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                   THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Hillsborough-northern judicial district
No. 2016-0639


                                   BRIAN LANGEVIN & a.

                                           v.

                          TRAVCO INSURANCE COMPANY

                           Argued: September 27, 2017
                          Opinion Issued: March 30, 2018

      Backus, Meyer & Branch, LLP, of Manchester (BJ Branch on the brief
and orally), for the plaintiffs.


      Primmer Piper Eggleston & Cramer PC, of Manchester (Doreen F. Connor
on the brief and orally), for the defendant.


      Douglas, Leonard & Garvey, P.C., of Concord (Megan Douglass on the
brief), for the New Hampshire Association for Justice, as amicus curiae.

       BASSETT, J. The plaintiffs, Brian and Nancy Langevin, appeal an order
of the Superior Court (Brown, J.) denying their motion for summary judgment
and granting summary judgment to the defendant, Travco Insurance Company
(Travco). The trial court ruled that the plaintiffs were not entitled to payment
from Travco under their medical payments coverage to pay a lien asserted by
the plaintiffs’ health insurer because such payment would constitute a
“duplicate payment” contrary to the language of both RSA 264:16, IV (2014)
and the plaintiffs’ automobile insurance policy with Travco. We reverse and
remand.

      The following relevant facts are derived from the trial court’s order or are
otherwise undisputed. On October 4, 2014, the plaintiffs were injured in a
motor vehicle accident. At the time of the accident, the plaintiffs had health
insurance coverage through Aetna. They also had an automobile insurance
policy with Travco that included medical payments coverage of $25,000 per
person. That policy provides:

      A. We will pay reasonable expenses incurred for necessary
         medical and funeral services because of “bodily injury”:

          1. Caused by accident; and

          2. Sustained by an “insured.”

The policy also includes an endorsement that modifies the medical payments
coverage and provides that:

      B. No one will be entitled to receive duplicate payments for the
         same elements of loss under this coverage and a health
         insurance policy.

Similarly, RSA 264:16, governing medical payments coverage in automobile
liability policies, provides:

      IV. The insured shall have the exclusive right to submit a claim for
      medical expenses under either medical payments coverage or a
      health insurance policy or both, as the insured elects; provided,
      however, an insured shall not be entitled to duplicate payment
      from medical payments coverage and a health insurance policy for
      the same medical expense.

RSA 264:16, IV (emphases added).

       Following the accident, the plaintiffs submitted their medical expenses,
totaling $6,820.33, to Aetna. Aetna negotiated with the providers and paid
$1,861.90 in full satisfaction of the medical expenses. The plaintiffs also
submitted a claim to Travco for other medical expenses not covered by Aetna,
including co-pays and deductible payments, which Travco paid.




                                        2
       Subsequently, the plaintiffs reached a settlement with the driver
responsible for the accident. Aetna then asserted a lien against this settlement
for the $1,861.90 payment that it had made for the plaintiffs’ medical
expenses. The plaintiffs paid Aetna $1,500.00 in partial satisfaction of the lien
amount and informed Aetna that they would leave the remaining $361.90
unpaid “until we resolve the issue of whether medical payment coverage can be
used to pay the lien.” The plaintiffs, in turn, submitted a claim to Travco
under their medical payments coverage, requesting the entire lien amount of
$1,861.90. Travco denied the claim, asserting that it was neither contractually
nor statutorily obligated to pay the lien.

       The plaintiffs filed suit seeking a declaratory judgment that they are
entitled to payment from Travco in the amount of Aetna’s lien. The parties filed
cross-motions for summary judgment. The trial court ruled in Travco’s favor.
It concluded that, because the plaintiffs “have submitted to and received
payment from Aetna for [the] medical expenses, it is axiomatic that requiring
Travco to pay for a lien based upon those same exact medical expenses
constitutes a duplicate payment” under RSA 264:16, IV and the Travco policy
language. The trial court further stated that “Aetna’s ability to assert rights on
a certain settlement . . . is wholly inapposite to whether payment for medical
expenses was made in the first instance.” The trial court denied the plaintiffs’
motion to reconsider, and this appeal followed.

