PLAINTIFF S REPLY BRIEF

Transcription

1 NEW HAMPSHIRE SUPREME COURT DOCKET NO Estate of June M. Day, et al. v. Hanover Insurance Company Appeal by Petition pursuant to Rule 7 Mandatory Appeal from the Hillsborough County Superior Court, Northern District PLAINTIFF S REPLY BRIEF Plaintiff s Counsel: Richard J. Joyal, Esq. 63 High Street Manchester, NH NH Bar ID #1289 Richard J. Joyal On the Brief and orally

2 TABLE OF CONTENTS Page Table of Contents 1 Table of Cases 2 Table of Statutes 2 Table of Authorities 2 Reply-Brief Argument 3 Reply-Brief Addendum 10 1

3 TABLE OF CASES Allstate Insurance Co. v. Elkins, 77 Ill.2d 384, 396 N.E.2d 528 7, 8 (Ill. 10/19/1979) Funai v. Metropolitan Property and Casualty Co. at 145 NH 642 (2000) 6 Furukawa v. Arbella Mutual Insurance Company, 794 N.E. 2d (Mass. App. 2003) Matarese v. New Hampshire Municipal Association, 147 NH 396 (2002) 7 Second Congregation Soc'y v. Hugh Stubbins & Assocs., N.H. 446 (1968) Page TABLE OF STATUTES RSA 542:2 Arbitration of Disputes 6 TABLE OF AUTHORITIES 1 Alan I. Widiss & Jeffrey E. Thomas, Uninsured and Underinsured 7 Motorist Insurance (Matthew Bender 2005 Ed & Supp 2010) (Widiss) 2

4 REPLY ARGUMENT Hanover has not denied that the Days are legally entitled to recover. Hanover has not denied it failed to admit or deny liability. Hanover has not denied that the Days proved the liability of the tortfeasor. Hanover and the trial court ignored the underlying issue of delay. Hanover s arguments in its brief sidestep the questions presented within the context and facts of this case, as did the trial court s decision in its dismissal of the Days Petition for Declaratory Judgment. Hanover merely states the general and undisputed proposition that the Days must prove they are legally entitled to recover but it ignores the fact that the Days have already proven they are legally entitled to recover. Hanover does not assert that the Days are not legally entitled to recover. Hanover just avoids admitting it. Likewise, absent from the brief is an assertion that the Days have not proven the liability of the tortfeasor. Also absent is an assertion that Hanover had promptly sought to settle the Days claim. In this case the Days proved their legal entitlement to recover years ago when Hanover gave its assent to the Days to settle with the tortfeasor. The tortfeasor s liability was clear. Further proof came when the tortfeasor admitted guilt for an offense that constituted negligence per se. The underlying dispute and issue in this case is and was one of delay imposed by Hanover regarding settlement of the Days claim. In seeking a remedy for that delay the Days asked the trial court to do the following: 3

5 A. Find that the Respondent is obligated to address and participate in settlement of the Petitioners claim and loss without delay, reservation or conditions; B. Find that the Respondent has improperly ignored and delayed the addressing of and conducting of settlement of the Petitioners claim with the Petitioners; C. Award the Petitioners their attorney fees pursuant to RSA 491:22; and, D. Grant such other and further relief as may be just and proper. (see Reply Brief Addendum, prayers for relief, Petition for Declaratory Judgment at p. 16 herein.) In asking the trial court to grant the relief sought, the Days, by way of a motion for summary judgment, requested that the trial court impose a rule that would prohibit Hanover from denying that the Days were legally entitled to recover. The Days argued for application of the rule as a way of overcoming the roadblock Hanover had used to delay the advancement of the Days claim. Instead of addressing a rule of law in the context of a dispute over delay, the trial court dismissed the Days case on grounds which incorrectly bound the issue of delay to an adverse determination of the law of legal entitlement to recover. The trial court s decision and Hanover s brief ignored the basic problem of delay that the Days had sought to overcome. In refusing to apply the Widiss rule advocated by the Days, the trial court should not have dismissed the Days Petition for Declaratory Judgment simply because it chose not to apply the Widiss rule. The application of the rule was not intended to be determinative of the Days right to advance the settlement of their claim. It was merely a means to that end, not an end in itself. 4

