its professional liability insurance he or she will still have coverage for his professional services performed on behalf of his old firm. If on the other hand, the old firm dissolves or fails
to maintain a current policy or obtain tail coverage there is no longer any coverage for a subsequent claim.
Deductibles - Deductibles generally apply to both claim expenses and indemnity payments made by the insurance company on behalf of the insured. It is hoped by the insurance company that the presence of a deductible will induce a positive effect on the loss prevention activities of the firm as it would have to share in any loss with the carrier. On the other hand, the insurer would not want to impose so large a deductible that the insured would find it difficult to pay. A higher deductible also has the effect of reducing the premium to the benefit of the insured. Some carriers offer Aggregate Deductibles where there is a maximum per policy year the insured will have to pay regardless of the number of claims. A few carriers have at time offered was is known as First Dollar Defense where the deductible applies only to covered damages but not to defense costs.
Defense and Settlement Procedures - Within policy limits the insurer has a duty to defend claims even if the are "false, groundless or Fraudulent." Any settlement or compromise negotiated by the insurer and acceptable to the claimant requires the consent of the insured. However, if the insured refuses to accept the settlement recommended by the insurance carrier, he is then responsible for any additional damages and claim expenses in excess of the amount the insurer and claimant had previously agreed upon. The selection of defense counsel is made by the insurance carrier. However as a practical matter, most carriers will consider the views of the insured regarding choice of counsel.
Exclusions - Exclusions are an important part of any insurance policy and often determine the choice of one policy over another. Even when exclusions deal with the same subject matter, the treatment may differ significantly from one policy to the next. The exclusions commonly found in attorney's professional liability insurance policies where coverage shall not apply are:
Intentional Dishonest, Fraudulent, Criminal or Malicious Acts - In connection with this exclusion it is important to find out if your policy will provide defense if such a claim is made against you, and secondly, coverage for Innocent Insureds remains in force.
A claim by any insured person or entity against any other insured person or entity - It was never the intended purpose of professional liability insurance to be involved in conflicts within a law firm. Law firms may wish to consider Employment Practices Liability Insurance if their is concern regarding issues of wrongful termination or sexual harassment.
A claim against any insured as the beneficiary or distributee of a trust or estate.
A claim for bodily injury or injury to or destruction of tangible property or resulting loss of use. - However, this exclusion does not apply to personal injury or bodily injury arising from personal injury in the rendering of professional services. Coverage for claims of bodily injury or property damage more properly fall under the Commercial General Liability policy.
Claims arising out of any insured's services or capacity as:
an officer, director, shareholder, partner, manager, trustee, owner or employee of a business enterprise, non-profit organization, charitable organization or pension, welfare, profit-sharing, mutual or investment fund or trust. -These firms or entities should maintain there own professional liability policies or be named on the insured's policy.
Public Officials, or an employee of a governmental body, subdivision or agency.
Continued - These organizations should obtain there own Professional liability insurance, except where a policy exclusion allows a lawyer to provide legal services to public service organization on a fee basis.
A fiduciary under ERISA of 1974 and its amendments or any regulation or order issued issued pursuant thereto, except if an insured is deemed to be a fiduciary solely by reason of legal advise rendered with respect to am employee benefit plan.- Attorneys who are involved in the investment of funds however require separate fiduciary liability coverage.
Discrimination - to any claim based on or arising out of the various forms of
discrimination as defined in the policy.- Depending on the form, this exclusion may
be broadly applied or limited to employment situations. Claims involving
discrimination in employment would properly be covered under Employment
Practices Liability Insurance. Some policies do not contain this exclusion but would
deny a discrimination claim contending that discrimination has nothing
to do with the rendering of professional legal services.
Other Exclusions - A number of other exclusions on a broad range of topics will be found in professional liability policies dealing with everything from investment advice to nuclear energy. You should contact your agent or broker for underwriter clarification should there be any question as to their application with regard to your practice or firm.
Extended Reporting Option - The extended reporting option, also known as tail coverage is available for the attorney who retires from the practice of law. This allows an attorney coverage for claims that are made after the policy has expired. However the claim resulting incident must have occurred before policy the policy expired. The policy limit available for claims is not reinstated and is limited to the available remaining limit. The premium for the ERO is based on the premium for the last policy year. It is a sliding scale based on the number of years tail coverage the attorney thinks is necessary.
