Docket No. 2010-0370

The State of New HampshireSupreme Court

PROGRESSIVE NORTHERN INSURANCE COMPANY,Petitioner-Respondent,

v.

ARGONAUT INSURANCE COMPANY,Respondent-Appellant,

v.

CRAIG KELLY, MARTIN MORASSE and LINDA MORASSE,Respondents-Respondents.

REPLY BRIEF FOR RESPONDENT-APPELLANTARGONAUT INSURANCE COMPANY

PRIMMER PIPER EGGLESTON & CRAMER106 Main StreetPost Office Box 349Littleton, New Hampshire 03561603-444-4008

Attorneys for Respondent-AppellantArgonaut Insurance CompanyOf Counsel:

Gregory M. Eaton

Appeal Pursuant to Rule 7 from The State of New Hampshire,Merrimack County Superior Court, Docket No. 09-E-0235

To Be Argued By:Gregory M. Eaton

TABLE OF CONTENTS

Pages TABLE OF AUTHORITIES……………………………………………………………………ii QUESTIONS PRESENTED…………………………………………………………………….1 I. REPLY TO PROGRESSIVE’S POINT I REGARDING REGULAR USE…………1 II. REPLY TO PROGRESSIVE’S POINT II REGARDING EXCESS COVERAGE ………………………………………………………………….7 III. REPLY TO PROGRESSIVE’S POINT III REGARDING DEFENSE....…………...7 IV. REPLY TO CRAIG KELLY’S BRIEF……………..………………………………….9

V. REPLY TO THE MORASSE MEMORANDUM……………………………………11

CONCLUSION………………………………….……………………………………………...12 AFFIDAVIT OF SERVICE BY PRINTERS …………………………………………..…….13 ADDENDUM ..…………………………………………………………………………………14

R.S.A. 259:61 .………………………………………………………………….……….15

Decision Appealed From....…………………………………………………………….16

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TABLE OF AUTHORITIES Cases: Pages Aler v. Travelers Indemnity Co., 92 F.Supp. 620 (D. Md. 1950)…………..………..…………..………………..……………....4 Allstate Ins. Co. v. Chatigny, 103 N.H. 81, 83 (1960)……………………...…………………………………………………3 Bossee v. Litton Unit Handling Systems, 646 F.2d 689, 694 (1st Cir. 1981)………………………………………………………………6 Connecticut Indemnity Co. v. Cordasco, 535 A.2d 631, 632 (Pa. Super. 1987)………………………………………………………..6, 7 Cook v. Cigna Ins. Co., 139 N.H. 486, 487, 489 (1995)………………………………………………………………...2 Globe Indemnity Co. v. Jordan, 634 A.2d 1279, 1283 (Me. 1993) ……………………………………………………………...7 Hilario v. Reardon, 158 N.H. 56, 60 (N.H. 2008)....….…………………………………………………………….8 Hillside Ass’n of Hollis v. Maine Bonding & Casualty Co., 135 N.H. 325, 330 (1992) ……………………………………………………………………..8 In re James N., 157 N.H. 690, 693 (N.H. 2008) ……………………………………………………………….8 LeFavor v. Ford, 135 N.H. 311, 313 (1992)……………………………………………….……………………..5 Oklahoma Farmers Union Mut. Ins. Co. v. John Deere Ins. Co., 967 P.2d 479, 481-82 (Okla. Civ. App. 1998) ………………………………………………...7 Plourde Sand & Gravel Co. v. JGI Eastern, Inc., 154 N.H. 791, 799 (N.H. 2007) ……………………………………………………………….8 Rodriguez v. Northern Telecom, 1995 U.S. Dist. LEXIS 8892 (D.N.H. June 15, 1995)...………………………………………6 Spaulding v. Concord Gen. Mut. Ins. Co., 122 N.H. 515, 516 (1982)……………………………………………………………………..3

