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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 ___________________________ Hillsborough-northern judicial district No. 2006-904 JOHN MILLER, SR., AS ADMINISTRATOR OF THE ESTATE OF JOHN G. MILLER, JR. v. AMICA MUTUAL INSURANCE COMPANY Argued: June 7, 2007 Opinion Issued: August 28, 2007 McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Scott H. Harris and Steven J. Dutton on the brief, and Mr. Harris orally), for the plaintiff. Sulloway & Hollis, P.L.L.C., of Concord (Michael M. Lonergan & a. on the brief, and Timothy A. Gudas orally), for the defendant.

DUGGAN, J. The defendant, Amica Mutual Insurance Company (Amica), appeals an order of the Superior Court (Abramson, J.), granting summary judgment to the plaintiff, John Miller, Sr., as administrator of the estate of John G. Miller, Jr. The court ruled that Amica was required to provide uninsured motorist coverage under a policy issued to the decedent. We affirm.

I. Background The facts are not in dispute. In April of 2005, the decedent was the victim of a hit-and-run accident on Interstate 495 in Massachusetts. The accident was the result of an unfortunate chain of events. As the decedent was traveling, his motorcycle got caught in a rut in the roadway and he was thrown forty feet from it. Passersby stopped to help him and to reroute traffic, but he ultimately was hit by an oncoming vehicle while lying in the road. He later died from the injuries he sustained. Although the vehicle that hit him stopped briefly, it later fled, and neither it nor its driver has ever been identified. At the time of the accident, the decedent owned a 2000 Jeep Cherokee that was insured under an automotive policy issued by Amica. The motorcycle, however, was not insured. The policy contained uninsured motorist coverage which provided, in pertinent part: "We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of [an] uninsured motor vehicle because of bodily injury sustained by an insured and caused by an accident." For purposes of coverage, an "uninsured motor vehicle" included any "hit and run vehicle whose operator or owner cannot be identified and which hits . . . you or any family member." An owned vehicle exclusion, however, precluded coverage for any injuries sustained "[b]y an insured while occupying, or when struck by, any motor vehicle owned by that insured which is not insured for this coverage under this [p]olicy." "[O]ccupying" is defined as "in, upon, getting in, on, out or off" of a vehicle. At some time after the decedent's death, the plaintiff initiated a declaratory judgment action in superior court, seeking compensation for the decedent's injuries under the policy's uninsured motorist coverage provisions. The parties cross-moved for summary judgment, and the issue became whether the decedent was "occupying" the motorcycle for purposes of the owned vehicle exclusion. The superior court ruled that the term "occupying" was not ambiguous, and that the decedent was not occupying his motorcycle at the time he was hit. The court also ruled that a reasonable person in the position of the insured would not view someone lying in the middle of the highway forty feet from his motorcycle for a period of time between thirty seconds to one and a half minutes as "in, upon, getting in, on, out or off" that motorcycle . . . . The court also ruled that, regardless of whether "framed in temporal terms or spatial terms," the plaintiff had put forth a reasonable interpretation of the policy: "that one who has been ejected from his motorcycle, and is lying in the

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highway forty feet away from that motorcycle as traffic is directed around him, is no longer `occupying' the motorcycle." On appeal, Amica contends that the superior court erred as a matter of law in ruling that the decedent was not "occupying" the motorcycle. It argues that the decedent was "occupying" the motorcycle because he had not reached a place of safety and had not severed his connection to the motorcycle. It also argues that the plaintiff could not reasonably expect coverage under the circumstances. The plaintiff counters that the plain meaning of "occupying" and the terms included in its definition do not describe someone who has been thrown forty feet from his vehicle and is laying in the roadway for a period of time before being struck. II. Discussion Our standard of review is well-settled. When reviewing 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 nonmoving party. If our review of the evidence does not reveal a genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the trial court's decision. We review the trial court's application of the law to the facts de novo. Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 248 (2006). Resolution of this dispute requires us to interpret the policy. Interpretation of the language in an insurance policy is a question of law. Peerless Ins. v. Vt. Mut. Ins. Co., 151 N.H. 71, 72 (2004). We construe the language of an insurance policy as would a reasonable person in the position of the insured based on a more than casual reading of the policy as a whole. Wilson v. Progressive N. Ins. Co., 151 N.H. 782, 788 (2005). Where the terms of the policy are clear and unambiguous, we accord the language its natural and ordinary meaning. Id. However, if the policy is reasonably susceptible to more than one interpretation and one interpretation favors coverage, the policy will be construed in favor of the insured and against the insurer. Id. Absent a statutory provision or public policy to the contrary, an insurance company is free to limit its liability through an exclusion written in clear and unambiguous policy language. Trombley v. Liberty Mut. Ins. Co., 148 N.H. 748, 751 (2002). For exclusionary language to be considered clear and unambiguous, two parties cannot reasonably disagree about its meaning. Id.

