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                   THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Rockingham
No. 2017-0717


                                 JOSEPH A. SANTOS

                                         v.

     METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY

                           Argued: September 27, 2018
                         Opinion Issued: January 17, 2019

      Parnell, Michels & McKay, PLLC, of Londonderry (Rory J. Parnell on the
brief and orally), for the plaintiff.


      Desmarais Law Group, PLLC, of Manchester (Debra L. Mayotte on the
brief and orally), for the defendant.

      HANTZ MARCONI, J. The defendant, Metropolitan Property and
Casualty Insurance Company (Metropolitan), appeals an order of the Superior
Court (Schulman, J.) partially granting and partially denying its summary
judgment motion as well as a cross-motion filed by the plaintiff, Joseph A.
Santos. Santos held a personal excess liability policy with Metropolitan that
included excess underinsured motorist (UIM) coverage. After Metropolitan
denied a claim made by Santos for excess UIM benefits, he brought this
declaratory judgment action. The trial court ruled that Metropolitan was liable
to Santos for excess UIM benefits. Metropolitan argues that the trial court
erred in so holding because Santos’s policy requires, as a precondition to
receiving excess UIM benefits, that he carry a certain amount of underlying
insurance coverage, and Santos did not do so. Santos argues that his lack of
sufficient underlying coverage allows Metropolitan to reduce its excess UIM
liability but not escape it altogether. We affirm.

       The trial court determined that the following material facts are
undisputed. Santos alleges that he was driving his motorcycle when he was
struck by an SUV. He claims that the collision was the result of the other
driver’s negligence and that he suffered debilitating injuries in the accident.
Santos further claims that, although the other driver carried insurance, his
damages exceed the other driver’s policy limits. Santos insured his motorcycle
with a policy from Allstate Insurance Company. That policy insured Santos’s
motorcycle for $25,000 per person and $50,000 per accident. He claims that
the Allstate policy also is insufficient to fully compensate him for the injuries
he suffered in the accident.

      Santos also held the policy with Metropolitan that is at issue. It provided
Santos with excess personal liability coverage as well as excess UIM coverage.
Santos submitted a claim to Metropolitan for excess UIM benefits pursuant to
this policy. Metropolitan denied his claim, asserting that the endorsement in
the policy that grants excess UIM coverage contains a precondition requiring
Santos to maintain a certain amount of underlying insurance on his
motorcycle, which Santos did not maintain.

       Santos then filed this declaratory judgment action to determine his
coverage under the Metropolitan policy. The parties filed cross-motions for
summary judgment. The trial court ruled that, notwithstanding Santos’s
failure to maintain the underlying insurance coverage specified in the excess
UIM endorsement, Metropolitan was required to provide Santos with excess
UIM benefits for the alleged injuries he suffered as a result of the accident. The
trial court further ruled that Metropolitan was liable to Santos for excess UIM
benefits only to the extent and in the amount it would have been liable had he
maintained the amount of underlying coverage specified in the excess UIM
endorsement. This appeal followed.

       In an appeal from the disposition of cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law. Newell v. Markel Corp., 169 N.H. 193, 195 (2016). If our review
of that evidence discloses no genuine issue of material fact and if the moving
party is entitled to judgment as a matter of law, then we will affirm the grant of
summary judgment. Id. We review the trial court’s application of the law to
the facts de novo. Id.



                                        2
      In a declaratory judgment action to determine the coverage of an
insurance policy, the burden of proof is always on the insurer, regardless of
which party brings the petition. Exeter Hosp. v. Steadfast Ins. Co., 170 N.H.
170, 174 (2017). The interpretation of insurance policy language is a question
of law that this court decides de novo. Id. The fundamental goal of
interpreting an insurance policy, as in all contracts, is to carry out the intent of
the contracting parties. Id. To discern the parties’ intent, we begin with an
examination of the insurance policy language. Id. In interpreting policy
language, we look to the plain and ordinary meaning of the policy’s words in
context. Id. We construe the terms of the policy as would a reasonable person
in the position of the insured based upon more than a casual reading of the
policy as a whole. Id. This is an objective standard. Id.

