Date: 12-23-2002

Case Style: Alfred H. Trombley v. Liberty Mutual Insurance Company

Case Number: 2001-452

Judge: Nadeau

Court: The Supreme Court of New Hampshire

Plaintiff's Attorney: Moquin & Daley, P.A., of Manchester (Richard C. Moquin and Joni N. Esperian on the brief, and Mr. Moquin orally), for the petitioner.

Defendant's Attorney: Law Offices of John B. Schulte, of Manchester (John B. Schulte on the brief and orally), for the respondent.

Description: The respondent, Liberty Mutual Insurance Company, appeals a Superior Court (Barry, J.) order granting declaratory judgment in favor of the petitioner, Alfred H. Trombley, Jr., and requiring the respondent to provide the petitioner with uninsured motorist coverage for his workplace injuries. We reverse.

The trial court found, or the parties stipulated to, the following facts. The petitioner was injured on October 27, 1998, in the course of his employment with R.S. Audley, Inc., a construction company primarily engaged in building and maintaining roads, bridges and highways. That day, the petitioner and a co-worker were working at the R.S. Audley storage facility on Route 3-A in Bow. The Bow facility consists of an office building, several shop buildings and a fenced back lot where materials are stored. A winding dirt road serves as a driveway connecting the back lot to Route 3-A for deliveries and pickups. The trial court found, and neither party disputes, that the driveway connecting the back lot to Route 3-A is private, and therefore not a public road for the purposes of this case.

The petitioner was injured while he and his co-worker were loading forty-foot I-beams from the back lot onto a flatbed truck parked in the driveway. The petitioner was standing on the bed of the truck to guide the direction of the I-beams as his co-worker loaded them onto the truck from a Caterpillar "Integrated Toolcarrier" (IT). The IT is a multi-functional piece of heavy-duty construction equipment most often used for digging, loading, lifting, logging, snow plowing or sweeping, depending upon its attached tool implement. The attached implement being used to load I-beams was a two-prong forklift tool.

The petitioner's co-worker loaded one I-beam from the IT onto the truck and began to drive away, but the IT tool attachment knocked the I-beam from its resting place on the truck bed. The I-beam, in turn, knocked the petitioner off the truck and onto the ground. The I-beam then fell from the truck, landing on top of the petitioner, crushing his legs.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Because these statutes neither expressly prohibit the exclusionary language in this case nor require liability or uninsured motorist coverage, the insurer was free to limit its liability through this exclusionary policy language. See, e.g., West American Ins. Co. v. Pirro, 808 P.2d 322, 323 (Ariz. Ct. App. 1990); Chase v. State Farm Mut. Auto. Ins., 641 P.2d 1305, 1309 (Ariz. Ct. App. 1982); Shumaker v. Farm Bureau Mut. Ins. Co., 785 P.2d 180, 181-82 (Kan. Ct. App. 1990).

Reversed in favor of Defendant.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: C.L.