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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. 2010-756 ESTATE OF JUNE M. DAY & a. v. HANOVER INSURANCE COMPANY Argued: June 16, 2011 Opinion Issued: September 20, 2011 Richard J. Joyal, of Manchester, by brief and orally, for the petitioners. Boyle, Shaughnessy & Campo, P.C., of Manchester (Mark W. Shaughnessy and Andrew B. Ranks on the brief, and Mr. Ranks orally), for the respondent. LYNN, J. The petitioners, the Estate of June M. Day (Estate), Byron S. Day and Stephanie L. Day, appeal the Superior Court's (Tucker, J.) ruling that respondent Hanover Insurance Company's (Hanover) consent to settle a claim by the petitioners with the insurer of a third party tortfeasor did not preclude Hanover from contesting its liability to provide the Estate underinsured motorist coverage under its insurance contract with the Estate's decedent. We affirm.

The summary judgment record reveals the following pertinent facts. On September 18, 2007, June M. Day was fatally injured in a motor vehicle accident. The collision occurred on Route I-93 in Hooksett, when a vehicle operated by Lisa Follett that was traveling north crossed the median and struck Day's vehicle that was traveling south. At the time of the accident, Day's vehicle was insured under an automobile liability policy and a personal umbrella policy issued by Hanover, and both policies provided underinsured motorist coverage. Specifically, Hanover was obligated to "pay compensatory damages which an `insured' is legally entitled to recover from the owner or operator of . . . [a]n . . . `underinsured motor vehicle' because of `bodily injury' sustained by an `insured' and caused by an accident." Follett's vehicle was insured by the Commerce Insurance Company (Commerce) under a policy that provided a bodily injury coverage limit of $100,000. Following the accident, the petitioners made a claim against the Commerce policy, and in November 2008 Commerce offered its policy limit. By letter dated February 17, 2009, Hanover agreed that the petitioners could accept the settlement offered by Commerce "while reserving [Hanover's] right to continue the investigation into liability in this matter," and noting that Hanover had "neither accepted nor denied liability." The petitioners accepted payment from Commerce and executed a release of Follett and Commerce from any further liability arising out of the accident. Thereafter, the petitioners took the position that, by consenting to the settlement with Follett and Commerce, Hanover was precluded from contesting that the petitioners were "legally entitled to recover" damages from Follett, and, when Hanover disagreed with the petitioners' position, the petitioners instituted this declaratory judgment action in superior court. Ruling on the parties' cross-motions for summary judgment, the trial court rejected the petitioners' position and concluded that Hanover's agreement to the settlement did not preclude it from contesting its liability to provide underinsured motorist coverage. The court therefore dismissed the action. The petitioners filed an objection to the dismissal and a motion for clarification and reconsideration. In the motion, the petitioners argued that the court had "misunderstood the essence of the petition," and that they did not assert "that Hanover's consent to settlement gives the Petitioners a legal entitlement to uninsured motorist coverage." Rather, the petitioners urged that the question it had asked the court to rule upon was whether Hanover participated in good faith in the settlement process. The trial court denied the petitioners' objection and motion, ruling that it had not misunderstood the issue presented and that, even if the issue was as the petitioners reformulated

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it, that issue was not the proper subject for a declaratory judgment action. This appeal followed. 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. N. Sec. Ins. Co. v. Connors, 161 N.H. 645, 649 (2011); see RSA 491:8-a (2010). 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. N. Sec. Ins. Co., 161 N.H. at 649. We review the trial court's application of the law to the facts de novo. Id. The petitioners argue that the trial court erred as a matter of law in ruling that Hanover's consent to the settlement with Commerce does not preclude Hanover from disputing its liability to provide the petitioners with underinsured motorist coverage. The only authority they cite for this position is the following statement contained in an insurance law treatise: [W]hen the insurer providing uninsured (or underinsured) motorist insurance coverage consented to or approved a settlement by an insured with a tortfeasor or anyone else who may be legally obligated, such a settlement does not provide an insurer with a basis for denying a claim for uninsured motorist insurance benefits on the ground that an insured is not legally entitled to recover for damages caused by an uninsured motorist. 1 A.L. Widiss & J.E. Thomas, Uninsured and Underinsured Motorist Insurance

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