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Amica contends that in interpreting "occupying" under the policy, we must apply the familiar vehicle-orientation test. "The vehicle orientation test requires that a claimant be engaged in an activity `essential to the use of the vehicle' when the accident occurs." State Farm Mut. Auto. Ins. Co. v. Cookinham, 135 N.H. 247, 249 (1992). "[U]nder the vehicle orientation test, `occupying' may include the process of moving away from the vehicle to a `place of safety.'" D'Amour v. Amica Mut. Ins. Co., 153 N.H. 170, 173 (2006). If, however, a claimant has severed his or her connection to the vehicle, then he or she is no longer occupying the vehicle. Id. at 174-75. We have applied the vehicle orientation test to the definition of "occupying" on two previous occasions. In those cases, a coverage section of the policy was at issue. Therefore, if the individual was "occupying" the vehicle, coverage was required. If the individual was not "occupying" the vehicle, coverage was not required. Here, by contrast, the converse is true because a policy exclusion is at issue. Therefore, if the individual was "occupying" the vehicle, coverage was not required. If the individual was not "occupying" the vehicle, coverage was required. In Cookinham, Faith Cookinham was leaning against a Camaro with her elbows and forearms on the back of the trunk while speaking with friends. Cookinham, 135 N.H. at 248. The owner of the Camaro soon noticed a vehicle, later discovered to be uninsured, rapidly approaching and attempted to push Cookinham out of its way. Id. The owner's efforts were "ineffective" and Cookinham was "struck by the vehicle, propelled over the Camaro, and seriously injured." Id. Under the owner's insurance policy, Cookinham would have been entitled to uninsured motorist coverage for her injuries only if she had been "occupying" the Camaro at the time of the accident. Id. The policy defined "occupying" as "in or upon or entering into or alighting from" the insured vehicle. Id. (quotation omitted). Cookinham contended that she was "`occupying' [the Camaro] under the terms of the policy because she was `upon' [it]." Id. at 249-50. The insurer, on the other hand, argued that the vehicle orientation test was "consistent with the policy definition of `occupying,'" and that Cookinham was not vehicleoriented. Id. at 249. We held that the term "occupying" was ambiguous because both Cookinham and the insurer had offered reasonable interpretations of that term. Id. at 249-50. Thus, we concluded that the policy should be construed in favor of coverage. Id. at 250. In D'Amour, the insured drove to her apartment complex in Concord, parked in her designated parking space, got out of her vehicle, opened the driver's side rear door, removed several coolers and a grocery basket, and proceeded to walk along the driver's side toward her apartment. D'Amour, 153 N.H. at 170-71. Alongside the rear bumper, she slipped on ice and fell. Id. At

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the time of her slip and fall, the insured's policy with Amica provided coverage for bodily injury sustained while "occupying" the vehicle. Id. at 172. The definition of "occupying" was the same as it is in this case. Id. Amica maintained that the insured was not "occupying" her vehicle at the time of the slip and fall because she had completed the act of "getting out" of it. Id. It maintained that one could be "getting out" of the vehicle only if he or she was engaged in a transaction related to the vehicle. Id. at 173. The insured argued that she was "getting out" of her vehicle at the time because she was in the process of moving away from the vehicle to a place of safety. Id. Alternatively, she argued that "getting out" was ambiguous and should have been construed in her favor. Id. We held that both Amica and the insured had offered reasonable interpretations of "getting out," but that the insured's conduct did not fit within the definition she offered because she had severed her connection with her vehicle and because she was not removing herself from an unsafe situation when she fell. Id. at 174-75. Thus, we held that she was not "occupying" the vehicle. Id. Amica contends that Cookinham and D'Amour require us to hold that the decedent was vehicle-oriented. We do not agree. Cookinham was clearly physically upon the Camaro (she was leaning on it) at the time she sustained the injuries for which she sought coverage. Cookinham, 135 N.H. at 248. Thus, she was clearly "occupying" it. Here, by contrast, the superior court found that the decedent had been ejected from his motorcycle and was "lying in the middle of the highway forty feet from his motorcycle for a period of time between thirty seconds to one and a half minutes" at the time he suffered the lethal injuries for which coverage is sought. This circumstance is not, therefore, analogous to Cookinham. Citing D'Amour, Amica argues that the decedent in the instant case had not yet reached a place of safety, and therefore was vehicle-oriented. The "place of safety" inquiry, however, is commonly applied in the context of people who leave their vehicles to go from an unsafe place to a safe one. See D'Amour, 153 N.H. at 174. No one can seriously argue that the decedent was trying

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