6 The trial court ignored the relationship between Hanover s refusal to admit or dispute the Days legal entitlement to recover and the delay which that refusal imposed. If the trial court had taken into account Hanover s avoidance of taking a position on the Days legal entitlement to recover, it should have ordered Hanover to make a decision to either admit the Days claim or to deny the claim so that the matter could be advanced or arbitrated. Regardless of whether Hanover retained a right to contest liability after it assented to settlement with the tortfeasor, at some point within a reasonable period of time Hanover still had a duty to either admit or deny liability, but Hanover has done neither and it avoids stating its position on whether the Days are legally entitled to recover. With regard to arbitration, where, as here, a party has not taken a position one way or the other, that party cannot be said to dispute an opposing party s position. In this case a major consequence of neither admitting nor denying liability is that Hanover effectively avoids advancement of the Days claim and it avoids having to engage in arbitration. Hanover avoids arbitration because, under the terms of the parties insurance contract, the only two disputes permitted to be arbitrated are disputes over whether the insured is legally entitled to recover and disputes over the amount of damages (see Plaintiffs Opening Brief Addendum at p. 24, Arbitration, Hanover Insurance Policy). If Hanover had denied liability or had asserted that the Days were not legally entitled to recover, the Days would have had a contractually recognized dispute to arbitrate. Because Hanover did not deny liability and because it did not take the position that the Days are not legally entitled to recover there is not a dispute 5

7 between the parties that falls under either of these two limited categories of arbitrable issues. The Days complaint of a delay and failure to settle a claim is clearly not one of the two types of disputes that can be arbitrated under the contract. Consequently, Hanover s unilateral imposition of delay cannot be resolved by way of the terms of the contract and Hanover s argument that the remedy of arbitration is available or required is without merit and is disingenuous. It is also evident by its absence from the record below that neither Hanover nor the Days engaged in or sought to engage in arbitration on the issue of delay and the aforesaid reason explains why. Additionally, and likewise, Hanover s reliance upon RSA 542:2 is misplaced because the statutory requirement of arbitration only applies when a dispute is mandated to be arbitrated by the terms of a contract or agreement. The Days don t have a contractually permitted dispute to arbitrate and so there is no statutory mandate for arbitration. Further, engaging in litigation as Hanover and the Days did in the trial court below is a waiver of the right to compel arbitration under the statute. See Second Congregation Soc'y v. Hugh Stubbins & Assocs., 108 N.H. 446 (1968). In dismissing the Days Petition for Declaratory Judgment, the trial court cited, as does Hanover, the case of Funai v. Metropolitan Property and Casualty Co. at 145 NH 642 (2000) in opposition to the Days arguments. But the Supreme Court s findings in that case focused on whether or not an insurer could be forced into arbitration where the contract language made it optional and required both parties agreement. That is not the issue in the instant case. 6

8 In dismissing the Days Petition for Declaratory Judgment, the trial court also cited, as does Hanover, the case of Furukawa v. Arbella Mutual Insurance Company, 794 N.E. 2d 1225 (Mass. App. 2003). That case is distinguishable from this case. The facts and context of that case were materially different. Massachusetts is a no-fault automobile insurance state. The issue of delay was not before that Court. In that case the Court noted that there was little evidence of proof of negligence by the alleged tortfeasor and that the tortfeasor s insurance was minimal. The Furukawa case did not condone perpetual delay or avoidance of a UM claim. While that Court wrote that a UM carrier might have a good faith reason to contest the tortfeasor s liability in relation to its coverage of excess damages, that decision does not give any consideration to a case where liability has been admitted by the tortfeasor or to a case of negligence per se as is the case before this Court. In dismissing the Days Petition for Declaratory Judgment, the trial court also cited, as does Hanover, the case of Matarese v. New Hampshire Municipal Association, 147 NH 396 (2002). That case involved a police officer on duty, who was injured in the course of her duties, wherein this Court ruled that the fireman s rule completely barred by law any right of recovery. Notably, there was a dissent in that case. But that is not the issue in this case insofar as there is no such bar to legal entitlement to recovery in this case. Widiss writes that the tortfeasor might be in a position to invoke a defense of limitations or some form of statutory immunity is relevant to the question of the right to enforce payment, but [it] does not affect the claimant's legal entitlement to recovery. Widiss, Uninsured and Underinsured Motorist Insurance Vol. 1, sec 7.14 (3 rd 7

