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Pawtucket Mutual Insurance Co. v. Hartford Insurance Co.12/24/2001
not own shall be excess over any other collectible insurance."
Based upon an agreed statement of facts, the trial court ruled that Hartford provided primary liability coverage for the May 1997 accident and that Pawtucket provided excess coverage. Hartford's motion for reconsideration was denied, and this appeal followed.
I.
Hartford argues that the trial court erred in concluding that its policy provided any coverage for the accident and, alternatively, in ruling that its policy affords primary coverage. Where, as in this case, the trial judge decided the case on stipulated facts and all of the exhibits are available for our review, we are in as good a position as the trial court to decide the case. Masse v. Commercial Union Ins. Co., 136 N.H. 628, 632 (1993). Accordingly, the customary deference we accord to a trial court's findings of fact is slackened, and we review the case under a broadened standard of review. Hillside Assocs. of Hollis v. Maine Bonding & Cas. Co., 135 N.H. 325, 331 (1992).
The interpretation of an insurance policy is ultimately an issue of law for this court to decide. Allstate Ins. Co. v. Armstrong, 144 N.H. 170, 172 (1999). We look to the plain and ordinary meaning of the policy's words in context and construe the terms of the policy as would a reasonable person in the position of the insured based upon more than a casual reading of the policy as a whole. Id. Thus, we will enforce a policy provision that limits an insurer's liability when the policy language is clear and unambiguous. Id. Ambiguity exists where reasonable disagreement between the contracting parties is possible with regard to the meaning or application of the policy's terms. Concord Gen. Mut. Ins. Co. v. McCarty, 135 N.H. 316, 318 (1992).
II.
We turn first to whether the Hartford policy affords any coverage to the May 1997 accident. Hartford argues that Buckman is not an insured under NENSCO's business auto policy and thus the accident is not covered. The Hartford policy lists NENSCO as the named insured and further provides that anyone else is an insured while using a covered auto, with NENSCO's permission, that NENSCO owns, hires or borrows. The parties do not dispute, and the record supports, that Buckman had permission to use the vehicle and that NENSCO did not own or borrow the car. Therefore, the determinative issue is whether NENSCO hired the rental vehicle.
Hartford contends that Buckman, not NENSCO, hired the vehicle because: (1) Buckman was not acting as NENSCO's agent at the time he rented the vehicle; (2) he completed the paperwork in his own name and used the vehicle for his personal use while on vacation; and (3) NENSCO did not acquire substantial possession, dominion, control or the right to direct the vehicle's use. Hartford's arguments are unpersuasive. The relevant inquiry here is whether NENSCO, through Buckman, hired the vehicle, not whether Buckman used the vehicle within the scope of his employment or under NENSCO's control.
Because the policy does not define the term "hire," we give it its ordinary meaning. See Allstate Ins. Co., 144 N.H. at 172. The word "hire," in common usage, is defined as "to engage the temporary use of for a fixed sum." Webster's Third New International Dictionary 1072 (unabridged ed. 1961).
Under the common definition of "hire" and the facts above, it is clear that NENSCO, via Buckman, contracted and paid for the temporary use of the rental vehicle. A corporate entity can only operate through individuals. In this case, NENSCO was operating through Buckman. The facts show that NENSCO had specifically authorized Buckman to use his company credit card to rent
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