Bartlett v. Commerce Insurance
167 N.H. 521
| N.H. | 2015Background
- Bartlett was injured in a 2004 New York motorcycle accident; tortfeasor’s liability insurer (Allstate) paid its $100,000 policy limit in 2009.
- Potential UIM layers: Foremost (primary, NJ-issued motorcycle policy, $250,000), Progressive (Bartlett’s NH motorcycle policy, $250,000, excess), Commerce Auto (Bartlett’s NH auto policy, $250,000, excess for nonowned vehicles), and Commerce Umbrella (home umbrella, $1,000,000 UIM).
- Bartlett released Allstate and accepted its $100,000 without recovering from Foremost; she later sued Foremost, Progressive, and Commerce in New York; that suit was dismissed and she sought declaratory relief in NH state court.
- Trial court held: Foremost claim time‑barred under NJ six‑year statute; Progressive’s consent‑to‑settle clause barred excess recovery because Bartlett settled without Progressive’s consent; court also held Commerce must "drop down" to primary because Foremost was not "available/collectible."
- NH Supreme Court affirmed the statute‑of‑limitations ruling and the Progressive forfeiture, but reversed the drop‑down ruling as to Commerce, holding Foremost’s UIM remained "available/collectible" despite Bartlett’s forfeiture.
Issues
| Issue | Bartlett's Argument | Insurer's Argument | Held |
|---|---|---|---|
| Which state’s SOL governs Bartlett’s UIM claim against Foremost? | New Hampshire SOL (3 years) applies | New Jersey SOL (6 years) applies because Foremost/NJ connection | NJ six‑year SOL governs; Foremost’s claim time‑barred (affirmed) |
| Does settling with Allstate without notifying/obtaining Progressive’s written consent forfeit Bartlett’s right to Progressive excess UIM? | Progressive’s silence amounted to waiver | Consent‑to‑settle clause bars recovery when insured settles without written consent; silence is not waiver | Forfeiture affirmed; Progressive’s consent provision precluded recovery |
| Do the terms "available" / "collectible" in Commerce’s other‑insurance clause require Commerce to "drop down" because Foremost coverage was not actually collected by Bartlett? | Those words are ambiguous and should be read to mean "actually available/collected," so Commerce must drop down | "Available/collectible" means coverage reasonably obtainable; Foremost coverage remained available/collectible despite Bartlett’s forfeiture | Reversed: Commerce does not drop down; Foremost coverage was "available/collectible" as a matter of policy interpretation |
| Effect of plaintiff’s forfeiture on order of exhaustion and apportionment among excess layers (Commerce Auto and Umbrella)? | Bartlett argued Commerce should drop down and then other layers follow | Commerce argued excess status continues until actual exhaustion and proportional application by remand | Court declined to decide apportionment/exhaustion sequencing; remanded for trial court to address remaining allocation issues |
Key Cases Cited
- Waterfield v. Meredith Corp., 161 N.H. 707 (2011) (procedural vs. substantive law choice‑of‑law framework; residency for SOL decided as of date cause of action arose)
- Metropolitan Prop. & Liability Ins. Co. v. Walker, 136 N.H. 594 (1993) (UIM claims sound in contract and accrue on insurer’s denial)
- Ellis v. Royal Ins. Co., 129 N.H. 326 (1987) (framework for insurer credit/allocation among layers)
- Gianola v. Continental Cas. Co., 149 N.H. 213 (2003) (waiver in insurance context requires insurer conduct recognizing policy validity; silence insufficient)
- White v. Vermont Mut. Ins. Co., 167 N.H. 153 (2014) (rules for interpreting insurance policy language; plain meaning governs absent ambiguity)
- Bates v. Phenix Mut. Fire Ins. Co., 156 N.H. 719 (2008) (contract interpretation focuses on parties’ intent as expressed in policy language)
- Garcia v. Rivera, 879 F. Supp. 170 (D.P.R. 1995) (excess clause holding that excess insurer’s liability triggers only after primary has paid or been held liable)
- Hoffman v. United Servs. Auto. Ass'n, 671 F. Supp. 922 (D. Conn. 1987) (construed "available" in excess clause as "reasonably available" rather than "actually received")
- Benzer v. Iowa Mutual Tornado Ins'n Ass'n, 216 N.W.2d 385 (Iowa 1974) (construed "available" to mean "actually available/collected" in UIM excess clause)