       Insurers are free to contractually limit the extent of their liability
provided that they violate no statutory provision by doing so. Russell v. NGM
Ins. Co., 170 N.H. 424, 429 (2017). Limitations must be stated in such clear
and unambiguous terms, however, that the insured can have no reasonable
expectation that coverage exists. Id. In determining whether an ambiguity
exists, we look to the claimed ambiguity and consider it in its appropriate
context. Id. If one of the reasonable meanings of the language favors the
policyholder, the ambiguity will be construed against the insurer, in order to
honor the insured’s reasonable expectations. Id. This doctrine is rooted in the
fact that insurers, as drafters of their policies, have a superior understanding
of the terms they employ. Exeter Hosp., 170 N.H. at 174. However, when the
policy language is clear, this court will not perform amazing feats of linguistic
gymnastics to find a purported ambiguity simply to construe the policy against
the insurer and create coverage where it is clear that none was intended.
Russell, 170 N.H. at 429.

        We turn to an examination of the policy itself. The Metropolitan policy
issued to Santos may be broken into three parts for the sake of analysis. The
first part consists of declarations. The declarations state the amount of excess
personal liability coverage as well as excess UIM coverage available under the
policy, in addition to the required amounts of underlying insurance.
Automobile insurance is listed as a type of required underlying insurance. The
declarations further state that the policy was “issued and rated” based in part
on the respective years, manufacturers, models, and body types of Santos’s
vehicles. (Capitalization omitted.) The second part of the policy consists of the
policy form itself. Section I of the policy form is the grant of excess personal
liability coverage. Section II contains exclusions from coverage. Section III
establishes conditions of coverage. Section IV provides definitions of certain
terms used elsewhere in the policy. Of importance to this case is Section III,
paragraph 7 of the policy form, which provides:




                                         3
            This policy requires you to have the types and amounts of
      insurance shown in the declarations pages. If you fail to maintain
      the required underlying policies for any reason, or if no
      insurance is available because an insured has breached a term or
      condition of any underlying policy, we will be liable only for the
      amount that we would have been liable for had you maintained
      the required insurance. You will be liable for the amount that
      would have been covered by the underlying policy.

     This paragraph establishes that, should Santos fail to maintain the
amount of underlying insurance specified in the declarations pages,
Metropolitan will only be liable for the amount it would have had to pay had
Santos maintained the correct amount of underlying coverage.

      The third part of the policy consists of endorsements attached to the
policy form. Of importance to this case is an endorsement titled “EXCESS
UNINSURED/UNDERINSURED MOTORISTS COVERAGE ENDORSEMENT.”
(Bolding omitted.) This endorsement states, “The Personal Excess Liability
Policy to which this endorsement applies, is extended to provide Excess
Uninsured/Underinsured Motorists Coverage up to the limits shown in the
declarations of the policy.” This language grants excess UIM coverage. The
endorsement also states, “As a precondition to receiving the benefits under this
endorsement, you shall maintain the underlying policy of automobile insurance
having uninsured/underinsured motorists coverage with split limits equal to or
greater than $100,000/$300,000 bodily injury or with a single limit of
$300,000 bodily injury.”

        The parties agree that the Allstate policy Santos had for his motorcycle is
the only underlying insurance policy relevant to this case. Santos concedes
that the Allstate policy did not provide the amount of underlying insurance
specified by the excess UIM endorsement. He argues that he is nevertheless
entitled to excess UIM benefits because the policy read as a whole allows
Metropolitan to offset its excess UIM liability by the underlying insurance limits
specified in the UIM endorsement, but it does not allow Metropolitan to escape
liability altogether. In the alternative, Santos argues that the difference
between Section III, paragraph 7 and the excess UIM endorsement with respect
to the consequences for his failure to maintain the required amount of
underlying insurance renders the policy ambiguous, and that the ambiguity
must be construed in his favor. See U.S. Automobile Assoc. v. Wilkinson, 132
N.H. 439, 442 (1989). Additionally, he references RSA 264:15, I (2014)
(amended 2015), and suggests that construing the policy to deny excess UIM
benefits in these circumstances may violate that statute.

     By contrast, Metropolitan argues that the excess UIM endorsement
makes Santos’s maintenance of the specified amount of underlying insurance a



                                        4
condition precedent to the availability of any excess UIM benefits.1
Metropolitan also argues that the difference between Section III, paragraph 7
and the excess UIM endorsement does not render the policy ambiguous
because the purpose of an endorsement is, by definition, to modify the policy to
which it is attached; therefore, the excess UIM endorsement unambiguously
states the rule for what is to happen given Santos’s failure to maintain the
required amount of underlying insurance. Finally, Metropolitan asserts that
the policy complies with RSA 264:15, I.