Insured Individuals and Entities - The insured as defined in most policies is the Named Insured and any Predecessor Firm. It is extended to include any lawyer or professional corporation who is or was an owner, partner, officer, director, stockholder or employee, but only for professional services rendered on behalf of the Named Insured or Predecessor Firm. Any lawyer or professional corporation designated as "Of Counsel" or independent contractor while acting solely on behalf of the named insured may be covered with the permission of the insurance carrier. Lastly, coverage is provided for the estate, heirs, executors, administrators legal representatives of each Insured in the event of death, incapacity, or bankruptcy but only to the extent that the Insured would have been provided coverage by the policy.
Lapsed Coverage - Once a policy has lapsed for any reason all policy coverage ends regardless of whether or not coverage was in force at the time a claim triggering incident occurred. If at a latter date a new policy is obtained it will be difficult if not impossible to regain the lost prior acts coverage from the new carrier because of the potential moral hazard.
Lawyers Professional Liability Insurance - Insurance is provided in the form of a Claims Made Policy that covers monetary loss and expense of an insured attorney or law firm for legal liability in the rendering of professional services as defined by the policy. The policy also includes coverage for claims of unintended personal injury.
Policy Limits - It important that policy limits are adequate to cover both the cost of Defense and Damages. In choosing a limit the insured must consider any number of factors including size of firm, areas of practice, claims history, case size, and any other circumstance that will help him determine the maximum loss the firm may suffer in a worse case situation. Of course, higher limits increase the policy premium. However, since few claims rise to the level of maximum possible loss the extra charge for higher limits is on a sliding scale and therefore affordable. Policy limits are available on both a Single Limit and on a Per Claim and Aggregate basis. The latter allows for multiple claims up to a per claim limit that the insured has determined adequate for any one claim, and is less expensive than choosing a single limit to cover multiple claims, where no one claim exceeds the per claim limit. In other words, a single limit of $3,000,000 would cost more than a per claim and aggregate limit of $1,000,000/$3,000,000 and would serve no better in the described example. One final thought in choosing an adequate limit is that multiple claims that result from a single or related group of incidents will be considered as one claim under your policy.
Prior Acts Date - policies either contain a Prior Acts Date or are designated as having Full Prior Acts. The prior acts date is usually the same date from which continuous coverage was first obtained by the current or predecessor firm. Claims triggered by events occurring before this date are not insured. If a firm changes insurance carriers, it is important that the same prior acts date appears on the new policy. The Prior Acts date is also referred to as Retroactive Date.
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License #0744056
Results from search: http://www.state.nh.us/courts/supreme/opinions/0201/matar001.htm
Maureen Matarese v. New Hampshire Municipal Association Property-Liability
Insurance Trust, Inc.
NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as
formal revision before publication in the New Hampshire Reports. Readers are requested to
notify the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building,
Concord, New Hampshire 03301, of any errors in order that corrections may be made before
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http://www.state.nh.us/courts/supreme.htm
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 99-480
MAUREEN MATARESE
v.
NEW HAMPSHIRE MUNICIPAL ASSOCIATION PROPERTY-LIABILITY
INSURANCE TRUST, INC.
January 11, 2002
Solomon Professional Association , of Londonderry ( Peter M. Solomon on the
brief and orally), for the plaintiff.
Gallagher, Callahan & Gartrell, P.A. , of Concord ( David A. Garfunkel
on the brief and orally), for the defendant.
BRODERICK, J. The plaintiff, Maureen Matarese, suffered injuries during an automobile
collision with an uninsured motorist while on duty as a police officer. She sought
uninsured motorist coverage from the defendant, the New Hampshire Municipal Association
Property-Liability Insurance Trust, Inc. (Trust), the Town of Londonderry's insurer.
The Superior Court ( Abramson , J.) ruled that the fireman's rule barred her
right of recovery against the Trust. We affirm.
The underlying facts in this case are described in detail in Matarese v. Nationwide
Mutual Insurance Co. , 141 N.H. 311, 311-12 (1996) ( Matarese I ), in which we
held that the fireman's rule barred the plaintiff from recovering uninsured motorist
benefits from Nationwide Mutual Insurance Company (Nationwide), her personal automobile
insurer.
