___________________________

Grafton

No. 95-835

RODERICK C. AND KATHLEEN HULL

v.

TOWN OF PLYMOUTH & a.

March 2, 1999

Nixon, Raiche, Manning & Casinghino, P.A., of Manchester (Leslie C. Nixon on the brief and orally), for the plaintiffs.

Gallagher, Callahan & Gartrell, P.A., of Concord (David A. Garfunkel and Brian C. Goudas on the brief, and Mr. Garfunkel orally), for the defendants.

HORTON, J. The defendants, the Town of Plymouth (town), New Hampshire Municipal Association Property-Liability Insurance Trust, Inc. (NHMA-PLIT), and Underwriters at Lloyd's, London (Lloyd's), appeal an order of the Superior Court (Smith, J.) granting summary judgment for the plaintiffs, Roderick C. and Kathleen Hull, and denying summary judgment for the defendants. We affirm.

The facts before the trial court were as follows. Roderick Hull sustained injuries in an automobile accident while working as a police officer for the town. He received workers' compensation benefits from the town and the maximum amount of liability coverage carried by the other driver involved in the accident. Because such amounts did not fully compensate him for his injuries, he brought this declaratory judgment action to determine his entitlement to compensation under the uninsured/underinsured motorist provision of the town's liability policy.

NHMA-PLIT, a pooled risk management program authorized by RSA chapter 5-B (1988 & Supp. 1998), insures the town for up to $500,000 in uninsured/underinsured motorist claims. Lloyd's insures the town for such claims in excess of those covered by NHMA-PLIT. The defendants objected to the plaintiffs' motion for summary judgment and filed a cross-motion, asserting that the plaintiffs were barred by the Workers' Compensation Law, RSA ch. 281-A (Supp. 1998), from receiving uninsured/underinsured motorist benefits from the town or its insurers. The trial court held that the plaintiffs were not barred from seeking such coverage. This appeal followed.

When reviewing a grant of summary judgment, we look at the evidence, and all inferences that properly may be drawn therefrom. Cf. N.E. Tel. & Tel. Co. v. City of Franklin, 141 N.H. 449, 452, 685 A.2d 913, 916 (1996). We will affirm the grant of summary judgment if we find that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See id.

The trial court's decision was based primarily on its interpretation of "insurance carrier" as used in RSA 281-A:8, which provides, in part:

I. An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the employee or the employee's personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:

(a) Against the employer or the employer's insurance carrier or an association or group providing self-insurance to a number of employers . . . .

As defined in the statute, the term "insurance carrier" "shall include any corporation licensed to sell insurance in this state from which an employer has obtained a workers' compensation insurance policy in accordance with the provisions of this chapter." RSA 281-A:2, XII. The trial court found that under the plain meaning of the statute, the insurer against which RSA 281-A:8 bars a cause of action is the employer's workers' compensation insurer, not its automobile insurer. The court therefore held that the plaintiffs' claims against the defendants for uninsured/underinsured motorist coverage were not barred.

The defendants argue that by using the words "shall include" in the definition of insurance carrier, the legislature did not exclude other kinds of insurers. They contend that "the plain, common sense meaning of `insurance carrier' is simply any entity providing insurance to the employer."

We interpret statutes according to the plain meaning of the words the legislature used. See South Down Recreation Assoc. v. Moran, 141 N.H. 484, 487, 686 A.2d 314, 316 (1996). We focus "not on isolated words or phrases," but "on the statute as a whole." Id. (quotations omitted). "Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme." Id. (quotation omitted).

In a statutory definition, the word "include" is not generally considered a term of limitation. See 2A N. Singer, Sutherland Statutory Construction