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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 Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Belknap No. 2006-530 KRYSTIE CARTER v. CONCORD GENERAL MUTUAL INSURANCE COMPANY & a. Argued: March 21, 2007 Opinion Issued: May 30, 2007 Normandin, Cheney & O'Neil, PLLC, of Laconia (James F. Lafrance on the brief and orally), for the petitioner. Wiggin & Nourie, P.A., of Manchester (Gordon A. Rehnborg, Jr. and Mary Ann Dempsey on the brief, and Mr. Rehnborg orally), for respondent Concord General Mutual Insurance Company. BRODERICK, C.J. Respondent Concord General Mutual Insurance Company (Concord General) appeals an order of the Superior Court (Perkins, J.) denying its motion for summary judgment and granting the summary judgment motion of the petitioner, Krystie Carter, in a declaratory judgment action to determine the coverage of a policy issued to her by Concord General. The question before the court was whether Carter's Concord General policy provided coverage for injuries she sustained when her feet were run over by a wagon pulled by a tractor at a hayride. We affirm in part, reverse in part, and remand.

I It is undisputed that in October 2003, Carter was at Appleview Orchard for a "haunted hayride" event where her feet were run over by a wagon pulled by a tractor. Photographs of the Appleview wagon submitted to the trial court and as part of the record on appeal show that it has neither brake lights nor fenders. The record contains no information, other than the photographs, concerning the mechanism by which the wagon was hitched to the tractor or whether the wagon was capable of being hitched to other kinds of motor vehicles. Carter advises us that those photographs "constitute[ ] all the available evidence with respect to this [wagon] that could be submitted." In its brief, Concord General refers to the Appleview wagon as a "farm wagon," and while Carter does not dispute the facts set out in Concord General's brief, she "does dispute the labels or terms used to describe the object that ran over [her] feet," noting that "[t]he nature of the parties' dispute with respect to the term used to describe the object that ran over [her] feet will be apparent from the body of the parties' Arguments." In the trial court, Carter disputed "the characterization of the [wagon] that ran over her feet as a `farm trailer' to the extent that this characterization by [Concord General] is meant to indicate that [it] cannot be pulled by an automobile, pick-up or van and/or it is mainly designed for use off public roads." After her accident, Carter made claims against both the tractor operator's liability policy and her own Concord General personal auto insurance policy. Both insurers denied coverage; thereafter, Carter filed a petition for a declaratory judgment to determine coverage. See RSA 491:22 (1997). The tractor operator's liability insurer prevailed on its motion for summary judgment, and that ruling is not at issue in this appeal. The trial court also ruled, however, that Carter was entitled to both uninsured motorists coverage and medical payments coverage under her policy with Concord General. This appeal followed. II When we review a 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. Tech-Built 153 v. Va. Surety Co., 153 N.H. 371, 373 (2006). If our review of the evidence does not reveal any genuine issue of material fact, and if the moving party is entitled to

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judgment as a matter of law, we will affirm the trial court's decision. Id. We review the trial court's application of the law to the facts de novo. Id. In a declaratory judgment action to determine the coverage of an insurance policy, the burden of proof is always on the insurer, regardless of which party brings the petition. RSA 491:22-a (1997). The interpretation of insurance policy language is a question of law for this court to decide. TechBuilt, 153 N.H. at 373. When interpreting an insurance policy, we give the language used by the parties its reasonable meaning, based upon a reading of the policy as a whole. OB/GYN Assocs. of S.N.H. v. N.H. Ins. Guaranty Assoc., 154 N.H. 553, 562 (2006). If more than one reasonable interpretation is possible, and one of them provides coverage, the policy contains an ambiguity and will be construed against the insurer. Catholic Med. Ctr. v. Executive Risk Indem., 151 N.H. 699, 701 (2005). Our practice of construing ambiguities against the insurer is particularly applicable when the language at issue is part of an exclusionary clause. Contoocook Valley Sch. Dist. v. Graphic Arts Mut. Ins. Co., 147 N.H. 392, 394 (2001). However, we will not perform linguistic gymnastics to find a term ambiguous. Catholic Med. Ctr., 151 N.H. at 701. III In its order, the trial court determined that both the medical payments section and the uninsured motorists endorsement of Carter's Concord General policy were ambiguous and, therefore, properly construed against Concord General and in favor of coverage. We consider each portion of the policy in turn. A The medical payments section of the policy provides, in pertinent part, that Concord General "will pay reasonable expenses incurred for necessary medical . . . services because of `bodily injury' . . . [c]aused by accident; and . . . [s]ustained by an `insured'." The policy then defines the term "insured" to mean "[y]ou . . . [a]s a pedestrian when struck by . . . a motor vehicle designed for use mainly on public roads or a `trailer' of any type." The term "trailer" is defined in the policy's general definition section: "`Trailer' means a vehicle designed to be pulled by a: 1. [p]rivate passenger auto; or 2. [p]ickup or van . . . [and to] mean[ ] a farm wagon or farm implement while towed by a vehicle listed in 1. or 2. above." The trial court found the foregoing language to be ambiguous but did not explain its reasoning. On appeal, Concord General argues that the policy unambiguously informed Carter that coverage for her injuries was not available under the medical payments section because the Appleview wagon was a farm

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wagon being pulled by a tractor, rather than a private passenger auto, pickup or van, thus placing it outside the definition of "trailer" and placing her outside the definition of "insured." More specifically, Concord General argues that: (1) photographs of the Appleview wagon "conclusively establish that [it] would constitute a farm wagon or farm implement"; (2) that a farm wagon or farm implement only qualifies as a "trailer" under its policy when it is towed by a private passenger auto, pickup or van; (3) it is undisputed that the Appleview wagon was being pulled by a tractor; and (4) because the wagon was not being pulled by a private passenger auto, pickup or van, it was, necessarily, not a "trailer" as that term is defined in the policy. Concord General also notes that Carter produced no evidence to counter its argument

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