9 Ed. 2005). Citing Allstate Insurance Co. v. Elkins, 77 Ill.2d 384, 396 N.E.2d 528 (Ill. 10/19/1979) (emphasis added). Hanover also argues that it had reason to believe that a medical condition caused the Days loss in this case and that it had a right to raise that defense against its insured. Although there was an initial rumor of a medical condition and a short-lived strategy and attempt by the tortfeasor to escape liability with that excuse, and although this was of great interest to Hanover, that rumor proved not to be true. Instead, the reality of a prosecution of Follett and her documented guilty plea to operating a vehicle under the influence of drugs replaced the rumor with contrary fact. This should have ended Hanover s investigation into the cause of the Days loss but it did not and Hanover has yet to notify the Days that its investigation is completed. Follett s plea should have constituted all the evidence that Hanover needed in order to decide liability in this case and the plea should have compelled Hanover to acknowledge that the Days were legally entitled to recover. She pleaded guilty because she was guilty. Hanover stubbornly refused to acknowledge it and, evidently, it still does. Additionally, the trial court should not have ignored the fact of the tortfeasor s admission of negligence and it should not have permitted Hanover to do the same. If the Widiss rule was the law, Hanover would have been compelled to acknowledge that the Days are legally entitled to recover in this case. Hanover would have been prohibited from delaying a decision on the grounds that it was continuing to investigate the case. It would have eliminated the obstacle of delay that the Days have encountered. Hanover could not have ignored the Days legal entitlement to recover 8

10 since 2008 and this case would not be before the Court. The Days would be presumed legally entitled to recover and the parties could have promptly addressed the value of the Days claim as a measure of damages which has been denied them for too long. Even if this Court declines to adopt the Widiss rule in general, on the facts of this case the Court ought not permit Hanover to prevail. The record of facts in this case established as a matter of law that liability of the tortfeasor was proven. Further, it should be evident that the Days claim has been improperly delayed and stalled for years without just cause. The trial court should not have dismissed the Days case. It should have granted the relief the Days sought against Hanover regardless of whether the Widiss rule advanced by the Days was applied. By their attorney, Respectfully submitted, The Estate of June M. Day, Byron S. Day and Stephanie L. Day /s/ Date: 3/16/11 Richard J. Joyal, Esq. NHBA #1289 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing have been provided to Mark W. Shaughnessy, Esq./Andrew B. Ranks at Boyle, Morrissey & Campo, P.C. at 650 Elm Street, Suite 303, Manchester, NH Dated: 3/16/11 Richard J. Joyal, Esq. 9

11 Reply Brief Addendum PETITION FOR DECLARATORY JUDGEMENT 11 PETITIONERS OBJECTION TO DISMISSAL 17 PETITIONERS MOTION FOR CLARIFICATION 19 AND RECONSIDERATION Page 10

12 THE STATE OF NEW HAMPSHIRE HILLSBOROUGH, SS. NORTHERN DISTRICT SUPERIOR COURT Docket No. Docket No. 09-E-0147 Estate of June M. Day, Byron S. Day and Stephanie L. Day all of 59 Grapevine Drive, Auburn, NH v. The Hanover Insurance Company Bedford Executive Office Park 2 Executive Office Park Drive, Bedford NH PETITION FOR DECLARATORY JUDGEMENT NOW COME the Petitioners, Byron S. Day as Executor of the Estate of June M. Day, Byron S. Day individually, and Stephanie L. Day, pursuant to New Hampshire RSA 491:22, with a Petition for Declaratory Judgment by which the Petitioners ask the Court to declare their rights pursuant to insurance policy contracts that they own and that were issued by and entered into with the Respondent, The Hanover Insurance Company, and in support thereof say as follows: PARTIES 1. That the Petitioners in this matter are the estate of the deceased June M. Day, her surviving spouse Byron S. Day and her daughter Stephanie L. Day, all of whom are insured under a contract of insurance with the Respondent (Hanover) that includes a standard primary uninsured/underinsured motorist (UM) automobile insurance policy and an additional umbrella policy which includes UM coverage*. 2. The Respondent is a national automobile insurance company with agents in New Hampshire, from which the Petitioners purchased the applicable automobile insurance and umbrella policies. *A copy of the insurance contracts is intentionally not attached insofar as it is believed that there is no portion of the contract which would address the issues in dispute herein. However, the contracts are available for submission to the Court and will be presented as evidence at the appropriate time or as the Court orders. 11

