Estate of Day v. Hanover Insurance, 162 N.H. 415

Sept. 18, 2007 Day fatally injured in Route 1-93 collision; Follett’s vehicle crossed median and struck Day’s vehicle.
Day was insured by Hanover under automobile liability and umbrella policies, both containing underinsured motorist coverage.
Follett was insured by Commerce with $100,000 BI limit; petitioners asserted a claim against Commerce’s policy.
Commerce offered its policy limit in Nov. 2008; Hanover consented to the settlement Feb. 17, 2009 while reserving the right to continue liability investigation.
Petitioners accepted the Commerce settlement and released Follett and Commerce; petitioners then sued Hanover seeking a ruling on whether Hanover’s consent precluded coverage liability.
Trial court granted summary judgment for Hanover, holding consent did not preclude Hanover from contesting UM coverage liability; petitioners appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does Hanover’s consent to settlement preclude contesting UM coverage liability?	Day asserts settlement consent bars Hanover from disputing entitlement to UM benefits.	Hanover argues consent waives subrogation rights but does not bar contesting coverage entitlement.	No; consent does not preclude contesting liability for UM coverage.
Whether policy terms clearly allow Hanover to contest entitlement despite consent to settlement	Day relies on broad interpretations of consent to settle.	Policy terms are clear and unambiguous; consent affects subrogation but not entitlement questions.	Policy terms unambiguous; consent does not preclude entitlement contest.

Matarese v. N.H. Mun. Assoc. Prop.-Liab. Ins Trust, 147 N.H. 396 (2002) (policy terms clear and unambiguous use in UM context)
Funai v. Metropolitan Property & Casualty Co., 145 N.H. 642 (2000) (consent to settle not correlation with arbitration tradition)
Furukawa v. Arbella Mutual Insurance Co., 794 N.E.2d 1225 (Mass. App. Ct. 2003) (insurer may settle without waiving right to contest liability)