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Spurlin v. Merchants Ins. Co. of New Hampshire, 866 F.Supp. 57, 61-62 (1994)…………………………………………………………………7 State v. Jiminez, 137 N.H. 450, 451 (1993)……………………………………………………………………..8 Universal Underwriters Ins. Co. v. Allstate Ins. Co., 134 N.H. 315, 319 (1991)…………………………………………………………………...8, 9 Volpe v. Prudential Prop. & Cas. Inc. Co., 802 F.2d 1, at *2, *3, *4 (1st Cir. 1985) ......………………………………………………passim Wallace v. State Farm Mut. Auto Ins. Co., 349 P.2d 789, 792 (Ore. 1960) ..…………………………….…………………………….…3, 4 New Hampshire Supreme Court Rules: N.H. Sup. Ct. R. 16(3)(b)………………………………………………………………………….8 N.H. Sup. Ct. R. 16(a)....………………………………………………………………………..…8 Relevant Statute: R.S.A. 259:61………………………………………………………………………………….7, 14 Other: Black’s Law Dictionary 1324 (6th Ed. 1990)…………………………………………………………………………………….1 Webster’s Third New Int’l Dictionary 1955 (Unabridged Ed. 2002)…………………………………………………………………………...1

QUESTIONS PRESENTED

For the convenience of the Court, Argonaut Insurance Company (“Argonaut”) reiterates

the questions presented in its Appellant’s Brief (“Appellant’s Brief” or “Argonaut Brief”).

1. Did the Superior Court err in finding that the accident vehicle driven by Craig

Kelly was not furnished for regular use by Tom’s Auto Sales (“Tom’s”), and that coverage under

the Argonaut Policy issued to Tom’s was not therefore limited to $25,000 under the “Additional

Garage Limitations” endorsement? See Appendix (“A.”) at 23-27.

2. Did the Superior Court err in finding that the Progressive Northern Insurance

Company (“Progressive”) Policy, issued to driver Kelly, is excess to the Argonaut Policy, thus

rejecting Argonaut’s contention that the “other insurance” clauses of the policies require

Progressive and Argonaut to share coverage on a pro rata basis. See A. at 23-27.

In reply to Appellees’ arguments, Argonaut incorporates by reference the contents of its

Appellant’s Brief. In addition, Argonaut replies as follows.

I. REPLY TO PROGRESSIVE’S POINT I REGARDING REGULAR USE

Progressive begins its brief by quoting that part of the Superior Court’s decision, which

erroneously found the right to regular use must be “unfettered” and limitless. See Progressive

Brief at 12. As Argonaut argued in its Appellant’s Brief, however, there is nothing in the

relevant case law or dictionary definitions that require a “right” to an absolute or unqualified

entitlement. See Argonaut Brief at 14-15; see also Webster’s Third New Int’l Dictionary 1955

(Unabridged Ed. 2002); Black’s Law Dictionary 1324 (6th Ed. 1990).

Progressive discusses cases that do not support any requirement that a right to regular use

be “unfettered.” In addition, the facts of the cases Progressive cites are distinguishable from the

present circumstances. Regarding, Volpe v. Prudential Prop. & Cas. Ins. Co., 802 F.2d 1, *2 (1st

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Cir. 1985), superceded on other grounds, Town of Allenstown v. Nat’l Cas. Co., 36 F.3d 229,

232 (1st Cir. N.H. 1994), Progressive ignores the fact that the Argonaut Policy language as to

regular use is different from that in Volpe. The policy language quoted in Volpe provided that

“there is no coverage for cars regularly used by you or such relatives.” Id. at *2 (emphasis ours).

The Argonaut provision, by contrast, limits coverage for cars “furnished or available for regular

use,” defined as “the right to frequent use.” Appendix (“A.”) at 63. Actual regular use

therefore was the standard in Volpe, see 802 F.2d at *2, while here, the requirement is that the

plaintiff merely have a right to frequent use, regardless of how often plaintiff opted to exercise

that right. See Argonaut Brief at 14.