The plaintiff was injured while on duty when her car collided with an uninsured
vehicle. She sought uninsured motorist coverage from both Nationwide and the Trust. The
Trust moved for summary judgment, arguing that the Workers' Compensation Law barred
the claim. The court granted the Trust's motion, stating, "On the state of the
record presented, the plaintiff Matarese was injured while acting within the scope of her
duties as a police officer . . . ." Following a trial, the superior court held that
the fireman's rule, which bars some public safety officers from bringing negligence
suits in certain circumstances, see RSA 507:8-h (1999), also barred the claim for
benefits against Nationwide. The plaintiff appealed both decisions.
Regarding the case against Nationwide, we held that the fireman's rule barred the
plaintiff from pursuing an action against the tortfeasor. See Matarese I ,
141 N.H at 315-16. Although the plaintiff had also argued that even if the fireman's
rule barred an action against the tortfeasor, she was entitled to uninsured motorist
coverage because the language in her Nationwide insurance policy was ambiguous, we
concluded that the ambiguity issue had not been preserved and declined to address it. Id .
at 313. Regarding the case against the Trust, we found the trial court's order
granting the Trust's motion for summary judgment to be ambiguous, declined to rule on
the question of the workers' compensation bar, and remanded the case with
instructions to consider the applicability of the fireman's rule and the
workers' compensation bar, and any other issue raised by the parties' pleadings.
After the case was remanded, we decided Hull v. Town of Plymouth , 143 N.H. 381,
383 (1999), in which we concluded that an automobile insurer is not an "insurance
carrier" within the meaning of the Workers' Compensation Law. Therefore, the
Workers' Compensation Law did not bar an action for underinsured motorist benefits
against an employer's automobile insurer if the underinsured motorist was neither the
insured's employer nor a co-employee. Id . at 385. In light of Hull , the
only issue on remand in the plaintiff's case against the Trust was whether the
plaintiff is entitled to uninsured motorist coverage even though the fireman's rule
barred an action against the tortfeasor. The plaintiff argued that even if the
fireman's rule barred an action against the tortfeasor, she was entitled to uninsured
motorist coverage because the language in the Trust policy was ambiguous. Following a
hearing, the superior court ruled that the fireman's rule barred the plaintiff's
action against the Trust, and this appeal followed. Thus, the issue we declined to decide
on preservation grounds in Matarese I is now squarely before us in this appeal
involving the case against the Trust.
Although the parties have not filed a copy of the applicable insurance policy with this
court, they agree that the language at issue is standard language taken from New
Hampshire's uninsured motorist statute that mandates uninsured motorist coverage in
all motor vehicle policies, so that benefits are available "for the protection of
persons . . . who are legally entitled to recover damages from owners or drivers of
uninsured motor vehicles." RSA 264:15 (1993).
The question on appeal is whether the plaintiff was "legally entitled to
recover" from the driver of the uninsured motor vehicle, given the applicability of
the fireman's rule. The fireman's rule provides:
I. Firefighters, emergency medical technicians (E.M.T.'s), police officers and other
public safety officers shall have no cause of action for injuries arising from
negligent conduct which created the particular occasion for the officer's official
engagement. However, this section does not affect such officer's causes of action for
other negligent conduct or for reckless, wanton or willful acts of misconduct.
II. In this section, "public safety officer" means a person who is exposed to
injury while acting in an official capacity in law enforcement or protection of life or
property.
RSA 507:8-h (1997) (emphasis added). In Matarese I , we concluded that
"[b]ecause the plaintiff suffered her injuries while performing the very service
which [she] is paid to undertake for the citizen's benefit," her right of
recovery against the tortfeasor was barred by the fireman's rule. Matarese I ,
141 N.H. at 315-16 (quotation and citation omitted). Thus, her right of recovery against
her personal automobile insurer, Nationwide, was barred. Id .
