Argued: February 19, 2015.
[Copyrighted Material Omitted]
Hillsborough -- northern judicial district
McDowell & Osburn, P.A., of Manchester ( Gordon A. Rehnborg, Jr. on the brief and orally), for the petitioner.
Morrison Mahoney, LLP, of Boston, Massachusetts ( Kevin Truland on the brief and orally), for respondent The Commerce Insurance Company.
Devine, Millimet & Branch, P.A., of Manchester ( Donald L. Smith on the brief and orally), for respondent Foremost Insurance Company.
Getman, Schulthess & Steere, P.A., of Manchester ( Naomi L. Getman on the brief and orally), for respondent Progressive Northern Insurance Company.
DALIANIS, C.J. CONBOY, LYNN, and BASSETT, JJ., concurred.
Respondent The Commerce Insurance Company (Commerce) appeals, and the petitioner, Terry Ann Bartlett, cross-appeals, an order of the Superior Court ( Garfunkel , J. ) partially granting and partially denying the petitioner's summary judgment motion, denying Commerce's cross-motion for summary judgment, and granting cross-motions for summary judgment filed bye respondents Foremost Insurance Company (Foremost) and Progressive Northern Insurance Company (Progressive). We affirm in part, reverse in part, and remand.
The trial court recited the following facts. The petitioner was injured in a motor vehicle accident in New York in August 2004, when the motorcycle on which she was a passenger, which Jeffrey Vilagos owned and operated, was struck by a motor vehicle operated by Myroslaw Mykijewycz. Mykijewycz is insured by Allstate Insurance Company (Allstate) under a policy that provides liability insurance coverage up to $100,000 per person. Vilagos's motorcycle, which is registered and garaged in New Jersey, is insured by Foremost. The Foremost policy was issued in New Jersey and provides uninsured/underinsured motorist (UIM) coverage up to $250,000 per person.
The petitioner also owns a motorcycle, which is registered and garaged in New Hampshire, and which is insured by Progressive under a policy that also provides UIM coverage up to $250,000 per person. The petitioner's other vehicles, which are both registered and garaged in New Hampshire, are insured by Commerce under a policy that provides UIM coverage up to $250,000 per person (the Commerce Auto policy). The petitioner's home is also insured by Commerce under a policy that contains a personal umbrella endorsement that provides $1,000,000 of single limited UIM coverage (the Commerce Umbrella policy).
In September 2004, the petitioner's New York attorney requested coverage information from Foremost, which Foremost provided. In April 2005, the petitioner's attorney informed Progressive and Commerce that the petitioner intended to pursue UIM claims.
On March 25, 2009, Allstate offered its policy limit ($100,000) to the petitioner. On March 27, the petitioner's attorney notified Foremost, Progressive, and Commerce of this fact and advised the insurers that, pursuant to New York law, they were " either required to grant [the petitioner] permission to collect" the $100,000 from the Allstate policy " or to pay [her] [that] amount] within thirty (30) days." However, the New York law to which the attorney referred did not govern any of the insurers. Only Commerce responded to the petitioner's attorney, granting the petitioner permission to settle with Allstate.
The petitioner released Allstate from liability on April 14. The release was delivered to Allstate on April 28, and, on July 2, the petitioner received $100,000 from Allstate.
The petitioner sued Foremost, Progressive, and Commerce in New York in January 2011, more than six years after the accident. That lawsuit was eventually dismissed. While the insurers' motions to dismiss were pending, the petitioner filed the instant petition for declaratory judgment. She moved, and the insurers cross-moved, for summary judgment.
In its order, the trial court first observed that the parties do not dispute that: (1) each insurance policy provides UIM coverage; (2) the accident and the petitioner's injuries fall within the UIM provisions of each policy; (3) Foremost is the primary insurer, Progressive and Commerce (through the Auto policy) are the " excess" or secondary insurers, and Commerce (through the Umbrella policy) provides umbrella coverage; (4) if all policies are available to the petitioner, she must exhaust each layer of coverage before a subsequent layer of coverage is triggered; and (5) each insurer required to provide coverage is entitled to a credit to be determined according to the formula articulated in Ellis v. Royal Insurance Co., 129 N.H. 326, 338-39, 530 A.2d 303 (1987).
The trial court then addressed the claims involving each insurer in turn. The court decided that the petitioner could not proceed against Foremost because her petition for declaratory judgment was untimely pursuant to the New Jersey statute of limitations for UIM claims, which, the court determined, applied. The court concluded that, even though Commerce was an excess insurer in this case, it was required to " drop down" and provide primary coverage to the petitioner ( e.g., provide coverage for her first $250,000 of damages). The court determined that Progressive, the other excess insurer, was not required to " drop down" to provide primary coverage. With regard to Progressive's obligation to provide excess insurance coverage, the trial court, in response to Progressive's motion for partial reconsideration, determined that the petitioner forfeited her coverage when she settled with Allstate without Progressive's prior consent. Finally, the court determined that Commerce, pursuant to the Umbrella policy, was required to provide coverage once the petitioner's damages exceed the limits of all underlying or primary coverage that is actually available.
In reviewing a trial court's summary judgment rulings, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Rivera v. Liberty Mut. Fire Ins. Co., 163 N.H. 603, 606, 44 A.3d 498 (2012). Summary judgment may be granted only when no genuine issue of material fact is present and the moving party is entitled to judgment as a matter of law. Id. We review the trial court's application of the law to the facts de novo. Id.
We first address whether the trial court erred when it determined that the petitioner's claim for UIM coverage under the Foremost policy was governed by the New Jersey statute of limitations for UIM claims. New Jersey has a six-year statute of limitations for UIM claims that begins to run from the date of the accident. Price v. New Jersey Mfrs. Ins. Co., 182 N.J. 519, 867 A.2d 1181, 1184 (N.J. 2005). By contrast, in New Hampshire, the statute of limitations for UIM claims is three years, see RSA ...