Progressive also cites Cook v. Cigna Ins. Co., 139 N.H. 486, 487 (1995), which involved

a 15 year old employee, who became involved in an accident while using a vehicle owned by his

employer. Id. at 487. The 15 year old had plans to purchase the accident vehicle. His father

had an auto policy with Cigna that excluded coverage for an uncovered vehicle “that was either

owned by a family member or available for his or her regular use.” Id. Much of the focus in

Cook centered upon whether the youngster had yet purchased the vehicle, in which case

coverage would be denied. Id. at 489. Having established by hearing testimony that he did not

own the vehicle on the day of the accident, the court in Cook concluded that the youngster was

not really “allowed to simply take this vehicle and didn’t in fact take this vehicle anywhere that

he wanted to.” Id. The Court in Cook had not embarked upon a substantial analysis of what

constituted “regular use.”

By contrast, Craig Kelly, 34 at the time of the Morasse accident, was given charge of his

parents’ businesses when they were not available, and could have had any vehicle he wanted

from Tom’s lot. As Argonaut argued (Argonaut Brief at 14-15), the only condition to Craig’s

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use was whether a vehicle was available, a minimal condition that does not defeat regular use.

See Wallace v. State Farm Mut. Auto Ins. Co., 349 P.2d 789, 792 (Ore. 1960) (reversal based on

erroneous jury instruction on “regular use”).

Progressive also misplaces reliance upon Allstate Ins. Co. v. Chatigny, 103 N.H. 81, 83

(1960), where this Court decided that “infrequent and casual use” of a vehicle by a chauffeur

during a two-week job did not constitute regular use. It is uncertain as to whether regular use

was defined in Chatigny, like here, as the “right to regular use.” Moreover, the circumstances,

unlike here, involved a brief two-week period during which regular use could not be established

absent an explicit contract or understanding.

Progressive also relies on Spaulding v. Concord Gen. Mut. Ins. Co., 122 N.H. 515, 516

(1982). This Court in Spaulding found that a driver’s actual frequent use of a vehicle during the

time the owner was in jail constituted regular use. As in Volpe, however, regular use in

Spaulding did not appear to include as here the right to regular use. Id. (“A non-owned

automobile is defined as ‘an automobile . . . not owned by or furnished for the regular use of

either the named insured or any relative . . .’”). In any event, Spaulding represents just one

example of regular use under the particular policy at issue in that case. It’s holding does not

preclude a finding of regular use under the instant circumstances.

Progressive makes a weak analogy between the circumstances here and a neighbor

having a spare key to a person’s home. The relationship between the person with the spare key

and the homeowner is quite different than what was established here between Kelly and Tom’s.

Not only did Kelly have keys to Tom’s, but he had keys to the other two family businesses, one

of which he worked for as an employee shortly before the accident. A. 148 (pp. 7-8), A. 152,

154-55 (pp. 31-35). Kelly was the oldest son, whose responsibilities extended not only to his

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parent’s businesses, but also to their personal affairs. Argonaut Brief at 6-7 (description of

Kelly’s responsibilities for parents’ personal affairs). The regular use of Tom’s vehicles, or the

right thereof, was part and parcel of the relationship he had with his parents both as their

responsible son living across the street from his parents, and as the son who was involved with

the family businesses. See Argonaut Brief at 6-7. The neighbor with the keys would not

necessarily have the same level of relationship or privileges with the homeowner as did Kelly

with his parents.

Progressive struggles to distinguish certain cases cited in Argonaut’s Brief. Progressive

Brief at 14-15. Progressive fails to understand, for example, that the Wallace court did not tie

the definition of regular use to actual use, but to the “expressed or implied understanding with

the owner of an automobile that the insured could have the use of the particular automobile or

perhaps any automobile of the other at such times as he desired, if available.” 349 P.2d 789,

792. Similarly, Progressive appears to miss the point of Aler v. Travelers Indemnity Co., 92

F.Supp. 620 (D. Md. 1950), which held, like Wallace, that regular use is premised on an

understanding, either express or implicit. The dispositive factor here is Kelly’s understanding

with his parents, not his actual frequency of use of the Tom’s vehicles.1

Notably absent from Progressive’s Brief is any reference to Kelly’s statement shortly

after the accident, and before the present issues concerning coverage came to the forefront. A.