13 FACTUAL HISTORY 3. On the evening of September 18 th, 2007 June M. Day was killed on her way home in a head-on automobile accident caused by Lisa Follett, now or formerly of Methuen, Massachusetts. Lisa Follett had operated her vehicle across the median from the northbound lane of Interstate Route 93 in Hooksett, New Hampshire and onto the southbound lane into the path of the motor vehicle driven by June Day. New Hampshire State Police investigators determined that the Follett vehicle was airborne when it struck the Day vehicle. 4. Subsequent investigation by State authorities led to the discovery of evidence that, immediately prior to operating her motor vehicle from Massachusetts, and within an hour before the crash that killed June Day, Lisa Follett had improperly ingested a large quantity of the sleeping drug Zolpidem (brand name Ambien). Ambien is a hypnotic sleep inducing drug requiring a doctor s prescription and should not be taken except immediately prior to bed-rest for eight hours and only in the prescribed dosage. State laboratory tests determined that, about an hour after the crash, Follett s blood still contained double the amount of the prescribed dosage. There is no clinically acceptable level of Ambien in blood during waking hours. 5. Prior to the crash, several north-bound motorists had reported Follett s extremely erratic vehicle operation to the state police emergency call center on the route which covered the entire distance along the approximately 25 miles of that portion of the Route 93 northbound highway from the Massachusetts/New Hampshire state line to Manchester. 6. Approximately one year after the crash, in September 2008, the Petitioners acquired access to the evidence and investigation results which had accumulated in the interim. 7. Based upon the acquired evidence, a claim was made by the Petitioners, by letter of notice dated September 15, 2008, and sent to Lisa Follett s automobile insurer, the Commerce Insurance Company, (Commerce). The claim made was for the full amount of the limits of liability coverage under the Commerce automobile policy insuring the Follett vehicle. The claim was based upon the Petitioners assertion that Lisa Follett was solely responsible for June Day s death. 8. Upon presentation of the facts documenting Lisa Follett s voluntary drug intoxication at the time of the crash and of her criminal prosecution by the Merrimack 12

14 County, New Hampshire, Attorney, Commerce promptly agreed to pay the policy limits of its insurance coverage for the claim and it did so without giving any resistance. 9. Commerce raised no defenses and made no assertion of contributory fault either by right of subrogation or on behalf of Lisa Follett nor did Commerce at any time express that the matter involved a disputed claim. Further, at the time of payment of the settlement proceeds, Commerce did not require that the Release include language that the settlement was of a disputed matter. 10. Upon Commerce s proffer of its policy limits on November 6 th, 2008, the Petitioners promptly sought consent from Hanover to settle with Commerce. 11. The Petitioners demonstrated clearly to Hanover that there were no other parties legally liable for the harm that was caused and there were no other assets or legally liable sources from which additional contribution for damages could be sought. 12. Despite repeated and continuing effort by the Petitioners and despite Hanover having possession of the same information that the Petitioners and Commerce possessed about the facts of the case, for three months after Commerce had proffered its policy limits to the Petitioners, Hanover refused to give its consent to the Petitioners to allow the Petitioners to settle with Commerce. For three months Hanover ignored and delayed the Petitioners attempt to acquire its assent. 13. Hanover ultimately gave its assent to settle on February 13, 2009 but only after an aggressive legal effort was undertaken and pursued against Hanover by the Petitioners. 14. Subsequent to the settlement of the claim with Commerce, the Petitioners then sought to address settlement of the remaining unpaid loss with Hanover under the aforementioned applicable UM policies. (The Petitioners had given formal notice to Hanover of their UM claim five months earlier, by letter dated September 15 th, 2008.) 15. Now and since the completion of the settlement with Commerce on February 13 th, 2009, Hanover has and continues to refuse to engage in any settlement discussions under its UM policies with the Petitioners and it refuses to address and advance the Petitioners claim. 13

15 ISSUES IN DISPUTE 16. Hanover asserts that it need not address settlement of the Petitioners claim until the completion of the criminal prosecution process against Lisa Follett. 17. Hanover asserts that it has a right to continue the investigation into liability in this matter and that their investigation has been stifled because of the pending criminal proceedings. Hanover has taken the position that it has neither accepted nor denied liability in this matter and [its] investigation will continue asserting that the investigation cannot be completed until Ms. Follett s criminal matter is adjudicated. 18. It is this refusal by Hanover to address the Petitioners claims and refusal to advance the settlement of the Petitioners remaining unpaid loss that is the subject of the instant action. 19. The Petitioners posit that Hanover s position is asserted in bad faith and a breach of its contractual duties and that it is engaged in tactics of delay intended only to benefit itself to the unfair prejudice of the Petitioners. 20. The Petitioners dispute Hanover s position and assert that it is without merit and that Hanover has no right to take the position it has taken and that there is no statutory law, case law, administrative rule or contractual policy provision that would support Hanover s position or that establishes its right to refuse acknowledgement and settlement of its obligations to the Petitioners as the provider of UM coverage. 21. The Petitioners assert that liability, as that phrase is understood under the law, is a matter that is to be addressed between the tort-feasor and the victim of the tort. In this case the only tort-feasor is Lisa Follett. If the tort-feasor does not contest liability and agrees to pay damages to the extent assets are available to be paid, underinsured coverage is looked to for payment of the balance of damages incurred, to the extent that coverage amounts are provided. There is no provision for the UM carrier to put itself into the position of the tort-feasor and contest liability where the tort-feasor herself does not have a legitimate defense and does not attempt to defend against liability. 22. Further, where there is a separate proceeding involving the criminal prosecution of the tort-feasor, the outcome of the criminal case does not have a bearing on whether there is civil liability for the act complained of, regardless of the success or failure of the State to 14