       As an initial matter, we conclude that the excess UIM endorsement
contains a condition precedent to excess UIM coverage that conflicts with
Section III, paragraph 7. A condition precedent is a provision that makes an
act or event contingent upon the performance or occurrence of another act or
event. Appeal of City of Manchester, 144 N.H. 386, 389 (1999). Conditions
precedent are not favored, however, and we will not construe contractual
provisions as conditions precedent unless required by the plain language of the
agreement. Holden Eng’g and Surveying v. Pembroke Rd. Realty Trust, 137
N.H. 393, 396 (1993). The plain language of the excess UIM endorsement
requires such a construction here. The excess UIM endorsement makes
Santos’s maintenance of the specified amount of underlying insurance a
“precondition” on the availability of excess UIM benefits. In general, provisions
which commence with words such as “if,” “on condition that,” “subject to,” and
“provided” create conditions precedent. Id. The excess UIM endorsement’s use
of the materially identical term “precondition” creates a condition precedent.

       So construed, the excess UIM endorsement is in direct conflict with
Section III, paragraph 7. These provisions provide incompatible remedies to
Metropolitan in the event of Santos’s failure to maintain sufficient underlying
coverage: the excess UIM endorsement purports to allow Metropolitan to
entirely deny excess UIM benefits should Santos fail to maintain sufficient
underlying coverage; Section III, paragraph 7, by contrast, does not allow
Metropolitan to entirely deny benefits for such a failure. See Israel v. State
Farm Mut. Auto. Ins. Co., 789 A.2d 974, 976-77 (Conn. 2002) (finding
insurance provisions in irreconcilable conflict where one provision purported to
allow insurer to entirely deny UIM coverage if the insured did not maintain
required amount of underlying coverage and other provision stated that insurer
would be entitled to a credit in the amount of the underlying insurance limits

1 Metropolitan also argues that the excess UIM endorsement contains a second precondition. The
excess UIM endorsement provides, “the benefits of this [endorsement] shall apply only after the
underlying policy’s uninsured/underinsured motorists coverage limits and all other collectible
uninsured/underinsured motorists benefits have been paid in full.” Metropolitan asserts that the
underlying policy limits will never be paid in full because Santos did not maintain the required
amount of underlying insurance, thus “this pre-condition can never be satisfied under the
circumstances of this case.” Metropolitan has failed to develop this argument sufficiently for our
review. Thus we do not consider it. See Lennartz v. Oak Point Associates, P.A., 167 N.H. 459,
464 (2015).


                                                5
set forth in the declarations if insured did not maintain required amount of
underlying coverage).

       Santos argues, and the trial court concluded, that the conflict between
the excess UIM endorsement and Section III, paragraph 7 renders the policy
ambiguous, requiring a construction in his favor. Santos is correct to note
that, when an ambiguity arises from conflicting provisions of a policy, we
resolve the inconsistency in favor of the insured. See Kelly v. Prudential Prop.
& Cas. Ins. Co., 147 N.H. 642, 643 (2002). However, we do not agree that the
conflict between the excess UIM endorsement and Section III, paragraph 7
creates an ambiguity. The purpose of an endorsement is, by definition, to
change the terms of the policy to which it is attached. See Ellis v. Royal Ins.
Co., 129 N.H. 326, 338 (1987), superseded by statute on other grounds as
stated in Cadell v. XL Specialty Ins. Co., Civil No. 11-cv-304-JD, 2012 WL
2359975 at *7 (D.N.H. June 20, 2012). “It is the general rule that . . . where
the provisions in the body of the policy and those in the endorsement or rider
are in irreconcilable conflict the provisions contained in the endorsement or
rider will prevail over those contained in the body of the policy.” National
Union Fire Ins. Co. v. Lumbermens Mut., 385 F.3d 47, 55 (1st Cir. 2004)
(quotation omitted); see also Schultz v. Hartford Fire Ins. Co., 569 A.2d 1131,
1136 (Conn. 1990); Cheaters, Inc. v. United Nat. Ins. Co., 41 A.3d 637, 644 n.9
(R.I. 2012); 45 C.J.S. Insurance § 607, at 70 n.14 (2018) (“An endorsement
cannot be read apart from the main policy, and added provisions will
supersede previous policy terms to the extent they are truly in conflict.”).
Thus, there is no ambiguity: the conflict between the excess UIM endorsement
and Section III, paragraph 7 compels the conclusion that the endorsement
controls. See Schultz, 569 A.2d at 1136.

