Argued: September 14, 2017
Boynton, Waldron, Doleac, Woodman & Scott, P.A., of
Portsmouth (Francis X. Quinn, Jr. on the brief and orally),
and McDowell & Osburn, P.A. of Manchester (Gordon A.
Rehnborg, Jr. on the brief), for the plaintiff.
Primmer Piper Eggleston & Cramer PC, of Manchester (Gary
M. Burt and Brendan D. O'Brien on the brief, and Mr. Burt
orally), for the defendant.
defendant, Allstate Insurance Company, appeals an order of
the Superior Court (Colburn, J.) granting the motion
for partial summary judgment filed by the plaintiff, Joseph
Rizzo, and denying the cross-motion for partial summary
judgment filed by Allstate. Rizzo alleged he was injured in
an automobile accident while a passenger in a car insured by
Allstate. Rizzo sought uninsured motorist coverage under the
Allstate policy, and, after Allstate denied his claim, the
claim went to arbitration. The uninsured motorist provision
in the Allstate policy provides that if the arbitration award
exceeds $25, 000, the financial responsibility limits in New
Hampshire, see RSA 259:61, I (2014), the insured and
Allstate have the right to elect a trial de novo
following arbitration. Allstate rejected the arbitration
award, which exceeded the financial responsibility limits,
and requested a trial de novo. The trial court ruled
that the trial de novo provision in the policy is
not enforceable because it is unconscionable, ambiguous, and
violates public policy, and confirmed the arbitration award.
We reverse and remand.
relevant facts are not in dispute. On September 9, 2009,
Rizzo was a passenger in a car operated by Linda Matz. The
car was struck from behind by a car that had been rear-ended
by another vehicle driven by Genci Naum. Matz was insured by
Allstate under a policy that provided $100, 000 of
uninsured/underinsured motorist coverage. Naum was insured by
Liberty Mutual under a policy that had a $20, 000 policy
limit. The accident was Naum's fault. Rizzo alleged that
he was injured in the collision.
settled his personal injury claim against Naum for the $20,
000 policy limit in Naum's Liberty Mutual policy. Because
Rizzo claimed that his damages exceeded $20, 000, he sought
underinsured motorist coverage under Matz's Allstate
policy. Allstate denied Rizzo's claim, asserting that his
injuries were pre-existing, that any "related
exacerbation of [his] alleged pre-existing condition would
have been short lived, " and that he had been fully
compensated by the Liberty Mutual settlement. (Quotation
omitted.) Rizzo demanded arbitration under the Allstate
policy, which stated in part:
If the insured person or we don't agree
on that person's right to receive any damages or the
amount, then at the written request of either the
disagreement will be settled by arbitration. . . . .
Regardless of the method of arbitration, any award not
exceeding the limits of the Financial Responsibility law of
New Hampshire will be binding and may be entered as a
judgment in a proper court.
arbitration panel awarded Rizzo $63, 000, with a $20, 000
offset for the Liberty Mutual settlement.
thereafter, Allstate informed Rizzo that it was rejecting the
arbitration award, and that it was invoking its right to
trial pursuant to a provision in the policy that provided:
Regardless of the method of arbitration, when any arbitration
award exceeds the Financial Responsibility limits in the
State of New Hampshire, either party has a right to trial on
all issues in a court of competent jurisdiction. . . . Costs,
including attorney fees, are to be paid by the party
response, Rizzo filed suit in superior court claiming breach
of contract, and seeking to have the arbitration award
confirmed, because the trial de novo provision in
the Allstate policy was "unenforceable, ambiguous and
void for violation of public policy." The parties filed
cross-motions for partial summary judgment. The trial court
granted Rizzo's motion for summary judgment, denied
Allstate's motion, and confirmed the arbitration award.
This appeal followed.
moving party is entitled to summary judgment if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits filed, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law." Jeffery v. City of Nashua, 163 N.H. 683,
685 (2012) (quotation omitted). "In reviewing the trial
court's grant of summary judgment, we consider the
affidavits and other evidence, and all inferences properly
drawn from them, in the light most favorable to the
non-moving party." Id. "If our review of
that evidence discloses no genuine issue of material fact,
and if the moving party is entitled to judgment as a matter
of law, we will affirm the grant of summary judgment."
Id. "We review the trial court's