Cacavas v. Maine Bonding & Casualty Co. , 128 N.H. 204 ( 1986 )

Souter, J.,

concurring specially: I believe that Grimes v. Concord Gen’l Mut. Ins. Co., 120 N.H. 718, 422 A.2d 1312 (1980) was correctly decided and that Descoteaux v. Liberty Mut. Ins. Co., 125 N.H. 38, 480 A.2d 14 (1984) was decided wrongly. If I had sat on Descoteaux I would have joined Justice Brock’s dissent in that case, and were it not for the majority opinion in Descoteaux I would join Justice Brock in his dissent today. I concur with the majority, however, because I believe that Descoteaux effectively overruled Grimes and that stare decisis calls for me to follow Descoteaux.

In Descoteaux this court reasoned that an other-insurance clause that did not expressly bar stacking could be read merely to limit the insurer’s proportional share of coverage by reference to the limits of liability stated in the policy. Apparently on the assumption that the other-insurance clause was thus equivalent to a limits-of-liability clause, the court held that the legislative policy of the 1969 amendments to the statute regulating uninsured motorist coverage required an interpretation of the policy that would permit stacking. If I understand the court’s reasoning, it follows that in the absence of fairly specific language to bar stacking, a limits-of-liability clause does not bar it and stacking must be permitted.

Since Grimes had rested on a limits-of-liability clause in holding that stacking was not permitted, it is difficult to find any vitality in Grimes after Descoteaux. It is true, of course, that Grimes involved one policy insuring two cars, while Descoteaux involved two policies. But I am unable to see any principled distinction that would confine Descoteaux’s emphasis on the significance of legislative intent to the two-policy case. It is also true that Grimes involved minimum uninsured motorist coverage, while the Descoteaux policy contained higher limits, but Descoteaux itself rejected any distinction on that basis. I therefore conclude that Descoteaux effectively overruled Grimes, and that respect for the more recent precedent counsels us to hold that the limits of liability clause in question here must be construed to permit intra-policy stacking of uninsured motorist coverages.

Today’s decision at least has the merit of achieving a certain rough consistency of results in the uninsured motorist cases, as between interpretations of other-insurance and limits-of-liability clauses, and as between one-policy and two-policy coverages. This consistency is arguably cause for some surprise, however, in view of the arduous course that the court has followed to reach it, a course that reflects, inter alia, our necessarily piecemeal process of individual policy interpretation. Since that process has not seen its last stacking case, it is fair to ask whether there is a better way to resolve the potential disputes that remain. I, for one, hope that the legislature or the insurance commissioner will give thought to a fresh and systematic look at the issue of stacking.