       This does not end our inquiry, however. As the trial court noted,
whether this construction of the policy complies with RSA 264:15, I, must still
be determined. This requires us to engage in statutory interpretation. In
matters of statutory interpretation, we are the final arbiters of the legislature’s
intent as expressed in the words of a statute considered as a whole. STIHL,
Inc. v. State of N.H., 168 N.H. 332, 334 (2015). When construing a statute, we
first examine the language found in the statute, and, where possible, we
ascribe the plain and ordinary meanings to the words used. Id. We interpret
statutory provisions in the context of the overall statutory scheme. Id. at 335.

       The trial court correctly noted that construing the policy to include a
limitation on the availability of excess UIM benefits that was not also placed on
the availability of excess liability benefits would be in tension with RSA 264:15,
I. At the time of the accident in this case, that statute provided in pertinent
part that:




                                         6
              No policy shall be issued under the provisions of RSA
      264:14, with respect to a vehicle registered or principally garaged
      in this state, unless coverage is provided therein or supplemental
      thereto at least in amounts or limits prescribed for bodily injury or
      death for a liability policy under this chapter, for the protection of
      persons insured thereunder who are legally entitled to recover
      damages from owners or drivers of uninsured motor vehicles, and
      hit-and-run vehicles because of bodily injury, sickness, or disease,
      including death resulting therefrom. When an insured elects to
      purchase liability insurance in an amount greater than the
      minimum coverage required by RSA 259:61, the insured’s
      uninsured motorist coverage shall automatically be equal to the
      liability coverage elected. For the purposes of this paragraph
      umbrella or excess policies that provide excess limits to [motor
      vehicle liability policies] shall also provide uninsured motorist
      coverage equal to the limits of liability purchased unless the
      named insured rejects such coverage in writing.

RSA 264:15, I (emphasis added).

       The policy in this case is a “personal excess liability policy” that provides
coverage similar to an umbrella policy. We held in Wilkinson that a prior
version of this statute did not apply to such policies. See Wilkinson, 132 N.H.
at 448-49. At the time of the accident in Wilkinson, see id. at 441, the statute
contained no reference to umbrella or excess policies. See RSA 264:15, I (1982)
(amended 1988, 1991, 2007, 2018). Instead, by its terms, it applied only to
motor vehicle policies. See Wilkinson, 132 N.H. at 447. We said in Wilkinson
that the umbrella policy at issue “should not be characterized as a ‘motor
vehicle liability policy,’” within the meaning of RSA 264:15, because it did not
insure any vehicle in particular; rather, “it insure[d the decedent] against rare
catastrophic liability by providing excess coverage over and above that provided
by” the decedent’s motor vehicle liability policy. Id. at 446-47. We also noted
that the umbrella policy did “not provide the minimum amounts of coverage
required by statute” for motor vehicle liability policies. Id. at 447. For those
reasons, we concluded that RSA 264:15 did not equate motor vehicle liability
and umbrella policies, and because the statute applied only to the former, it
did not impose requirements on umbrella or excess policies. See id. at 448.
However, we invited the legislature, “[i]f [it] desire[d] uninsured motorist
coverage to equal liability coverage from any source, including umbrella-type
policies, . . . [to] amend the statute accordingly.” Id. at 449.

       Two years after Wilkinson, the legislature amended the statute. See
Laws 1991, 330:2. In 1991, the legislature added a third sentence to the
statute, which stated that “umbrella or excess policies that provide excess
limits to [motor vehicle policies], shall also provide [UIM] coverage equal to the



                                         7
limits of liability purchased, unless the named insured rejects such coverage.”
Id. This sentence was subsequently amended in 2007 to require the insured’s
rejection of UIM coverage to be “in writing.” Laws 2007, 302:1.