1 As to actual frequency of use, Kelly never stated with any certainty how often he used a Tom’s vehicle. Progressive claims that Craig testified he had not used a Tom’s vehicle for one year prior to the accident. Progressive Brief at 4. In fact Craig’s testimony was vague and unclear, reporting that “. . . I really, I couldn’t put a number to it, but it would probably be measured in months and years.” A. at 160 (p. 57) Kelly suggested later in the deposition that he had probably used a loaner car from Tom’s about twice per year. A. at 161 (p. 60). Progressive also relied on Elizabeth Kelly’s statement as to her son’s frequency of use, see Progressive Brief at 4, even though Mrs. Kelly testified that she had no knowledge on how often her son used a Tom’s vehicle, A. 168 (pp. 16-17), 172 (pp. 32-33).

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365-380. In that statement, Kelly was more candid about his special privileges with the Tom’s

vehicles, indicating that he had the discretion to just take the car that he was using the day of the

accident. A. 371-72. Kelly expressed that he did not like the car he took off the lot, and had he

not been in the accident, he simply would have taken another if it had been available. A. 372;

see also Argonaut Brief at 7-8. Overall, Kelly’s post-accident statement corroborates Argonaut’s

assertion that any “permission” Kelly procured had concerned only which vehicle, not whether

he would be permitted use in the first place. See Argonaut Brief at 6-9 (description of Kelly’s

access to the Tom’s vehicles).

Further, Kelly’s post-accident statement indicated that his mother was quite adamant that

he not allow anyone else to drive any car he took and that Kelly indeed had special privileges

with the Tom’s vehicles. A. 373. In this regard, Kelly stated, “. . . obviously it makes sense to

me. I have no idea if it’s, you know, insurance reasons or – or what.” A. 373; see also A. 388

(Kelly’s statement that he believed he was listed on Tom’s insurance policy).

For the first time on appeal, Progressive asserts the argument that the Additional Garage

Limitations Endorsement does not apply because Kelly was using the accident vehicle for

purposes that were “necessary or incidental to garage operations,” and therefore is not excluded

under the Additional Garage Limitations Endorsement. Progressive Brief at 16-18.2 The

argument should be disregarded since it was not raised below. See LeFavor v. Ford, 135 N.H.

311, 313 (1992) (issues not raised below may not be raised for the first time on appeal). In any

event, the argument is meritless.

2 As set forth in Argonaut’s Brief, “Regular Use” s defined by the Argonaut Policy’s Additional Garage Limitations Endorsement may be broken down into four elements: (1) covered auto owned by the named insured; (2) used by a driver not listed on the schedule; (3) “for purposes that are not necessary or incidental to ‘garage operations’” and (4) with “right to frequent use.” Argonaut Brief at 12; A. 63.

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Progressive, quoting parts of the Argonaut Policy’s definition of garage operations,

erroneously asserts that any use of a covered auto is necessary or incidental to garage operations.

In fact, the Argonaut Policy defines garage operations in full as follows:

“Garage operations” means the ownership, maintenance or use of locations for garage business and that portion of the roads or other accesses that adjoin these locations. “Garage operations” includes the ownership, maintenance or use of the “autos” indicated in Section 1 of this Coverage Form as covered “autos”. “Garage operations” also include all operations necessary or incidental to a garage business.” A. 84.

Contrary to Progressive’s contention, “necessary or incidental to a garage business” is defined

separately from “ownership, maintenance or use of . . . covered autos.” One definition is not

subsumed under the other. In other words, use of a covered vehicle is not synonymous with

operations that are “necessary or incidental to a garage business.”

Moreover, to accept Progressive’s interpretation of the policy would render the garage

limitations endorsement meaningless. In order for the exclusion to apply, the accident vehicle

must be a covered vehicle owned by the named insured, the use of which is, according to

Progressive, always “necessary or incidental to a garage business.” See n. 2, supra; Progressive

Brief at 16-18. According to Progressive’s interpretation, therefore, no vehicle would ever come

under the exclusion. “It is axiomatic that constructions which render contract terms meaningless

or futile are to be avoided.” Bossee v. Litton Unit Handling Systems, 646 F.2d 689, 694 (1st Cir.

1981) (applying N.H. law); accord Rodriguez v. Northern Telecom, 1995 U.S. Dist. LEXIS 8892

(D.N.H. June 15, 1995).