In this appeal, the plaintiff contends that despite the application of the
fireman's rule, our decisions in Green Mountain Insurance Co. v. George , 138
N.H. 10 (1993), and Gorman v. National Grange Mutual Insurance Co. , 144 N.H. 157
(1999), "unequivocally establish the Petitioner's contractual right to receive
uninsured motorist benefits." The plaintiff notes that in Green Mountain , we
held that the phrase "legally entitled to recover" contained in the applicable
insurance policy was ambiguous, and construed the ambiguity against the insurer. Green
Mountain , 138 N.H. at 14-15. The plaintiff also points out that we reaffirmed this
holding in Gorman , where we held that because we had determined in Green
Mountain that the phrase "legally entitled to recover" referred to whether
the owner or operator of the uninsured vehicle was at fault, "the insured's
right to recover will depend on her ability to establish fault on the part of the alleged
tortfeasor." Gorman , 144 N.H. at 159 (quotations and brackets omitted). We
agree with the plaintiff that application of the rule set forth in Green Mountain
and Gorman would entitle her to uninsured motorist benefits. Upon reconsideration
of both cases, however, we conclude that the analysis supporting the rule we adopted in Green
Mountain and reapplied in Gorman is legally unsound. Therefore, for the reasons
that follow, we overrule our reasoning, but not our holding, in Green Mountain .
Furthermore, because our decision in Gorman rested on the faulty reasoning we
advanced in Green Mountain , we overrule Gorman and affirm the trial
court's grant of summary judgment to the Trust.
While we recognize the value of stability in legal rules, we have also acknowledged
that "the doctrine of stare decisis is not one to be either rigidly
applied or blindly followed. The stability of the law does not require the continuance of
recognized error." Weeks Restaurant Corp. v. City of Dover , 119 N.H. 541, 544
(1979) (citations, brackets and quotations omitted). "Where a decision has proven
unworkable or badly reasoned . . . we will not hesitate to revisit it." Providence
Mut. Fire Ins. Co. v. Scanlon , 138 N.H. 301, 304 (1994).
At issue in Green Mountain was whether the plaintiffs, New Hampshire residents
who had been injured in a collision in Massachusetts by a Massachusetts resident and were
barred from recovering damages from the tortfeasor under the Massachusetts no-fault
statute, were also barred from collecting uninsured motorist benefits from their own
automobile insurer. Green Mountain , 138 N.H. at 13. In concluding that the
plaintiffs could recover, we stated:
The [plaintiffs] submit that the alternative forms of dispute resolution agreed to by
the parties under this insurance policy are designed to determine matters of fact, such as
who is at fault in a collision and how much the wronged party is entitled to recover from
the party at fault. Under such an interpretation, they argue, the "legally entitled
to recover" phrase refers to whether the owner or operator of the uninsured
automobile was at fault. On the other hand, Green Mountain argues that the phrase refers
only to the [plaintiffs'] entitlement as a matter of law to pursue damages against
the alleged tortfeasor. We find the phrase "legally entitled to recover"
susceptible of both interpretations propounded by the parties and, therefore, hold that it
is ambiguous. Because the [plaintiffs'] interpretation would favor coverage, we must
construe the phrase in favor of [the plaintiffs] and against Green Mountain. . . .
Accordingly, we hold that the [plaintiffs'] right to recover will depend on their
ability to establish fault on the part of the alleged tortfeasor at a subsequent uninsured
motorist arbitration hearing.
Id . at 14-15 (citations omitted). Thus, our decision in Green Mountain
rested upon our conclusion that, given the existence of the alternative forms of dispute
resolution set forth in the contract, the phrase "legally entitled to recover"
in the insurance contract was ambiguous, and should be construed against the insurer. In
light of the fact that the language in the insurance contract was prescribed by statute,
this reasoning was unsound.
"The doctrine that ambiguities in an insurance policy must be construed against
the insurer is rooted in the fact that insurers have superior understanding of the terms
they employ." Hoepp v. Ins. Co. , 142 N.H. 189, 190 (1997)
(quotations omitted). Where the insurer does not choose the language because that language
is prescribed by statute, this rule does not apply. See Pappas Ent. v. Commerce
& Ind. Ins. Co. , 661 N.E.2d 81, 83 (Mass. 1996). Rather, "rules of statutory
interpretation, rather than the contra proferentum rule, ought to apply when the
terms of an insurance contract are dictated by statute, because, in such circumstances,
the real question is or ought to be the intent of the legislature, not the intent of the
parties to a contract in which neither has any real say as to the terms of the
'agreement.'" Terra Industries v. Com. Ins. Co. of America , 981 F.
Supp. 581, 590 (N.D. Iowa 1997); see also Paul Revere Life Ins. Co. v.
