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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-southern judicial district No. 2011-406 REBECCA RIVERA v. LIBERTY MUTUAL FIRE INSURANCE COMPANY Argued: February 9, 2012 Opinion Issued: May 11, 2012 McDowell & Osburn, P.A., of Manchester (Mark D. Morrissette on the brief and orally), for the petitioner. Morrison Mahoney LLP, of Boston, Massachusetts (Kevin Truland on the brief and orally), for the respondent. HICKS, J. In this declaratory judgment action, the respondent, Liberty Mutual Fire Insurance Company (Liberty Mutual), appeals an order of the Superior Court (Colburn, J.) denying its motion for summary judgment and granting the summary judgment motion of the petitioner, Rebecca Rivera. Rivera cross-appeals. The court ruled that an automobile policy (policy) issued to Rivera's parents excludes liability coverage but affords uninsured motorist coverage for injuries Rivera sustained in a single-vehicle accident in Dracut, Massachusetts. We affirm.

The trial court found or the record supports the following facts. On May 10, 2008, Rivera was driving a 2005 Toyota Matrix (2005 Toyota) when her front seat passenger, Timothy Chateauneuf, grabbed the steering wheel, causing the vehicle to leave the roadway and strike a tree. Chateauneuf was subsequently convicted of assault by means of a deadly weapon. At the time of the accident, the policy declarations listed Rivera as a covered driver and the 2005 Toyota as a covered vehicle. The policy contains liability coverage whereby Liberty Mutual agrees to "pay damages for `bodily injury' or `property damage' for which any `insured' becomes legally responsible because of an auto accident." However, the policy excludes from this coverage "any `insured' . . . [w]ho intentionally causes `bodily injury' or `property damage'" or who "[u]s[ed] a vehicle without a reasonable belief that that `insured' [wa]s entitled to do so" (entitlement exclusion). "Insured" as used in this portion of the policy means, in relevant part, "[a]ny person using `your covered auto'." It is undisputed that, at the time Chateauneuf grabbed the steering wheel, he was an "insured" under the terms of the policy. The policy further provides for uninsured motorist coverage, as amended by an endorsement, which states, in relevant part: A. We will pay compensatory damages which an "insured" is legally entitled to recover from the owner or operator of: 1. An "uninsured motor vehicle" or "underinsured motor vehicle" because of "bodily injury" sustained by an "insured" and caused by an accident; . . . . .... The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the "uninsured motor vehicle" or "underinsured motor vehicle". For purposes of this coverage, "`[i]nsured' . . . means . . . [y]ou or any `family member' [and] . . . [a]ny other person `occupying' `your covered auto'." "Uninsured motor vehicle" is defined, in relevant part, in a separate endorsement, as "a land motor vehicle or trailer of any type . . . [t]o which a bodily injury liability bond or policy applies at the time of the accident but the bonding or insuring company denies coverage." Nonetheless, an exclusion provides that "uninsured motor vehicle" does not include "any vehicle or equipment . . . [o]wned by or furnished for the regular use of you or any `family member'." For purposes of this opinion, we will refer to this as the owned vehicle exclusion; however, we note that we have previously referred to a 2

similar exclusion as a household exclusion. See Beliveau v. Norfolk & Dedham Mut. Fire Ins. Co., 120 N.H. 73, 74 (1980) (referring to a similar exclusion in the uninsured motorist portion of a policy as the "household exclusion clause"). After Rivera was denied coverage for her injuries by Chateauneuf's insurance carrier, she submitted a claim for coverage from Liberty Mutual pursuant to the policy. Liberty Mutual denied her claim, stating that the 2005 Toyota was excluded from the policy definition of "uninsured motor vehicle." Rivera then filed a petition for a declaratory judgment, seeking a declaration that she was entitled to recover under the uninsured motorist portion of the policy, or in the alternative, the liability portion. The parties filed cross-motions for summary judgment. The trial court granted Rivera's motion and denied Liberty Mutual's. The court ruled that the entitlement exclusion precluded recovery under the liability portion of the policy because Chateauneuf could not have had a reasonable belief that he was entitled to use the car as he did. It further determined that statutory liability coverage under RSA 264:18, VI (2004) did not apply "because Chateauneuf was never granted express or implied consent to have possession or control over the vehicle." Nevertheless, the court concluded that "the 2005 Toyota fits within the [policy] definition of `uninsured motor vehicle'" and, thus, Rivera was entitled to uninsured motorist coverage. These appeals followed. In reviewing a trial court's summary judgment ruling, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Progressive N. Ins. Co. v. Argonaut Ins. Co., 161 N.H. 778, 780 (2011). Summary judgment may be granted only where no genuine issue of material fact is present, and the moving party is entitled to judgment as a matter of law. 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. Carter v. Concord Gen. Mut. Ins. Co., 155 N.H. 515, 517 (2007); RSA 491:22-a (2010). The interpretation of insurance policy language is a question of law for this court to decide. Carter, 155 N.H. at 517. We construe the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading of the policy as a whole. Philbrick v. Liberty Mut. Fire Ins. Co., 156 N.H. 389, 390 (2007). Insurers are free to contractually limit the extent of their liability through use of a policy exclusion provided it violates no statutory provision. Progressive N. Ins. Co. v. Concord Gen. Mut. Ins. Co., 151 N.H. 649, 653 (2005). The insurer asserting an exclusion of coverage bears the burden of proving that the exclusion applies. Id.