16 prove its case beyond a reasonable doubt and regardless of whether a plea negotiation results in a guilty plea. Juxtaposed with the criminal court, in a civil court only the mere probability that the act complained of is more likely than not to have been the proximate cause of an occurrence or loss is sufficient to warrant a determination of liability. 23. When the insurer providing the uninsured or underinsured motorist coverage consents to or approves a settlement by an insured with a tort-feasor 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 coverage benefits on the grounds that an insured is not legally entitled to recover for damages caused by an uninsured motorist. See Bentley v. Grange Mutual & Casualty Ins. Co. 119 Ohio App. 3d 93, 694 N.E. 2d 526,530 (1997). In other words, once Hanover assented to settlement with Commerce it was contractually bound to pay the balance of the value of the Petitioners claim under its UM coverage. 24. Hanover s reliance upon the notion that it has a right to contest liability for the acts of the tort-feasor and the right to delay engagement in the process of settling the UM claim until completion of criminal proceeding against the tort-feasor is therefore without merit or support. Hanover has no such right. The only thing that Hanover can and must do is to work with its insured to establish the value of the loss and to pay it. 25. There is no right in the law or basis in the facts of this case for Hanover to insist upon negotiating, arbitrating or litigating the issue of liability or for resting its position on the eventual outcome of a criminal prosecution of the tort-feasor. 26. Accordingly, Hanover must address the Petitioners claim and may not delay the process of settlement. 15

17 WHEREFORE, your Petitioners, the Estate of June M. Day, Byron S. Day and Stephanie L. Day, respectfully pray that the Court: A. Find that the Respondent is obligated to address and participate in settlement of the Petitioners claim and loss without delay, reservation or conditions; B. Find that the Respondent has improperly ignored and delayed the addressing of and conducting of settlement of the Petitioners claim with the Petitioners; C. Award the Petitioners their attorney fees pursuant to RSA 491:22; and, D. Grant such other and further relief as may be just and proper 4/2/09 Byron S. Day, Executor of the Estate of June M. Day By their attorney, Byron S. Day, Individually Byron S. Day on behalf of Stephanie L. Day with POA 4/2/09 /s/ Richard J. Joyal STATE OF NEW HAMPSHIRE COUNTY OF HILLSBOROUGH Personally appeared the above-named Byron S. Day as Executor, individually, and with power of attorney, and made oath that the foregoing statements so subscribed are true to the best of his knowledge and belief. Before me, Justice of the Peace/Notary Public 16

18 THE STATE OF NEW HAMPSHIRE HILLSBOROUGH, SS. NORTHERN DISTRICT SUPERIOR COURT Docket No. 09-E-0147 Estate of June M. Day, Byron S. Day and Stephanie L. Day v. The Hanover Insurance Company PETITIONERS OBJECTION TO DISMISSAL NOW COME the Petitioners, by and through their attorney, Richard J. Joyal, with an Objection to the dismissal of the declaratory judgment petition filed by the Petitioners herein, and in support thereof say as follows: 1. That the Petitioners declaratory judgment action sought to have the Respondent ordered to engage in the ordinary settlement of claims process under the parties uninsured motorist coverage insurance policy. 2. That a dismissal of the declaratory judgment petition without a ruling as to whether or not the Petitioners are entitled to have their claim processed, negotiated and resolved pursuant to the parties contract will leave the question unanswered. 3. That the Court s reasoning for dismissal of the declaratory judgment was not based upon an understanding of the actual relief sought by the Petitioners, nor was it based upon actual legal precedent specifically relevant to the circumstances involved in this case, as explained in the Petitioners Motion for Clarification and Reconsideration filed simultaneously herewith; 4. That after nearly three years, Hanover Insurance has yet to take a position either acknowledging or denying the Petitioner s claim for UM coverage compensation, neither agreeing nor refusing to engage in arbitration, nor otherwise stating one way or the other whether it will accept or deny the Petitioners claims. This refusal and failure by Hanover to state a position, combined with a dismissal of the instant action seeking the Court s ruling on whether the Petitioners are entitled to compel Hanover to take a position and proceed with the Petitioners claim, will leave the Petitioners in limbo and without a remedy short of the institution of a legal action against Hanover Insurance for breach of contract. 17