Haas , 644 A.2d 1098, 1103 (N.J. 1994); Mut. Auto. Ins. Co. v. Messinger ,
232 Cal. App.3d 508, 519 (1991). Thus, our analysis of the meaning of the phrase
"legally entitled to recover" contained in any uninsured motorist policy must
begin with a consideration of what the legislature intended when it used the phrase in the
uninsured motorist statute.
"In matters of statutory interpretation, this court is the final arbiter of the
intent of the legislature as expressed in the words of a statute considered as a whole. We
look first to the statutory language itself, and where possible, we ascribe the plain and
ordinary meanings to words used." Brewster Academy v. Town of Wolfeboro , 142
N.H. 382, 383-84 (1997) (quotations and citation omitted). "If the language is plain
and unambiguous, we need not look beyond the statute for further indications of
legislative intent." Doggett v. Town of North Hampton , 138 N.H. 744, 746
(1994) (quotation omitted). "We will not place a literal interpretation on a phrase
when doing so removes it from the context of the whole." State v. Johnson , 134
N.H. 570, 576 (1991).
The New Hampshire Uninsured Motorist statute reads, in pertinent part, as follows:
No policy shall be issued under the provisions of RSA 264:14, with respect to a vehicle
registered or principally garaged in this state unless coverage is provided therein or
supplemental thereto at least in amounts or limits prescribed for bodily injury or death
for a liability policy under this chapter, for the protection of persons insured
thereunder who are legally entitled to recover damages from owners or drivers of uninsured
motor vehicles, and hit-and-run vehicles because of bodily injury, sickness or disease,
including death resulting therefrom.
RSA 264:15. The above-quoted language makes clear that the purpose of the uninsured
motorist statute is to ensure that those who have purchased automobile insurance whose
losses would otherwise go uncompensated, either because the tortfeasor lacked liability
coverage or because the tortfeasor's identity was unknown, can receive compensation
for their injuries. See Soule v. Stuyvesant Ins. Co. , 116 N.H. 595, 596-97
(1976) (decided under prior law). Considering the language "legally entitled to
recover" in light of the legislature's intent, as reflected in the language of
the statute, we conclude that it unambiguously imposes a condition precedent to the
insured's right to recover. The insured must be able to prove the liability of the
uninsured motorist in order to recover uninsured motorist benefits under the statute and
the policy.
While we recognize that the reasoning and the rule we set forth in Green Mountain
are flawed, we nevertheless reaffirm its holding on alternative grounds. As the Chief
Justice pointed out in his dissent in Gorman , underlying our decision in Green
Mountain was the recognition that if we had denied uninsured motorist coverage, we
would have effectively adopted Massachusetts no-fault law. Gorman , 144 N.H. at 161
(Brock, C.J., dissenting). "We refused to do so, reasoning that our legislature has
refused to enact no-fault legislation, despite the constitutional ability to do so." Id .
(quotation omitted). In other words, we concluded that recognition of the applicability of
the Massachusetts no-fault bar, which would render the insured not "legally entitled
to recover," would have directly conflicted with New Hampshire public policy. We
reaffirm today that where application of another State's bar would render the insured
not "legally entitled to recover" from the tortfeasor would conflict with New
Hampshire public policy, we will decline to apply the bar and the insured may recover
benefits under the uninsured motorist provisions of his or her insurance policy.
At issue in Gorman , unlike Green Mountain , was whether a New Hampshire
insured was "legally entitled to recover" uninsured motorist benefits when she
was clearly barred by New Hampshire law from suing the tortfeasor. The plaintiff in Gorman
sought to recover uninsured motorist benefits from her personal insurer for injuries
caused by a co-employee in the course and scope of her employment. Gorman , 144 N.H.
at 158. We held that RSA 281-A:8, which states that the plaintiff is conclusively presumed
to have waived her common law rights against her employer and co-employee, did not bar the
plaintiff's action against her own insurance carrier. Id . at 161. In doing so,
we applied Green Mountain and concluded that the phrase "legally entitled to
recover" meant only that the plaintiff was required to prove that the uninsured
motorist was at fault for her injury. Id . at 159-61. In light of our reasoning
today that the phrase "legally entitled to recover" contained in New
Hampshire's uninsured motorist statute and conforming insurance policies is clear and
unambiguous and that the claimant cannot prevail against the insurer if the action against
the uninsured motorist is barred, we must overrule Gorman .
