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Kelly v. Liberty Insurance Corp.

United States Court of Appeals, First Circuit

February 22, 2019

BRENDAN KELLY, Plaintiff, Appellant,


          Robert A. Stein, with whom Diane L. Perin and The Stein Law Firm, PLLC, were on briefs, for appellant.

          Nancy D. Adams, with whom Lavinia M. Weizel and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., were on brief, for appellee.

          Before Kayatta, Circuit Judge, Souter, Associate Justice, [*] and Selya, Circuit Judge.

          SOUTER, Associate Justice.

         In this diversity case, Brendan Kelly sought a declaratory judgment against Liberty Mutual Insurance Corporation, on his claim that Liberty was bound to provide uninsured (or underinsured) motorist coverage for his benefit. See N.H. RSA 259:117. The insurance contract in question was an umbrella policy issued to Plum Creek Timber Company, Kelly's employer and the named insured. The District Court granted summary judgment for Liberty Mutual. We affirm.

         The policy was issued in New Hampshire, whose law controls. Thus the insurer bears the burden of proof, N.H. RSA 491:22-a, and policy language is to be construed as a reasonable person would understand it upon more than a casual reading of the policy as a whole, Russell v. NGM Ins. Co., 176 A.3d 196, 200 (N.H. 2017).

         Liberty's policy was one of two issued to Plum Creek that provided benefits to its employees as additional insureds when acting within the scope of employment, as Liberty recognizes that Kelly was doing when injured in a two-party highway collision while driving a Plum Creek truck. Terms of the umbrella policy, like those of the underlying basic policy, were regulated by RSA 264:15, which included the following mandate relevant here:

"[U]mbrella or excess policies . . . shall also provide uninsured motorist coverage equal to the limits of liability purchased, unless the named insured rejects such coverage in writing. Rejection of such coverage by a named insured shall constitute a rejection of coverage by all insureds . . . ."

         There is no dispute that Plum Creek, the named insured, did reject uninsured motorist coverage and did so in writing. The writing itself, however, was not incorporated into the policy. It was not attached to the other policy papers, nor was it mentioned in the text of the policy or in any incorporated attachment. It is this absence from the policy materials of an express mention of the rejection that is the point on which Kelly's coverage claim turns: Kelly claims that the want of an explicit reference to Plum Creek's written rejection renders the rejection inoperative against an additional insured like Kelly, with the consequence that RSA 264:15 requires provision of uninsured motorist coverage under the statute's general rule.

         The apparently fatal flaw undermining this position is the absence from RSA 264:15 of any requirement that the policy materials explicitly speak of the rejection of uninsured motorist coverage. Rather, it is the requirement that the rejection be "in writing" that ostensibly regulates the contractual relationship between the insurer and the named insured and, derivatively, an additional insured. Thus, the apparent statutory objective is protection against an act of rejection that is not well considered and a failure of the insurer to provide the coverage that the named insured has reason to expect. See Angela Spradling, Hearing on SB 38 Before the S. Comm. on Commerce, Labor, and Consumer Protection (Comm. Print 2007) (statement of Sen. Lou D'Allesandro).

         Because the statute does not contain an explicit reference requirement, Kelly is left to argue that his position is implicit in the statute, on the ground that its object is also to protect additional insureds who need to know whether they should procure insurance independently in order to obtain adequate protection against uninsured motorists. But even assuming that the statute implicitly protects additional insureds, the statute does not support Kelly's argument because the additional insureds are not left in the dark under this umbrella policy as it is. This is clear from three policy provisions that a reasonable and attentive reader would find:

1. "This policy contains all the agreements between you and us concerning the insurance afforded. This policy's terms can be amended or waived only by endorsement issued by us and made a part of this policy." Umbrella Policy § IV.15.
2. "We will pay those sums . . . that the insured becomes legally obligated to pay as damages because of: (1) 'Bodily injury'; (2) 'Property damage'; or (3) 'Personal and advertising injury'; to which this ...

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