As to the customer issue, Progressive’s argument that Kelly was not a customer relies

upon the heavily criticized and questioned case, Connecticut Indemnity Co. v. Cordasco, 535

A.2d 631, 632 (Pa. Super. 1987), which found that auto dealership customers refer only to auto

purchasers, not repair service customers. Progressive cites in support of its argument the

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Argonaut provision excluding leased or rented autos, except when rented to a customer while the

auto is left for repair. Most courts, however, find that an exclusion may not be relied upon, as

here, to create coverage. See Globe Indemnity Co. v. Jordan, 634 A.2d 1279 (Me. 1993). “An

exclusion clause can ‘subtract from coverage’ granted somewhere else in the policy; it alone

cannot establish coverage.” Id. at 1283; see also Oklahoma Farmers Union Mut. Ins. Co. v. John

Deere Ins. Co., 967 P.2d 479, 481-82 (Okla. Civ. App. 1998) (reviewing the criticisms against

Connecticut Indemnity and similar cases); Spurlin v. Merchants Ins. Co. of New Hampshire, 866

F.Supp. 57, 61-62 (1994) (Connecticut Indemnity is a statement of Pennsylvania public policy,

rather than a reasonable interpretation of an insurance contract). There exists insubstantial

support therefore that service customers are not customers of an auto dealership.

As to Progressive’s contention that New Hampshire’s Financial Responsibility Act,

R.S.A. 259:61, does not permit the customer exclusion to apply here, this argument is also

meritless. The express language of the policy makes it clear that it does not cover a customer if

other insurance, like Progressive, applies that is greater than the compulsory amount required

under the Financial Responsibility Act. The compulsory amount in New Hampshire is $25,000.

See Addendum, infra.

II. REPLY TO PROGRESSIVE’S POINT II REGARDING EXCESS COVERAGE

Argonaut incorporates its arguments set forth in its opening brief, pages 16-19.

III. REPLY TO PROGRESSIVE’S POINT III REGARDING DEFENSE

Progressive erroneously believes that the Superior Court’s decision to divide defense

costs on a pro rata basis is not preserved for appeal. The issue however is a subsidiary question

of Argonaut’s third question for appeal, stating:

Did the trial court err in finding that the Progressive policy issued to Craig Kelly is excess to the Argonaut Policy issued to Tom’s Auto Sales, thus rejecting

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Argonaut’s contention that the ‘other insurance’ clauses of the policies require Progressive and Argonaut to share any coverage on a pro-rata basis? A. 4.

Argonaut’s third issue encompasses a review of the Superior Court’s entire interpretation of the

“other insurance” clauses and its resulting conclusion as to both indemnity and defense. See

Hillside Ass’n of Hollis v. Maine Bonding & Casualty Co., 135 N.H. 325, 330 (1992) (reviewing

guidelines articulated in Rule 16(3)(b) as to subsidiary questions). The Superior Court’s

consideration of the defense issue was directly premises upon its ruling that Progressive owed

indemnity on an excess rather than pro rata basis. A. 20.1. In this regard, the Superior Court

concluded:

. . . Universal Underwriters reflects a New Hampshire policy of imposing a greater burden on an excess insurer than what is required under the general rule. Moreover, considering that Progressive would have provided primary coverage but for the fact that Argonaut’s policy also provides coverage, it would not be unfair to require Progressive to pay a pro rata share of defense costs based on the respective coverage liability of each insurer. A. 20.1-21.

The issue of defense is subsumed under the issue of pro rata indemnity, and is therefore a

subsidiary question under Rule 16(3)(b). Cf. State v. Jiminez, 137 N.H. 450, 451 (1993) (finding

a subsidiary question as proper for review); see also In re James N., 157 N.H. 690, 693 (N.H.

2008); Plourde Sand & Gravel Co. v. JGI Eastern, Inc., 154 N.H. 791, 799 (N.H. 2007).