19 5. That a dismissal of the petition for declaratory judgment, without affording the Petitioners a determination of the Petitioners rights under the circumstances as they exist in this case would be unfair, unfairly prejudicial and would aggravate the Petitioners loss. WHEREFORE, your Petitioners respectfully pray: A. That the Court not dismiss the Petition for Declaratory Judgment for the reasons set forth herein and in the Petitioners Motion for Clarification and Reconsideration filed simultaneously herewith; and, B. For such other and further relief as may be just and proper. By their attorney, Respectfully submitted, Estate of June M. Day, Byron S. Day and Stephanie L. Day Date: 8/19/10 /s/ Richard J. Joyal, Esq. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been this day provided to Gerard O. Fournier, Esq., at 130 Middle Street, Portland, ME Dated: Richard J. Joyal, Esquire 18

20 THE STATE OF NEW HAMPSHIRE HILLSBOROUGH, SS. NORTHERN DISTRICT SUPERIOR COURT Docket No. 09-E-0147 Estate of June M. Day, Byron S. Day and Stephanie L. Day v. The Hanover Insurance Company PETITIONERS MOTION FOR CLARIFICATION AND RECONSIDERATION NOW COME the Petitioners, by and through their attorney, Richard J. Joyal, with a Motion for Clarification and Reconsideration of the Court s Order of August 16, 2010, and in support thereof say as follows: 1. This Motion for Clarification and Reconsideration is filed because the Petitioners believe that the Court has misunderstood the essence of the Petitioners petition and has misapplied the law. Rule 59-A(2) Superior Court Rules. 2. In the first paragraph of its order the Court wrote that the Petitioners contend that Hanover s consent to settlement gives the Petitioners a legal entitlement to uninsured motorist coverage. This is incorrect and it is not the Petitioners contention. The Petitioners contend that it is the existence of the contract for uninsured motorist insurance which gives the Petitioners a legal entitlement to coverage, not the fact of consent to settlement. In this case and under its particular circumstances wherein Hanover extensively participated in the settlement with the tortfeasor and consented, the Petitioners do contend that Hanover has no legitimate basis to assert that the Petitioners are not legally entitled to recover damages under the existing UM policy but even before the issue of legal entitlement to recovery is reached, the Petitioners first contention is that Hanover should not be permitted to delay the Petitioners claim to UM coverage by using the argument that Hanover needed years to complete their investigation and must await the outcome of a criminal prosecution of the tortfeasor. 3. Under the heading of Background, the Court wrote that the Petitioners filed the present request for declaratory relief because Hanover has yet to pay the Petitioners claim for uninsured motorist benefits. This is not the reason why the declaratory judgment 19

21 petition was filed. The reason the Petitioners filed the declaratory judgment petition was because Hanover has failed to do anything relative to the advancement of or the resolution of the Petitioners claim. It is not because Hanover has yet to pay the claim. It is because Hanover has refused to participate in the advancement of the Petitioner s claim at all. Therefore, and because Hanover would not deal with the claim, the Petitioners sought to have this Court find that Hanover has a contractual and legal duty to deal with the claim and for the Court to compel Hanover to do so, as Hanover should have done in the ordinary course and under the ordinary claim resolution process. 4. The Court went on to write that the Petitioners say payment from Hanover is due now based upon the settlement with Follett s insurer. The Petitioners have not pleaded that payment is due now, the Petitioners have pleaded that they want process now. Although, obviously the Petitioners want payment sooner, not later, the Petitioners realize and know that they cannot get to the point of payment without Hanover s participation in the process and that they have not gotten to that point because Hanover has avoided doing anything with the claim that would allow the claim to get to the point of payment. The claim has been dormant and in limbo for years while Hanover s investigation continue[d]. 5. Accordingly, the Court has misconstrued the Petitioners claim and the Petitioners basis for seeking declaratory relief. The petition was not filed for the purpose of ordering Hanover to pay the claim, nor was it filed for the purpose of forcing a particular payment at a particular time, but rather and primarily, it was filed with the intention of forcing Hanover to engage in the process of settling the claim, be that through negotiation, arbitration or otherwise. The Petitioners want a finding and order from this Court that Hanover has a contractual duty to do so and that the Petitioners are legally entitled to bring the claim forward. 6. The Court also misconstrued Hanover s position. Hanover s position was that it would not address the claim and would continue its investigation until such time as the criminal prosecution of Lisa Follett had been completed. Hanover argued that the outcome of the criminal prosecution and the fact that a prosecution was being engaged in justified its delay in moving forward on the Petitioners claim. The court did not appear to consider this in its ruling at all. The question left unanswered by the Court s omission was whether Hanover could simply sit back and do nothing on the grounds that there was a criminal 20

