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Bourque v. Dairyland Ins. Co
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 178
Docket: 	Yor-99-156
Submitted
on Briefs:	October 14, 1999
Decided:	December 3, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




ROBERT BOURQUE v. DAIRYLAND INSURANCE COMPANY et al.


CLIFFORD, J.

	[¶1]  Robert  Bourque appeals from summary judgments entered in
the Superior Court (York County, Perkins, A.R.J.), against him and in favor of
Dairyland Insurance Company and Metropolitan Property & Casualty
Insurance Company, in an action brought following an automobile accident. 
Bourque seeks to recover additional compensation for his injuries under
policies issued by each company.  Bourque contends that there are genuine
issues of material fact and that the court erred in granting summary
judgments in favor of Metropolitan and Dairyland.  Finding no error, we
affirm the judgments.
	[¶2]  The facts are largely undisputed.  On March 14, 1994, Robert
Bourque was a passenger in a vehicle driven by Bryan Hamel when it was
involved in a serious accident.  Hamel was killed and Bourque was severely
injured.  On July 18, 1997, Bourque entered into a settlement agreement
with Hamel's insurance provider, Dairyland Insurance Company, for a total of
$25,000, the "per person" liability limit of Hamel's policy.  The agreement
expressly excepted "any claims for uninsured or underinsured motorist
coverage."
	[¶3]  At the time of the accident, Bourque was living with his mother
and stepfather, Carlene and Donald Hartford.  Bourque was virtually the sole
driver of a 1976 Chevrolet van and owned no other vehicle during the policy
period in question.  According to Donald Hartford's affidavit, the van was
purchased by Hartford without any funds from Bourque, and later sold by
Hartford to a third party with none of the proceeds going to Bourque.  The
vehicle, however, was registered and insured in Bourque's name.  Bourque
was the named insured in an insurance policy issued by Progressive
Insurance and Casualty Company with an underinsured motorist limit of
$25,000.  He also registered the vehicle with the Maine Department of
Motor Vehicles. 
	[¶4]  In addition to the Progressive policy, two other insurance
policies are at issue in this case.  Carlene and Donald Hartford were the
named insureds under a policy issued by Metropolitan, with an underinsured
motorist limit of $100,000.  The Metropolitan policy covers "bodily injury
damages caused by an accident arising out of the . . . use of an underinsured
highway vehicle which you or a relative are legally entitled to collect from
the owner or driver of an underinsured highway vehicle."  The policy
excludes from the definition of relative "any person . . . who owns a private
passenger vehicle."  Donald Hartford, in his application for insurance
coverage with Metropolitan, indicated that Bourque has "his own car
ins[urance] policy and is not a driver [of] insured's autos."
	[¶5]  Hamel's policy, issued by Dairyland and under which Bourque
collected the $25,000 liability limit, also contained a $25,000 underinsured
motorist policy limit.  The Dairyland policy provides that Dairyland will "pay
damages . . . the owner of an uninsured motor vehicle is legally obligated to
pay because of bodily injury you suffer in a car accident while occupying a car
. . . as a result of having been struck by an uninsured motor vehicle."  It
further provides that "[a] car we insure . . . isn't an uninsured motor
vehicle."
	[¶6]  On March 13, 1998, Bourque filed the present claim against
Metropolitan, Dairyland, and Progressive to recover under the underinsured
provisions of the policies.  Following discovery, the court granted motions
for summary judgment filed by Metropolitan and Dairyland.  Progressive
then filed its motion for summary judgment, which was granted on the
condition that the judgment would become void if we were to vacate either
judgment with respect to Metropolitan or Dairyland.  This appeal by Bourque
followed.
	[¶7]  "When reviewing a grant of summary judgment, we view the
evidence in the light most favorable to the party against whom the judgment
has been granted, and review the trial court's decision for an error of law." 
Estate of Althenn v. Althenn, 609 A.2d 711, 714 (Me. 1992).
A. METROPOLITAN'S EXCLUSION
	[¶8]  The issue presented as to the Metropolitan policy is whether, on
what are basically uncontested facts, Bourque is the "owner" of the van
under the Metropolitan policy, thus triggering the exclusion of Bourque as
an owner of a private passenger vehicle from the policy's definition of
relative.  Bourque contends that he has raised a "genuine issue of material
fact" by sufficiently alleging that his stepfather, rather than Bourque himself,
was the true owner of the van.{1}  Metropolitan contends that the fact that
Bourque registered and obtained insurance for the van is proof that he was
the "owner" of the vehicle.
	[¶9]  The term "owner" is not separately defined in Metropolitan's
policy.  Whether or not a contractual term is ambiguous is a question of law. 
See Tondreau v. Sherwin-Williams Co., 638 A.2d 728, 730 (Me. 1994). 
Contract language is considered ambiguous if it is reasonably possible to give
that language at least two different meanings.  See Cambridge Mut. Fire Ins.
Co. v. Vallee, 687 A.2d 956, 957 (Me. 1996).
	[¶10]  The term "owner" as used in Metropolitan's policy is
unambiguous, and on the undisputed facts, Bourque was the owner of the
van.  Bourque registered the van in his name.  He insured the van in his
name.  In his insurance application, Hartford represented to Metropolitan
that Bourque had his own car insurance policy, and that Bourque would not
be driving vehicles insured by Metropolitan.  On these facts, it was clearly
the intention of the parties that Bourque be considered the owner of the
van, and that he would not be covered under the Metropolitan policy. 
Accordingly, the Superior Court correctly determined that Metropolitan was
entitled to a summary judgment.
B. DAIRYLAND'S SETOFF PROVISION
	[¶11]  Bourque contends that the provision of the Dairyland policy
excluding from the definition of an uninsured motor vehicle any car that
Dairyland insures is void because it conflicts with 24-A M.R.S.A. § 2902
(1990 & Supp. 1998).{2}  He contends that he should be able to "stack"
uninsured motorist coverage on top of the liability coverage under which he
has already recovered.{3}  Dairyland points out that the language of its policy
stating that "[a] car we insure . . . isn't an uninsured motor vehicle" is clear
and is dispositive.
	[¶12]  We have addressed this issue previously.  In Smith v. Allstate
Insurance Co., 483 A.2d 344 (Me. 1984), we relied on virtually identical
policy language to find that such an exclusion was valid and prevented the
insured from recovering under an uninsured motorist provision.  Id. at 347
(citing Turcotte v. Foremost Ins. Co., 460 A.2d 1369, 1370 (Me. 1983)). 
Accordingly, Bourque may not simultaneously recover under both provisions
of the Dairyland policy and judgment was properly entered in favor of
Dairyland.
	The entry is:
Judgments affirmed.