       We proceed to analyze whether the policy, as we have construed it,
violates RSA 264:15.2 Though we have not yet interpreted these amendments,
we have previously interpreted the first two sentences of the statute and
certain words used therein. See Gisonni v. State Farm Mut. Auto. Ins. Co., 141
N.H. 518, 519-21 (1996); Swain v. Employers Mut. Cas. Co., 150 N.H. 574,
576-78 (2004). The first sentence of the statute sets forth the basic
requirement that when an insurer provides motor vehicle liability coverage, it
must also provide UIM coverage in the same amounts and limits. Swain, 150
N.H. at 577. The uninsured motorist coverage provided must meet the
minimum statutory requirements for motor vehicle liability coverage. Gisonni,
141 N.H. at 520; Rivera v. Liberty Mut. Fire Ins. Co., 163 N.H. 603, 610 (2012).
The first sentence of the statute describes the insurer’s obligation to provide
such minimally sufficient UIM coverage by reference to both the “amounts” and
“limits” of required coverage. Swain, 150 N.H. at 577. Unlike the first
sentence, the second sentence of the statute (often referred to as the “elective
coverage provision”) includes only the word “amount,” not the word “limits.”
Swain, 150 N.H. at 577.

       In Gisonni, we determined whether, when an insured purchased motor
vehicle liability coverage with a territorial scope broader than statutorily
required, the insurer was required to issue UIM coverage with an identical
territorial scope. See Gisonni, 141 N.H. at 519. The motor vehicle liability policy
in that case “extended general liability coverage to losses occurring in the United
States, Canada, and Mexico within fifty miles of the United States boundary, but
limited [UIM] coverage to the United States and Canada only.” Id. at 518-19.
The plaintiff was injured in an automobile accident in Mexico, within fifty miles
of the Mexico-United States border, and sought UIM benefits under the policy.
Id. We emphasized that the elective coverage provision of the statute “applies
when an insured purchases liability insurance in an amount greater than the
minimum statutory requirement.” Id. at 520 (quotation omitted); see RSA
264:15, I. “Thus the [elective coverage] provision is triggered by an insured’s
decision to purchase insurance with monetary limits in excess of the statutory
minimum.” Gisonni, 141 N.H. at 520. We highlighted that the elective coverage
provision’s language differed from the language of the first sentence of the
statute, which spoke to the insurer’s obligation to issue UIM coverage in both
“amounts” and “limits” that comport with minimum statutory requirements. Id.
Based on the omission of the word “limits” in the elective coverage provision, we
held that the insured’s decision to purchase a motor vehicle liability policy with a

2Metropolitan, in its brief, does not contest the statute’s applicability to Santos’s policy. At oral
argument, Metropolitan agreed that Santos’s policy provided “excess liability coverage for use of
automobiles and the like.”


                                                   8
greater territorial scope than mandated by statute did not require the insurer to
issue UIM coverage with an identical territorial scope. See id.

        We re-affirmed this understanding of RSA 264:15, I, in Swain. Swain,
150 N.H. at 577-78. There, the motor vehicle policy provided liability coverage
for both owned and non-owned vehicles, but the policy’s UIM coverage
extended only to owned vehicles. Id. at 576. The plaintiff argued that this
discrepancy violated RSA 264:15, I. See id. We rejected this argument, and re-
affirmed that “the elective coverage provision does not mandate complete
mutuality between [motor vehicle] liability and [UIM] coverage.” Id. at 578.
The basis for this re-affirmation was, again, the difference in language between
the first sentence of the statute and the elective coverage provision. See id. at
577-78. We explained that the first sentence requires the insurer to issue UIM
coverage equal to the minimum statutory requirements for liability coverage in
both “amounts” and “limits,” but, when the insured purchases motor vehicle
liability coverage over and above what is required by law, the elective coverage
provision only requires the insurer to provide UIM coverage in a matching
dollar “amount,” not with matching “limits.” Id.