       In reviewing a trial court’s rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the non-moving 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. Russell v. NGM Insurance Company, 170 N.H. ___, ___ (decided
Nov. 15, 2017) (slip op. at 2). 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.

       On appeal, the plaintiffs argue that the trial court erred when it
concluded that the plaintiffs’ receipt of payment from Travco for Aetna’s lien
would constitute a prohibited duplicate payment under both RSA 264:16, IV
and the policy. Because “a provision which conflicts with the Financial
Responsibility Law [RSA chapter 264] cannot be a valid part of [a] contract of
insurance,” Universal Underwriters Ins. Co. v. Allstate Ins. Co., 134 N.H. 315,
318 (1991), we first interpret RSA 264:16, IV, and then construe the policy in
light of our interpretation of the statute.

      We review the trial court’s interpretation of a statute de novo. Wells
Fargo Bank v. Schultz, 164 N.H. 608, 610 (2013). In matters of statutory
interpretation, we are the final arbiter of the intent of the legislature as
expressed in the words of the statute considered as a whole. Petition of


                                        3
Carrier, 165 N.H. 719, 721 (2013). We first look to the language of the statute
itself, and, if possible, construe that language according to its plain and
ordinary meaning. Id. We interpret legislative intent from the statute as
written and will not consider what the legislature might have said or add
language that the legislature did not see fit to include. Id. We construe all
parts of a statute together to effectuate its overall purpose and avoid an absurd
or unjust result. Id. Moreover, we do not consider words and phrases in
isolation, but rather within the context of the statute as a whole. Id. This
enables us to better discern the legislature’s intent and to interpret statutory
language in light of the policy or purpose sought to be advanced by the
statutory scheme. Id. Absent an ambiguity, we will not look beyond the
language of the statute to discern legislative intent. segTEL v. City of Nashua,
170 N.H. 118, 120 (2017).

       The plaintiffs argue that the trial court erred when it ruled that the
plaintiffs’ receipt of payment from Travco to satisfy Aetna’s lien would
constitute a “duplicate payment” in violation of RSA 264:16, IV. The plaintiffs
argue that “payment” as used in paragraph IV means only those payments
made directly to the insured by the health insurer or the automobile insurer.
Travco counters that “payment” embodies a broader concept, including
“payment . . . made on [the insureds’] behalf.” The plaintiffs respond that, even
if Travco is correct as to the meaning of “payment,” they prevail because
Travco’s payment of the lien on their behalf would not be a “duplicate”
payment. Assuming, without deciding, that Travco’s more expansive
interpretation of “payment” is correct, we agree with the plaintiffs that Travco’s
payment of Aetna’s lien would not constitute a “duplicate payment” that
violates RSA 264:16, IV.

       The plaintiffs assert that Travco’s payment of Aetna’s lien — directly to
them or on their behalf — would not be a duplicate payment. They argue that,
although Aetna initially paid the healthcare providers on their behalf, the effect
of that payment was negated by Aetna’s subsequent lien, and, therefore, they
have not received the benefit of a payment from either Aetna or Travco for the
medical expenses. Travco responds that its payment of the lien on the
plaintiffs’ behalf would constitute an improper “duplicate payment” because it
would result in the plaintiffs’ “enrich[ment]” from both insurers for the same
medical expense. It asserts that its payment of the lien would result in the
plaintiffs being enriched by both insurers because Aetna has already paid the
same underlying medical expenses on the plaintiffs’ behalf. Thus, the parties
appear to agree that “duplicate payment” occurs when an insured receives the
benefit of payment, either directly or on his or her behalf, from both insurers
for the same medical expense. However, they disagree about whether Travco’s
payment of the Aetna lien in this case would result in a prohibited “duplicate
payment” to the plaintiffs. We agree with the plaintiffs that it would not.