Attorneys for plaintiff: Paul F. Macri, Esq. Tyler N. Kolle, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 Attorneys for defendants: Martica S. Douglas, Esq. Douglas, Denham, Rodgers & Hood P O Box 7108 Portland, ME 04112-7108 (for Metropolitan Prop. & Casualty) Richard N. Hewes, Esq. 48 Free Street Portland, ME 04101 (for Dairyland Ins. Co.) Christopher C. Dinan, Esq. Monaghan Leahy Hochadel & Libby P O Box 7046 Portland, ME 04112-704 (for Progressive Ins. & Casualty)
FOOTNOTES******************************** {1} . Bourque points out that we have not found that ownership of a vehicle vests solely with the person who registers it. In Iles v. Palermino, 127 Me. 226, 142 A. 867 (1928), we noted that ownership was vested in two parties even though the vehicle was registered in the name of only one party. Id. at 226, 142 A.2d at 867. That case, however, did not involve the construction of "owner" as used in an insurance contract. In Iles, the question was whether the driver of a vehicle, jointly owned by the defendant and the husband of the driver, but registered in the name of defendant alone, was a "servant or agent" of the defendant for purposes of vicarious liability. See id. {2} . The statute provides: 1. No policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any such vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured, underinsured or hit-and-run motor vehicles, for bodily injury, sickness or disease, including death, resulting from the ownership, maintenance or use of such uninsured, underinsured or hit-and-run motor vehicle. The coverage herein required may be referred to as "uninsured vehicle coverage." For the purposes of this section, "underinsured motor vehicle" means a motor vehicle for which coverage is provided, but in amounts less than the minimum limits for bodily injury liability insurance provided for under the motorist's financial responsibility laws of this State or less than the limits of the injured party's uninsured vehicle coverage. 2. The amount of coverage to be so provided may not be less than the minimum limits for bodily injury liability insurance provided for under Title 29-A, section 1605, subsection 1. 3. For the purposes of this section, the term "uninsured motor vehicle" shall be deemed also to include, subject to the terms and conditions of such coverage, an insured other motor vehicle where: A. The liability insurer of such other motor vehicle is unable because of its insolvency to make payment with respect to the legal liability of its insured within the limits specified in its policy; and B. The occurrence out of which such legal liability arose took place while the uninsured vehicle coverage required under subsection 1, above, was in effect; and C. Written notice of such occurrence shall have been given to the insurer within 2 years thereof. Nothing contained in this subsection shall be deemed to prevent any insurer from providing insolvency protection to its insureds under more favorable terms. 4. In the event of payment to any person under uninsured vehicle coverage, and subject to the terms of such coverage, to the extent of such payment the insurer shall be entitled to the proceeds of any settlement or recovery from any person legally responsible for the bodily injury as to which such payment was made, and to amounts recoverable from the assets of the insolvent insurer of the other motor vehicle. 24 M.R.S.A. § 2902. {3} . Bourque relies on Tibbetts v. Maine Bonding & Cas. Co., 618 A.2d 731 (Me. 1992), in which we held that Maine Bonding's setoff provision was invalid. Besides the obvious difference between that case and the present one-that Bourque seeks recovery under the liability and uninsured motorist provisions of the same plan-Tibbetts is inapposite because in that case there were two joint tortfeasors. See id. at 733-34.