133 N.H. 279 | N.H. | 1990
In these cross appeals from an order of the Superior Court (Hollman, J.) on cross petitions for declaratory judgment, an uninsured motorist carrier excepts to an award of interest from the date of the writ in an underlying tort action that had resulted in a verdict held to bind both insurer and insured, and the insured excepts to the ruling that it was so bound. We reverse as to interest but affirm that the underlying verdict bound the insured.
For the source of the tort judgment’s preclusion of further litigation between the present parties over the extent of the car operator’s liability to the decedent, we need look no further than the terms of National Grange’s policy. The statement of its Coverage J provides, insofar as relevant, that “[n]o judgment against [an underlying tort defendant]... shall be conclusive, as between the insured and the company ... unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.” This language reflects an underlying contractual assumption that as a general rule such a judgment will bind the parties upon satisfaction of the written consent condition, the clear object of which parallels the privity requirement of collateral estoppel, see Daigle v. City of Portsmouth, 129 N.H. 561, 571, 534 A.2d 689, 694 (1987), in shielding the insurer against the effect of any proceeding in which its interest was not protected. In the instant case, the trial court found that National Grange’s behavior had waived the written consent requirement, a conclusion that National Grange does not appeal and the administratrix does not contest. Given the trial court’s further finding that the administratrix had a full and fair opportunity to litigate the amount of the damages for which the tortfeasor was responsible, there is no apparent reason to refuse to give effect to the underlying assumption of the parties’ insurance contract, that the judgment on the verdict setting the damages against the tortfeasor would bind them both as to the amount of those damages.
Two statutory sources have been cited. The administratrix invokes the terms of the statutory obligation upon liability insurers to provide uninsured motorist coverage, RSA 264:15, I (Supp. 1989), the object of which is to protect “persons ... who are legally entitled to recover damages from owners or drivers of uninsured motor vehicles . . . .” Id. She argues that “damages” can be understood to include loss of the use of compensating money, and should therefore be so understood in this statute, so as to create an obligation to pay interest on any compensating sum as from the date of the writ in any underlying action against the tortfeasor.
While there is more than one possible response to this position, its principal weakness appears as soon as we apply the rule that statutes in pari materia are to be construed together. See Hayes v. Hanson, 12 N.H. 284, 290 (1841). This leads us to examine RSA 524:l-b, which provides generally for the addition of interest to civil verdicts, and which expressly distinguishes “interest” as outside the scope of “pecuniary damages.” In the absence of some textual basis for reading “damages” more expansively in RSA 264:15, I (Supp. 1989), coherence demands that the term as used in § 15, I, also be construed to mean the measure of the bodily injury to be compensated, to the exclusion of any interest.
That leaves her entitlement to interest dependent on RSA 524:l-b. As to this, National Grange concedes that the verdict in the underlying action, binding as it is on both parties to this proceeding, may be taken as equivalent to the arbitrator’s award that would otherwise have set the amount payable under the uninsured motorist coverage. This, then, in accordance with Hackman, is a “verdict or finding” within the meaning of section 1-b, and from its date, the statutory interest is to be computed. See Hackman, supra at 94-95, 261 A.2d at 438. The case will be remanded for an appropriate recbmputation.
The administratrix also seeks a mandate for the entry of costs and attorney’s fees under RSA 491:22-b. Whatever may be the merits of her claim to be so entitled, however, there is no indication in the record that she raised it in the trial court, either before verdict or after it, and it must be treated as impermissibly raised in the first
Affirmed in part; reversed in part; remanded.