In overruling Gorman , we note that a majority of jurisdictions that have
addressed the issue hold, as Chief Justice Brock suggested in his dissent in Gorman ,
that an insured is not "legally entitled to recover" under the uninsured
motorist provisions of an insurance policy if the exclusivity provisions of the
workers' compensation statute would bar an action against the tortfeasor. See Perkins
v. Insurance Co. of North America , 799 F.2d 955, 958 (5th Cir. 1986) (applying
Mississippi law); Chance v. Farm Bureau Mut. Ins. Co. , 756 F. Supp. 1440, 1442-43
(D. Kan. 1991); Wisman v. Rhodes & Shamblin Stone, Inc. , 447 S.E.2d 5, 8-9 (W.
Va. 1994); Gullett v. Brown , 820 S.W.2d 457, 457 (Ark. 1991); Mut.
Auto. Ins. Co. v. Royston , 817 P.2d 118, 121-22 (Haw. 1991); Mut. Auto.
Ins. Co. v. Webb , 562 N.E.2d 132, 135 (Ohio 1990) (superseded by statute); Cormier
v. Nat. Farmers U. Prop. & Cas. , 445 N.W.2d 644, 647 (N.D. 1989); Aetna Cas.
& Sur. Co. v. Dodson , 367 S.E.2d 505, 508 (Va. 1988); Allstate Ins. Co. v.
Boynton , 486 So. 2d 552, 555-59 (Fla. 1986); Hubbel v. Western Fire Ins. Co. ,
706 P.2d 111, 113-14 (Mont. 1985); cf . Lieber v. ITT Hartford Ins. Center, Inc. ,
15 P.3d 1030, 1035 (Utah 2000); Gardner v. Erie Ins. Co. , 722 A.2d 1041, 1046 n. 12
(Pa. 1999); Medders v. U.S. Fidelity and Guar. Co. , 623 So. 2d 979, 985-89 (Miss.
1993); Berger v. H.P. Hood, Inc. , 624 N.E.2d 947, 950 (Mass. 1993); Cope v. West
American Ins. Co. , 785 P.2d 1050, 1053 (Or. 1990). But see Barfield
v. Barfield , 742 P.2d 1107, 1112 (Okla. 1987); Torres v. Kansas City Fire &
Marine Ins. , 849 P.2d 407 (Okla. 1993).
Most courts reason, as we do today, that the language "legally entitled to
recover" is clear and unambiguous, and that because the insurer stands in the shoes
of the uninsured motorist, the claimant cannot prevail against the insurer if the action
against the uninsured motorist is barred. See , e.g. , Wisman , 447
S.E.2d at 7-8; Royston , 817 P.2d at 121; Webb , 562 N.E.2d at 134-35; Cormier ,
145 N.W.2d at 646-47; Dodson , 367 S.E.2d at 508; Boynton , 486 So. 2d at
557-59. Some courts also reason that the purpose of the uninsured motorist statute is to
protect insureds from financially irresponsible motorists. That purpose is fulfilled by
placing the insured in the same position as if the uninsured motorist had been insured,
not a better position. See , e.g. , Perkins , 799 F.2d at 959; Medders ,
623 So. 2d at 987; Cormier , 445 N.W.2d at 648; Boynton , 486 So. 2d at 557; Hubbell ,
706 P.2d at 113. Other courts recognize that "[t]here is no reason why carriers
should be refused the right to assert the very same rights and defenses available to the
person whose alleged negligence they are required to indemnify." Webb , 562
N.E.2d at 135.
As we have explained, the rule we announced in Green Mountain and applied again
in Gorman , that an insured is "legally entitled to recover" under the
uninsured motorist provision of her own insurance policy upon proof that the alleged
tortfeasor was at fault regardless of any statutory bar to recovery, was badly reasoned.
Such a rule contorts the statutory language to mean "legally entitled to recover
damages from the alleged tortfeasor but for the fact that the insured is statutorily
barred from suing the alleged tortfeasor." Furthermore, the Gorman rule that
the application of the statutory bar creates the uninsured motorist will often require an
insurer to provide compensation to an insured despite the fact that the tortfeasor's
insurance company would be entitled to assert the statutory bar as a defense. The insurer
would therefore be unable to benefit from its statutory subrogation rights. See RSA
264:15, IV (Supp. 2001). Thus, we decline to apply the doctrine of stare decisis
and hold that the phrase "legally entitled to recover," as used in the New
Hampshire Uninsured Motorist statute, see RSA 264:15, and the uninsured motorist
provision of a conforming insurance policy, does not encompass claims as to which the
uninsured tortfeasor is immune from liability by reason of the Workers' Compensation
Law.