        The foregoing demonstrates that the word “limits” as used in RSA
264:15, I, has a different meaning than the words “amount” or “amounts.” See
Gisonni, 141 N.H. at 519-20; Swain, 150 N.H. at 577-78; see also Trombley,
148 N.H. at 752 (“The statute requires that a policy providing [motor vehicle]
liability coverage to an insured also provide [UIM] coverage to that insured with
the same monetary limits, although not necessarily with the same scope.”);
Wyatt v. Maryland Cas. Co., 144 N.H. 234, 239 (1999) (“The statute merely
requires that where an insured chooses to purchase [motor vehicle] liability
coverage greater than the statutory minimum, [UIM] coverage shall be equal to
that amount.”). Liability and UIM coverage are equal in amount when they are
equal in monetary coverage. See Swain, 150 N.H. at 577. Liability and UIM
coverage are equal in limits when they are equal in scope, i.e., when they afford
coverage in the same circumstances.3 See id. at 578.

      Unlike the first two sentences of the statute, however, the third sentence
of RSA 264:15, I, requires providers of “umbrella or excess policies that provide

3 We note that the elective coverage provision was amended in 2015, after the accident in this case
occurred. See Laws 2015, 237:1. The elective coverage provision now provides, “[w]hen an
insured elects to purchase liability insurance in an amount greater than the minimum coverage
required [for motor vehicle liability policies], the insured’s uninsured motorist coverage shall
automatically be equal in amounts and limits to the liability coverage elected.” RSA 264:15, I
(2014) (Supp. 2017) (emphasis added). Because the accident in this case occurred prior to this
amendment, and because this case does not directly concern the elective coverage provision, we
express no view on the effect of this amendment. See Appeal of White Mountain Regional Sch.
Dist., 154 N.H. 136, 139 (2006) (“An amendment to an existing law that affects contract rights is
presumed to operate prospectively unless the language of the amendment or surrounding
circumstances express a contrary legislative intent.”).


                                                9
excess limits” to motor vehicle policies to “provide [UIM] coverage equal to the
limits of liability purchased.” RSA 264:15, I (emphasis added). Based on the
meaning we have ascribed to the word “limits” as used in the statute, this
sentence means an insurer that issues an umbrella or excess policy that
provides excess coverage to motor vehicle liability policies must provide excess
UIM coverage with the same scope. See Swain, 141 N.H. at 578; see also
Appeal of Int’l Bhd. of Police Officers, 148 N.H. 194, 195 (2002) (“Words used
with plain meaning in one part of a statute are to be given the same meaning in
other parts of the statute unless a contrary intention is clearly shown.”
(quotation omitted)). Excess UIM coverage must be available in the same
circumstances that excess motor vehicle liability coverage is. See Swain, 141
N.H. at 578.

      The precondition contained in the excess UIM endorsement attached to
Santos’s policy violates this sentence of the statute. Section III, paragraph 7 of
the policy establishes that excess liability coverage is available to the insured
even when he does not maintain sufficient underlying coverage. The
precondition in the excess UIM endorsement, however, purports to allow the
insurer to entirely deny coverage when the insured maintains insufficient
underlying coverage. Thus, the precondition attempts to make excess UIM
coverage unavailable in the same circumstances in which the policy provides
excess motor vehicle liability coverage.

       The parties to an insurance contract may not by agreement limit the
required coverage in contravention of RSA chapter 264. Wegner v. Prudential
Prop. & Cas. Ins. Co., 148 N.H. 107, 109 (2002). Hence, a provision which
conflicts with the statute cannot be a valid part of the insurance contract and
has no effect. Universal Underwriters Ins. Co. v. Allstate Ins. Co., 134 N.H.
315, 318 (1991). Because the portion of the excess UIM endorsement that
makes Santos’s maintenance of underlying UIM coverage a precondition
creates a discrepancy in respective scopes of coverage, it has no effect. See id.
Furthermore, the illegality of the precondition does not operate to invalidate the
remaining provisions of the policy. See Peerless Ins. Co. v. Vigue, 115 N.H.
492, 495 (1975). That is especially true where, as here, the policy contains a
condition which states, “Any provisions of this policy that conflict with the laws
of the state in which you reside at the time this policy is issued are amended to
conform with those laws.” See 15 Grace McLane Giesel, Corbin on Contracts,
§ 89.4, at 629 (rev. ed. 2003). Accordingly, we hold that Metropolitan is liable
to Santos for excess UIM benefits to the extent and in the amount that it would
have been liable if Santos had underlying UIM coverage with policy limits of
$100,000/$300,000.

                                                  Affirmed.

      LYNN, C.J., and BASSETT and DONOVAN, JJ., concurred.



                                        10