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Liberty Mutual argues that the trial court erred in finding Rivera was entitled to uninsured motorist coverage under the policy because the 2005 "Toyota fails to meet the policy definition of an `uninsured motor vehicle' or `underinsured motor vehicle' pursuant to" the owned vehicle exclusion. It further argues that "the entitlement exclusion precludes coverage under the liability provisions of the . . . policy." Rivera disagrees, and asserts that the owned vehicle exclusion "is unenforceable as it violates the public policy underlying the uninsured motorist statute, [RSA] 264:15, and . . . is contradictory to [that statute's] plain language." The policy defines "[u]ninsured motor vehicle," in relevant part, as "a land motor vehicle or trailer of any type . . . [t]o which a bodily injury liability bond or policy applies at the time of the accident but the bonding or insuring company denies coverage." Here, the 2005 Toyota was insured for liability coverage but Liberty Mutual effectively denied such coverage pursuant to the entitlement exclusion. Thus, based upon the policy definition, the 2005 Toyota is an "[u]ninsured motor vehicle." Under the owned vehicle exclusion, however, "uninsured motor vehicle" does not include "any vehicle or equipment . . . [o]wned by or furnished for the regular use of you or any `family member'." Liberty Mutual argues that this exclusion unambiguously excludes from uninsured motorist coverage "any vehicle" owned by the insured, including the 2005 Toyota covered under the policy. Even assuming it is reasonable to interpret "any vehicle" to include the 2005 Toyota, we find this interpretation to be inconsistent with the purpose of our uninsured motorist statute, RSA 264:15 (Supp. 2011). "In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." Swain v. Employers Mut. Cas. Co., 150 N.H. 574, 576 (2004) (quotation omitted). We interpret statutes not in isolation, but in the context of the overall statutory scheme. Kierstead v. State Farm Fire & Cas. Co., 160 N.H. 681, 685 (2010). Our analysis must start with consideration of the plain meaning of the relevant statutes, construing them, where reasonably possible, to effectuate their underlying policies. Id. "Uninsured motorist statutes are designed to provide an innocent victim a source of restitution when that injured party cannot recover the full amount of damages from the tortfeasor." Swain, 150 N.H. at 576 (quotation omitted). Such statutes have been liberally construed to accomplish their legislative purpose. Charest v. Union Mut. Ins. Co., 113 N.H. 683, 686 (1973) (decided under former statute). "Uninsured motorist coverage is not intended to be the only source of insurance for individuals. Rather, it is designed to act in concert with already existing standard liability policies." Swain, 150 N.H. at 576 (quotation and brackets omitted); Hein v. Nationwide Ins. Co., 106 N.H. 378, 381 (1965) ("uninsured motorists' insurance is not liability insurance in any 4

sense, but resembles limited accident insurance"). We are not at liberty to find uninsured motorist coverage when it is not required by the statute or to read into the statute a prohibition of an exclusion that is neither expressed nor implied. Charest, 113 N.H. at 686. Our uninsured motorist statute provides, in pertinent part: No policy shall be issued under the provisions of RSA 264:14, with respect to a vehicle registered or principally garaged in this state, unless coverage is provided therein or supplemental thereto at least in amounts or limits prescribed for bodily injury or death for a liability policy under this chapter, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or drivers of uninsured motor vehicles, and hit-and-run vehicles because of bodily injury, sickness, or disease, including death resulting therefrom. When an insured elects to purchase liability insurance in an amount greater than the minimum coverage required by RSA 259:61, the insured's uninsured motorist coverage shall automatically be equal to the liability coverage elected. RSA 264:15, I. The statute requires "that all automobile liability policies include uninsured motorist coverage." Beliveau, 120 N.H. at 76 (decided under former statute). "In that sense, uninsured motorist coverage is vehicle related" and "[a]utomobile owners who wish to provide themselves with uninsured motorist coverage in all situations can obtain that coverage by insuring the vehicles they own." Id.; see Turner v. St. Paul Prop. & Liab. Ins. Co., 141 N.H. 27, 29 (1996) (noting that "the requirement that all automobile liability policies include uninsured motorist coverage assures that such coverage runs at a minimum to the vehicle insured"). The purpose of requiring uninsured motorist coverage is to close a gap in the protection afforded the public under our Financial Responsibility Act. Charest, 113 N.H. at 686. To that end, the intent of the statute is "to allow policy holders to protect themselves against injury from an uninsured motorist to the extent they protect themselves against liability." Swain, 150 N.H. at 577 (quotation omitted). The language of the statute "makes clear that the purpose of the . . . statute is to ensure that those who have purchased automobile insurance whose losses would otherwise go uncompensated, either because the tortfeasor lacked liability coverage or because the tortfeasor's identity was unknown, can receive compensation for their injuries." Matarese v. N.H. Mun. Assoc. Prop.

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