___________________________

Belknap

No. 97-610

SARA A. WYATT

v.

MARYLAND CASUALTY COMPANY & a.

October 20, 1999

Normandin, Cheney & O'Neil, of Laconia (A.G. O'Neil, Jr. and Anne M. Rice on the brief, and Mr. O'Neil orally), for the plaintiff.

Devine, Millimet & Branch, P.A., of Manchester (Andrew D. Dunn and Julie A. Dascoli on the brief, and Ms. Dascoli orally), for defendant Maryland Casualty Company.

McDonough & Lindh, P.A., of Manchester (Brian T. McDonough on the brief and orally), for defendant Universal Underwriters Insurance Company.

BRODERICK, J. The plaintiff, Sara A. Wyatt, and the defendants, Maryland Casualty Company (Maryland) and Universal Underwriters Insurance Company (Universal), filed cross-motions for summary judgment to determine the underinsured motorist benefits available to the plaintiff under three separate insurance policies. The Superior Court (McHugh, J.) determined that because the plaintiff had received liability coverage under one of the policies, she was entitled to receive underinsured motorist coverage only under the two remaining policies. On appeal, the plaintiff argues that prohibiting her recovery of both liability and underinsured motorist benefits under a single policy misinterprets the policy language, contravenes New Hampshire law, and creates an inequitable result. We affirm.

I

For purposes of this appeal, the parties agree to the following facts. In April 1994, the plaintiff was seriously injured in a single-car accident while riding in a vehicle owned by her brother and driven with his permission by her friend. The vehicle was insured under an automobile policy issued by Maryland to the plaintiff's brother. The policy provided liability coverage of $100,000 per person and underinsured motorist benefits in the same amount. Maryland paid the plaintiff the $100,000 liability limit under her brother's policy.

As a resident of her father's household, the plaintiff claimed entitlement to underinsured motorist benefits under two insurance policies issued to her father: a motor vehicle policy issued by Maryland that provided $100,000 in underinsured motorist coverage, and a motorcycle policy issued by Universal that provided $25,000 in underinsured motorist coverage. The plaintiff does not dispute that the combined underinsured motorist coverage to which she is entitled is subject to a credit of $100,000 for the liability payment she recovered under her brother's policy. The plaintiff received underinsured motorist benefits of $25,000 under her father's policies. The sole issue on appeal is whether the plaintiff is also entitled to underinsured motorist benefits under her brother's policy when she has already recovered under the liability section of that policy.

II

The plaintiff first argues that the trial court erroneously prohibited her from stacking the underinsured motorist coverage under her brother's policy with the underinsured motorist coverage under her father's policies.

The interpretation of an insurance policy is a question of law for this court to decide. Calabraro v. Metropolitan Prop. & Cas. Ins. Co., 142 N.H. 308, 310, 702 A.2d 310, 312 (1997). "In interpreting policy language that purports to limit liability or prevent stacking, we construe ambiguities in favor of the insured and against the insurer." Id. "We will not, however, force an ambiguity simply to resolve it against an insurer." Brouillard v. Prudential Prop. & Cas. Ins. Co., 141 N.H. 710, 712, 693 A.2d 63, 66 (1997). "In determining whether an ambiguity exists, we take the plain and ordinary meaning of the policy's words in context, and we construe the terms of the policy as would a reasonable person in the position of the insured based on more than a casual reading of the policy as a whole." Id. (quotation omitted).

The policy at issue provides for $100,000 in liability benefits (Coverage A), and $100,000 in underinsured motorist benefits (Coverage G). It also contains the following limitation for underinsured motorist coverage:

(c) With respect to an accident involving an underinsured motor vehicle, the limit of liability for this coverage shall be reduced by all sums paid on account of such bodily injury by or on behalf of:

(1) the owner or operator of the underinsured automobile; and

(2) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under Coverage A.

(d) Any payment made under this Part to or for any insured shall be applied in reduction of the amount of damages which he may be entitled to recover from any person insured under Coverage A.

This policy language clearly and unambiguously sets off any recovery under Coverage G, the underinsured motorist section of the policy, by the amount collected under Coverage A, the liability section of the policy. Because the plaintiff recovered $100,000 under the policy's liability section, she cannot recover additional funds under the underinsured motorist section of the policy. "When an injured person has recovered the full amount of the liability insurance provided . . . there is no persuasive reason why the claimant should also be allowed to, in effect, transform the underinsured motorist insurance benefits of the same policy into additional liability insurance coverage in opposition to a clear and unambiguous provision providing for an offset of the amount of liability insurance from the amount of underinsured motorist insurance." 3 A. Widiss, Uninsured and Underinsured Motorist Insurance