If the question regarding apportionment of defense is not deemed subsidiary to the

question of indemnity, then it was plain error for the Superior Court to not follow this Court’s

ruling in Universal Underwriters Ins. Co. v. Allstate Ins. Co., 134 N.H. 315, 319 (1991), which

decided that excess liability insurers share equally in the defense. The error prejudices Argonaut

by obligating it to pay more than its legally required share of defense costs and fees. See Rule

16-A; Hilario v. Reardon, 158 N.H. 56, 60 (N.H. 2008) (finding plain error under Rule 16-A).

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As to Progressive’s plea to this Court for a “factual inquiry” into the likelihood of its

Policy’s exposure, Argonaut respectfully refers the Court to the arguments made against this

request in its opposition to Progressive’s summary judgment motion. A. 358 (¶ 32). In sum,

even assuming Progressive is excess to Argonaut, its “potential” for liability nonetheless requires

that it share equally in the defense of the Morasse lawsuit. Universal Underwriters Ins. Co. v.

Allstate Ins. Co., 134 N.H. 315, 319 (1991). This Court in Universal Underwriters prohibited

just the kind of inquiry that Progressive is now requesting. Id. As the Superior Court noted,

New Hampshire “has a policy of imposing a greater burden on an excess insurer than what is

required under the general rule.” A. 20.1. Progressive’s citation to out-of-state cases fails to

acknowledge this State’s more stringent demands upon excess insurers to contribute to defense.

See Progressive Brief at 33.

IV. REPLY TO CRAIG KELLY’S BRIEF

Kelly, like Progressive, relies heavily on the Volpe case. Kelly Brief at 5-8. As

distinguished above, Volpe involved a different standard concerning regular use than that here.

Furthermore, the facts in Volpe are different from the circumstances here. Carolyn Blondeau’s

use of the subject vehicle in the Volpe case was entirely conditioned upon the good graces of her

boyfriend and her boyfriend’s father, the vehicle owner. She had no use of the car during the

two months her relationship “soured.” Volpe, 802 F.2d at *3. Moreover, much of Blondeau’s

use occurred while she was out with her boyfriend. Id. Although Blondeau might have made

frequent use of the vehicle, the facts established that her use was contingent upon whether her

relationship with her boyfriend was on or off. Id.

Here, by contrast, Elizabeth Kelly testified that Kelly had keys to Tom’s and the other

family businesses, that she and her husband trusted him implicitly, not only with the businesses

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and vehicles, but also with their lives as each named Kelly their special contact in case of

emergencies. As Elizabeth Kelly testified, “He’s just always been there.” A. 171 (p. 29). Kelly

further testified that he had keys to the Tom’s business to “take care of whatever would come up

in [his] parents’ absence.” A. 154 (p. 33). Kelly’s June 22, 2006, post-accident statement

explained further that his mother was adamant that if Kelly was to take a Tom’s vehicle on the

road, it was Kelly and only Kelly who was to drive that car, suggesting that Kelly had special

privileges with the vehicles that no one else had. A. 373.

Kelly, in contrast to Blondeau in Volpe, had an enduring and multi-faced relationship

with his parents, which gave rise to an implicit understanding that he had access to any vehicle

on the Tom’s lot, if available. How often Kelly actually took advantage of this access is

irrelevant. Furthermore, the permission required by Blondeau in Volpe, although “never denied”,

was nonetheless required. Volpe, 802 F.2d 1, at *3. As indicated, any request for permission by

Kelly served the purpose of ascertaining which vehicle would be available, not whether he could

use it in the first place, as was the case in Volpe.

In any event, it is not the need to obtain permission that is controlling here. Rather, as the

Court in Volpe held, it is whether the insured should have expected to pay an extra premium to

cover Craig’s use or potential use of Tom’s vehicles. Id., at *4. If Mr. and Mrs. Kelly so trusted

their son with the businesses and the vehicles, to the extent of placing him in charge in their

absence, if in fact they permitted Craig Kelly to use Tom’s vehicles, unsupervised, when they

permitted no other unscheduled driver or customer to do so, then it appears that Tom’s should

have “reasonably expected to pay an extra premium to cover [Kelly’s] use . . .” Volpe, 802 F.2d

at *4. Kelly’s use or potential use of the vehicles was arguably broader than Tom’s mechanic,

John Adams, who was a scheduled driver on the policy. A. 169 (p. 21). In fact, Kelly stated in

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response to interrogatories in the underlying action that he believed that he was listed on Tom’s

insurance policy even though he was not an employee. A. 388. Mrs. Kelly suggested that she

too thought her son was covered as Tom’s allowed him to use loaner vehicles while she believed

no other customer would be covered for such use. A. 172 (pp. 31-32).