Applying these principles to the case at bar, we conclude that because the
fireman's rule applies and the plaintiff has no cause of action against the
tortfeasor and, therefore, the plaintiff is not "legally entitled to recover"
damages from the uninsured motorist, she has no cause of action against the Trust for
uninsured motorist benefits. See York v. Fire & Cas. Co. , 414
N.E.2d 423, 425 (Ohio 1980). As we have noted, New Hampshire's uninsured motorist
statute is designed to compensate people injured in automobile accidents whose losses
would otherwise be uncompensated because the tortfeasor lacked liability coverage or
because the tortfeasor's identity was unknown. See Soule , 116 N.H. at
596. The underlying purpose of the statute is to provide coverage only where there is a
lack of liability insurance on the part of the tortfeasor and the tortfeasor would be
legally liable to the injured driver in a tort action; it does not provide coverage in all
situations that might go uncompensated. The insurance policy and the statute do not apply
where the substantive laws of New Hampshire, such as the fireman's rule and the
workers' compensation bar, render the tortfeasor immune from liability. See York ,
414 N.E.2d at 425.
For the foregoing reasons, we overrule Gorman and affirm the trial court's
grant of summary judgment to the Trust.
Affirmed .
BROCK, C.J., sat for oral argument but did not take part in the final vote; DALIANIS,
J., concurred; NADEAU, J., dissented.
NADEAU, J., dissenting. The majority approaches the interpretation of the phrase
"legally entitled to recover" as a problem in semantics. I believe that to
understand the meaning of this phrase in light of a statutory immunity, such as the
fireman's rule, we should balance the public policies underlying the uninsured
motorist statute and the particular immunity at issue. See 1 A. Widiss, Uninsured
and Underinsured Motorist Insurance § 7.14, at 389 (Rev. 2d ed. 1999). It is
preferable "to decide whether there is a persuasive reason why the existence of an
immunity from tort liability for the uninsured motorist should mean that the insurer will
not be liable under the uninsured motorist policy." Id .
"The purpose of the [uninsured motorist] statute is to protect policy holders
against losses caused by irresponsible automobile drivers with insufficient insurance
coverage to pay for the insured's injuries." Wyatt v. Maryland Cas. Co. ,
144 N.H. 234, 239 (1999) (quotation omitted). The statute "is designed to compensate
persons in automobile accidents from losses which would otherwise go uncompensated because
of the tort-feasor's lack of liability coverage or because of the tort-feasor's
unknown identity." Soule v. Stuyvesant Ins. Co. , 116 N.H. 595, 596 (1976). The
underlying purpose of the statute, therefore, is to compensate the insured, not to protect
the insurer's right to subrogation from the tortfeasor.
It is entirely consistent with this public policy to permit the plaintiff police
officer to recover uninsured motorist benefits from the town's insurer. The
plaintiff was injured as a result of the negligence of an individual who could not
compensate her because the individual lacked insurance. This is precisely the type of
injury that the uninsured motorist statute is designed to address.
The fireman's rule is intended to encourage members of the public to request
assistance from public safety officers without fear of incurring liability for doing so. Akerley
v. Hartford Ins. Group , 136 N.H. 433, 437 (1992). The rule reflects the fundamental
unfairness in asking "the citizen to compensate public safety officers, already
engaged at taxpayer expense, a second time for injuries sustained while performing the
very service which they are paid to undertake for the citizen's benefit." Id .
(quotation, ellipsis and brackets omitted). "The rule supports the principle that societal
responsibility is a better, surer, and fairer recourse for a public officer or fireman
injured in the line of duty than the possibility of tort recovery." Id .
(emphasis added).
It is also entirely consistent with the fireman's rule to permit the
plaintiff to recover uninsured motorist benefits from the town's insurer. Permitting
her to recover these benefits would not discourage members of the public from requesting
help from public safety officers and would enable the town to fulfill its "societal
responsibility" to provide a "better, surer, and fairer recourse" for her.