22 process underway against Follett. The Petitioners asserted that the criminal case outcome should not delay the UM claim and that it was not dispositive of whether they were legally entitled to recover for civil damages caused by the tortfeasor. 7. Further, the Petitioners did not and do not assert that the outcome of payment following consent to settle was preordained, as the Court put it. The Petitioners recognize that the results of the UM settlement process are uncertain and not necessarily predictable. However, the problem is that the claims settlement process has never even been begun because Hanover would not participate in it. This is why and it is the underlying basis for the Petitioners bringing the declaratory judgment before the Court in the first place. 8. What the Petitioners want is for the Court to find that Hanover did not participate in good faith in the settlement process of the Petitioners claim. The Petitioners assert that Hanover s refusal to participate in the settlement process is basically unfair, improper, inconsistent with the parties insurance contract and inconsistent with New Hampshire insurance regulations which require good-faith effort in the settlement of claims. 9. The Petitioners do not claim or assert that the obligation to engage in good faith settlement of claims is the same as the obligation to pay any particular amount of uninsured motorist benefits at a particular point in time. 10. The Petitioners do not assert that Hanover s consent to the settlement with Follett and Commerce Insurance obligated Hanover to pay a particular sum certain, but it does obligate Hanover to at least deal with the Petitioners claim. 11. The Petitioners do continue to assert and do maintain that Follett s liability did become moot after the settlement with her and that upon such facts as actually exist in this case, the Petitioners are legally entitled to recover from their UM insurance coverage especially because of Hanover s consent and lengthy participation in the settlement process with Follett. But where the Court is wrong is in failing to distinguish between the Petitioner s claim that they are legally entitled to recover damages from the tortfeasor from the issue of being paid a particular amount or to have an amount paid now. Although the payment of a claim for UM coverage is not preordained, the right to coverage is preordained. It is preordained that the Petitioners have a contractual right to seek coverage and it is preordained that the there is no legal impediment to their right to coverage under the parties insurance contract. The Court did not seem to make the distinction between the 21

23 legal right to recover against the tortfeasor and the different issue of a right to any particular amount of UM coverage. Coverage is an admitted fact in this case because there is a contract for coverage in existence. This is not to say how much UM money should or will be paid nor when the amount would be paid but Hanover ought not be permitted to simply avoid dealing with the claim, as has been the case and as appears to be what this Court is effectively permitting it to do by its Order. The delay and avoidance is wrong and unfair and gives Hanover a prejudicial advantage over the claimant. 12. The Court s order also does not distinguish the right to proceed with the claim (i.e. a legal right to seek recovery from Hanover and prove the claim) from Hanover s attempt to unilaterally decide Follett s liability before it would even agree to permit the Petitioners to prove their claim. There is a big difference between being allowed to proceed with the proof of a claim and being denied the opportunity to proceed altogether. In this case Hanover has denied the Petitioners the opportunity to proceed altogether, and, Hanover has never denied the claim nor otherwise taken any position other than expressing an intention to continue to investigate. The Court s order does not address this stalemate but it needs to be addressed and the Petitioners have been asking and herein again ask the Court to address and remedy it. 13. With respect to the law, the Petitioners assert that the cases cited by the Court are inapposite and that those cases do not stand for the proposition that the Petitioners are not legally entitled to recover. 14. The Court cites the case of Matarese v. New Hampshire Municipal Association, 147 NH 396 (2002). That case involved a police officer on duty that was injured in the course of her duties, wherein the Supreme Court ruled that the fireman s rule completely barred by law any right of recovery. Notably, there was a dissent in that case. But that is not the case before this Court insofar as there is no such bar to legal entitlement to recovery in the case before this Court. 15. That the Court also cites the case of Funai v. Metropolitan Property and Casualty Co. at 145 NH 642 (2000). In that case the Supreme Court s findings were focused on the issue of arbitration and whether or not an insurer could be forced into arbitration where the contract language made it optional and required both parties agreement. That is not the issue in the instant case. 22

