McGoff v. Acadia Insurance Co., 2011 VT 102 (mem.)

Plaintiffs appeal an order granting defendant Acadia summary judgment with respect to plaintiffs’ underinsured motorists (UIM) claim arising from an automobile accident in which Thomas McGoff was injured. Plaintiffs argue that the court erred in ruling that Vermont’s UIM requirements do not apply to the instant policy on grounds that the policy was not delivered or issued for delivery in Vermont. We affirm.

In relevant part, § 941(a) provides that no motor vehicle policy “may be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless” UM/UIM coverage is provided for the protection of the insureds. The policy was issued and delivered to Sandri, a Massachusetts company with its principal place of business in Massachusetts, by a Massachusetts agent, for vehicles—including the Plymouth supplied to McGoff—registered in Massachusetts. In short, given § 941(a)’s plain language, the statute does not apply to the subject policy.

Plaintiffs appear to argue that because the Plymouth was garaged in Vermont rather than in Massachusetts, as indicated in the Acadia policy, and thus should have been registered in Vermont rather than Massachusetts, § 941’s UIM requirements should apply, including § 941(c), which requires that UM/UIM coverage in a policy be provided in the same amount as the liability coverage “unless the policyholder otherwise directs.” This position is contrary to the plain language of § 941(a) as well as the nearly unanimous relevant case law, and therefore we decline to adopt it under the present circumstances.

The salient language in § 941(a) limits application of the statute to policies “delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state.” (Emphasis added.) The two key phrases connected by the term “with respect to” are conjunctive rather than disjunctive, thereby requiring both elements to be satisfied for the statute to apply. Whether the issue is framed as one of statutory construction or choice-of-law, the courts construing statutes similar to § 941(a) are nearly unanimous in concluding that insurance policies such as the instant Acadia policy are not subject to that state’s statutory UM/UIM coverage requirements unless the policy was delivered or issued for delivery in that state, even if the subject vehicle was regularly garaged in that state.