Thus, I would permit the plaintiff to recover uninsured motorist benefits even though
she could not have recovered directly from the uninsured tortfeasor in a negligence action
because of a policy consideration which is not advanced by denying recovery in this case.
This result is consistent with numerous cases from other jurisdictions. See , e.g. ,
Auto. Ins. Co. v. Baldwin , 470 So. 2d 1230 (Ala. 1985) (although
uninsured tortfeasor could have relied upon statutory immunity as a defense, given
legislative policy behind uninsured motorist statute, defense is unavailable to insurer); Borjas
v. Mut. Auto. Ins. Co. , 33 P.3d 1265 (Colo. Ct. App. 2001) (insured may
recover uninsured motorist benefits even though police officer who caused injuries was
immune from liability under Colorado Governmental Immunity Act); Watkins v. United
States , 462 F. Supp. 980 (S.D. Ga. 1977) (widow of serviceman killed when motorcycle
collided with bus driven by government employee may recover uninsured motorist benefits
even though Federal Drivers Act precluded recovery from bus driver), aff'd per
curiam , 587 F.2d 279 (5th Cir. 1979); Williams v. Holsclaw , 495 S.E.2d 166
(N.C. Ct. App.) (plaintiff's uninsured motorist carrier could not raise defense of
sovereign and public officer immunity; barring compensation to motorists based solely upon
fortuity of being rear-ended by a municipal vehicle is contrary to the remedial purpose of
the uninsured motorist statute and does not advance rationale supporting sovereign
immunity doctrine), aff'd per curiam , 504 S.E.2d 784 (N.C. 1998).
The majority's reliance upon York v. Fire & Casualty Co. ,
414 N.E.2d 423 (Ohio 1980), is misplaced. In York , the tortfeasor was a firefighter
who was insured under the city's policy. When the injured parties sought
compensation from the city's insurer, the insurer denied coverage because the city
was immune from liability. The court ruled that the insurer could use the city's immunity
as a defense because to do so would uphold the policy underlying the uninsured
motorist statute. As the court explained, "The uninsured motorist coverage is to
apply only in those situations in which the 'lack of liability insurance' is the
reason the claim goes uncompensated, and not when the claim goes uncompensated because of
the lack of liability due to the substantive laws of [the state]." Id . at 425.
I believe that the majority also errs by implying that the exclusivity provisions of
the Workers' Compensation Law and the tort immunity provided by the fireman's
rule are analogous. While the fireman's rule precludes an insured from receiving any
redress for his or her injuries, the exclusivity provisions of the Workers'
Compensation Law do not. See , e.g. , Allstate Ins. Co. v. Wyman , 807
F. Supp. 98, 100 (D. Haw. 1992) (barring recovery of uninsured motorist benefits for
injury compensable by workers' compensation reinforces "legislative choice to
substitute workers' compensation benefits for tort remedies" and prohibits
injured party from receiving double recovery, while barring receipt of benefits in context
of interspousal immunity neither furthers Hawaii public policy nor results in double
recovery); Perkins v. Insurance Co. of North America , 799 F.2d 955, 961 (5th Cir.
1986) (construing Mississippi law) (distinguishing cases involving tort immunities because
they involve complete denial of recovery, while under workers' compensation act,
injured party entitled to recover workers' compensation benefits); Cormier v. Nat.
Farmers U. Prop. & Cas. , 445 N.W.2d 644, 647-48 (N.D. 1989) (distinguishing cases
based upon interspousal tort immunity because that immunity deprives injured party of any
claim whatsoever, while plaintiff with injury compensable by workers' compensation
act may seek redress for injuries under act).
I do not believe that we should treat all substantive defenses that could be asserted
by the uninsured tortfeasor alike or adopt a uniform rule that permits the insurer to
assert any such defense to bar a plaintiff's recovery of uninsured motorist benefits.
Rather, I believe that we should weigh the policy and goals of the defense against those
of the uninsured motorist statute to determine whether permitting the insurer to assert
the defense, in the context of a specific case, would be consistent with these policies
and goals.
Because I believe preventing recovery in this case by allowing the insurer to
assert the fireman's rule as a defense is inconsistent with the legitimate public policies
and goals behind the uninsured motorist statute, respectfully, I dissent.
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