24 16. That with regard to the Furukawa v. Arbella Mutual Insurance Company, 794 N.E. 2d 1225 (Mass. App. 2003), the law in Massachusetts is distinguishable insofar as Massachusetts is a no-fault automobile insurance state, and in that case the Court noted that there was little evidence of proof of negligence by the alleged tortfeasor and further, and perhaps most importantly, the Furukawa case merely determined that the insurer had not given up its right to arbitrate by having consented to the victim s settlement with the tortfeasor. That court s reference to legal entitlement to recover was dicta. 17. That in none of these cases is there a situation where the victim s insurer has simply ignored and stalled the underinsured victim s request to proceed with the UM claim such as is the situation in the instant case. 18. That notably, as mentioned above, Hanover s primary explanation and justification for its delay in proceeding with the Petitioners claim was its assertion that it was awaiting the outcome of the criminal process against Follett. The Court has inexplicably ignored this issue in its order although it was argued and fully addressed by the Petitioners and Hanover in their respective pleadings. The Petitioners argued that the criminal process was irrelevant to whether or not Hanover ought to be compelled to allow the ordinary settlement process to proceed between it and the Petitioners. Why, then, the Court ignored this issue is unclear, since it seemed to be Hanover s primary excuse and justification for delay. Nevertheless, since the time that this matter was submitted to this Court for consideration, the issue of the criminal prosecution of Follett has become unavailable as an excuse, justification or reason for Hanover s still continuing refusal to permit the Petitioners claim to proceed through the settlement process. As a matter of fact, on April 23, 2010, Lisa Follett pleaded guilty to operating her motor vehicle under the influence of drugs in the collision that caused June Day s death. The fact of the guilty plea to driving under the influence of drugs should not only have ended any argument that the tortfeasor was not responsible and liable for the cause of Petitioners loss, but it should also have ended Hanover s argument that it needs to continue its investigation. Not surprisingly to the Petitioners, Hanover has remained quiet about the guilty plea and it has yet to end its so called investigation into liability in this matter or express any willingness to proceed with the Petitioners claim or candidly inform the court of this change in events. (Note: It would be unfair for Hanover to now claim that the end of the criminal process moots the 23

25 issues in this case. The delay in the civil justice system should not be used to reward recalcitrance at the expense of the party seeking sooner relief from it.) 19. Lastly, as a basis for denying the Petitioners motion for summary judgment, the Court ruled in its Conclusion that Hanover s assent to the settlement with Follett and her insurer does not obligate it to pay the Petitioners under the uninsured motorist provision of the insurance policy. As a blanket statement and ruling, this is just wrong. Assent to settlement may very well obligate a UM payment and in the instant case it certainly triggered the right of the Petitioners to seek UM coverage for payment and it certainly obligated Hanover to deal with the claim. In any event, the obligation to pay is not simply and solely based upon the consent to settle. The obligation to pay is based upon proof of the claim under the terms of the UM contract. Upon the assent to settle and release, the underinsured victim is, at least, entitled to turn to the UM carrier to address a claim for losses not paid by the tortfeasor. In this case Hanover has simply not dealt with the Petitioners UM claim; call it ignored, delayed, avoided or whatever but the Petitioner s effort to proceed with the UM claim has never been advanced because Hanover won t let it. As it stands the Petitioners claim is like one hand clapping. If the Court s ruling were to stand it would effectively eliminate the Petitioners contractual right to bring and prove their claim for UM coverage after assent to settlement and in this case it would permit Hanover to do nothing by way of ignoring the claim. This cannot be the correct result and it isn t. 20. The Petitioners respectfully request that the Court recognize, acknowledge, agree and order that the Petitioners have a right to have their claim addressed, advanced, processed and to the good-faith involvement by Hanover in the process of claims settlement by finding that the Petitioners are legally entitled to it and find that Hanover has not done so. 21. The Court is requested to review the actual and specific prayers for relief that were pleaded by the Petitioners and which were and are intended to secure from this Court an order that Hanover Insurance engage in the proper UM claim settlement process. To the extent that counsel for the Petitioners has heretofore in-artfully expressed their position, it is respectfully requested that the Court reconsider its understanding of their position as attempted to be better expressed herein; 24

26 22. There is no good reason why the Court would not order Hanover to address and advance the Petitioners UM claim; 23. That as such the Petitioners should be entitled to a summary judgment in their favor and to a declaratory judgment in their favor consistent therewith. WHEREFORE, your Petitioners respectfully pray: A. That the Court reconsider its decision of August 16, 2010; B. That the Court clarify its understanding of the specific requests for relief sought by the Petitioners and consistent therewith amend the findings and rulings made by the Court in its last order; C. That the Court grant summary judgment in favor of the Petitioners by finding the Petitioners are entitled to have their claim processed in the ordinary course by the Respondent, Hanover Insurance; D. That the Court find that Hanover failed to properly address the Petitioners claim, E. That the Court find that Hanover has acted in bad faith; F. Grant the Petitioners prayers for relief as pleaded; and, G. For such other and further relief as may be just and proper. By their attorney, Respectfully submitted, Estate of June M. Day, Byron S. Day and Stephanie L. Day Date: 8/19/10 /s/ Richard J. Joyal, Esq. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been this day provided to Gerard O. Fournier, Esq., at 130 Middle Street, Portland, ME Dated: Richard J. Joyal, Esquire 25