As to dealer plates, Argonaut has made no assertions concerning Kelly’s access to his

parents’ home. See Kelly Brief at 13. Those facts were not developed in discovery or

depositions. Argonaut argues only that Kelly’s position as the son who lived across the street,

who was involved in his parents’ businesses, even being employed at one time by one of the

parents’ businesses, had a close enough relationship so that it would be fairly easy for him to

obtain the dealer plate to a lot vehicle. The dealer plates in other words did not provide a

substantial obstacle to Craig’s use.

Kelly also relies on Elizabeth Kelly’s statement that her son was not authorized to take

vehicles anytime he wanted. Kelly Brief at 2. As indicated, however, Elizabeth Kelly clearly

testified that she had no knowledge of Kelly’s use of the Tom’s vehicles, and her statements

therefore may not be relied upon as to her son’s “authorization.” A. 168 (pp. 16-17), 172 (pp.

32-33).

V. REPLY TO THE MORASSE MEMORANDUM

As to the Memorandum submitted by Martin and Linda Morasse, Argonaut incorporates

the facts and arguments contained in its Appellant’s Brief as well as all of the arguments asserted

in this Reply Brief.

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CONCLUSION

For the foregoing reasons, Argonaut respectfully requests this Honorable Court modify

the Superior Court’s May 12, 2010 Order, as set forth in its Appellant’s Brief.

Dated: Littleton, New Hampshire October 14, 2010

PRIMMER PIPER EGGLESTON & CRAMER By__________________________________ Gregory M. Eaton NH Bar #10513 106 Main Street, P.O. Box 349 Littleton, New Hampshire 03561-0349 603.444.4008

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ADDENDUM

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RELEVANT STATUTE

R.S.A. 259:61 Motor Vehicle Liability Policy.

“Motor vehicle liability policy” shall mean a policy of liability insurance which provides: I. Indemnity for or protection to the insured and any person responsible to him for the operation of the insured’s motor vehicle, trailer, or semi-trailer who has obtained possession or control thereof with his express or implied consent, against loss by reason of the liability to pay damages to others for damage to property, except property of others in charge of the insured or his employees, or bodily injuries, including death at any time resulting therefrom, accidentally sustained during the term of said policy by any person other than the insured, or employees of the insured actually operating the motor vehicle or such other person responsible as aforesaid who are entitled to payments or benefits under the provisions of any workers’ compensation act arising out of the ownership, operation, maintenance, control, or use within the limits of the United States of America or the Dominion of Canada of such motor vehicle, trailer or semi-trailer, to the amount or limit of at least $25,000 on account of injury to or death of any one person, and subject to such limit as respects injury or death of one person, of at least $50,000 on account of any one accident resulting in injury to or death of more than one person, and at least $25,000 for damage to property of others, as herein provided, or a binder pending the issue of such a policy or an endorsement to an existing policy, as defined in RSA 264:14, 18, and 19, and II. Which further provides indemnity for or protection to the named insured and to the spouse of such named insured as insured if a resident of the same household, or the private chauffeur or domestic servant acting within the scope of the employment of any such insured with respect to the presence of any such insured in any other motor vehicle, from liability as a result of accidents which occur in New Hampshire due to the driving of any motor vehicle, trailer, or semi-trailer not owned in whole or in part by such insured; provided, however, the insurance afforded under this paragraph applies only if no other valid and collectible insurance is available to the insured. III. The coverages described in paragraphs I and II, except as to the minimum financial responsibility limits, shall not apply to any insured operator whose driver’s license has been suspended or revoked. Coverage under RSA 264:15 or RSA 264:16 shall not apply to any insured operator whose driver’s license has been suspended or revoked.

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