                                        4
       Aetna paid the plaintiffs’ healthcare providers $1,861.90 for certain
medical expenses. There is no evidence in the record that it has made any
direct payments to the plaintiffs. In fact, the plaintiffs have personally paid
Aetna $1,500.00, and are obligated to pay Aetna the remainder of the lien. Nor
have the plaintiffs received the benefit of a payment on their behalf. The
plaintiffs initially received the benefit of a payment of $1,861.90 on their behalf
from Aetna to the healthcare providers. However, both Travco and the trial
court overlook the critical importance of an additional fact: that Aetna later
asserted a lien against the plaintiffs’ settlement with the tortfeasor in the
amount of the medical expenses that Aetna had paid. That lien negated the
effect of Aetna’s prior payment of medical expenses on the plaintiffs’ behalf
because the plaintiffs are now obligated to reimburse Aetna. Put differently:
the plaintiffs initially received the benefit of a payment on their behalf from
Aetna. The benefit of that payment was completely offset by Aetna’s
subsequent lien, leaving the plaintiffs without the benefit of a payment from
either their health insurer or their automobile insurer for the medical expenses
at issue. Consequently, because the plaintiffs did not retain the benefit of
Aetna’s prior payment on their behalf, Travco’s payment of the Aetna lien —
either directly to the plaintiffs or on their behalf — would not result in the
plaintiffs benefiting from payment from both insurers for the same medical
expense. Therefore, we conclude that Travco’s payment of Aetna’s lien would
not constitute a prohibited “duplicate payment” under RSA 264:16, IV.

       The plaintiffs argue that this interpretation of the statute is consistent
with the legislative intent expressed when viewing the “duplicate payment”
language in the context of the statute as a whole. Specifically, they argue that
RSA 264:16, IV provides insureds with a right to submit a claim to either their
health insurer or their automobile insurer, or both insurers, and evidences the
legislature’s intent to emphasize “consumer choice,” and “to ensure that
benefits are coordinated in the manner which most benefits the consumer.”
Although the plaintiffs argue that the insured has the right to submit a claim
to both insurers, they acknowledge that, through the prohibition on “duplicate
payments,” the legislature intended to prevent an insured from “double dipping
by submitting the exact same bills to the two [insurers] and receiving payment
twice, once from each [insurer].” Travco counters that the plaintiffs are
incorrect because the statute does not allow an insured to submit a claim for
the same medical expense to both their health insurer and automobile insurer,
but, rather, it merely allows the insured the right to “elect which insurance
plan will provide primary benefits.” Further, it asserts that if insureds were
entitled under RSA 264:16, IV “to submit the same bills to both plans, the
statute . . . would not contain language prohibiting duplicate payments.” We
agree with the plaintiffs.

     RSA 264:16, IV provides the insured with the “exclusive right” to “elect[]”
whether “to submit a claim for medical expenses under either medical
payments coverage or a health insurance policy or both.” RSA 264:16, IV


                                         5
(emphases added). Nothing in the plain language of this provision suggests
that, as Travco contends, the insured must choose a “primary insurer,” and we
will not “add language that the legislature did not see fit to include.” Petition of
Carrier, 165 N.H. at 721. Rather, the plain language states that the insured
may elect to submit a claim “under either . . . or both” types of insurance. RSA
264:16, IV. This language evidences legislative intent to ensure an insured’s
choice over how to use his or her health and automobile insurance benefits.
See Petition of Carrier, 165 N.H. at 721 (stating that we interpret “the intent of
the legislature as expressed in the words of the statute considered as a whole”).

       The legislative intent to safeguard the insured’s choice over how to use
his or her benefits is also expressed elsewhere in the statute. For example,
RSA 264:16, II gives an insured the right to control how his or her insurance
benefits are utilized by prohibiting health insurers from “coordinat[ing] benefits
against medical payments coverage” provided by automobile insurers. RSA
264:16, II (2014). The statute also gives the insured control of his or her
benefits by providing that “[m]edical payments coverage shall not be assignable
to any health care provider.” RSA 264:16, III (2014). Both of these provisions
evince a legislative intent to protect the insured from being forced to use his or
her benefits in a particular way — thereby preserving the insured’s choice and
control over how to utilize his or her separate insurance benefits. This right of
the insured is then limited by the “duplicate payment” language, which
prevents the insured from getting a windfall; in other words, from receiving and
retaining double payment for the same medical expense from both his or her
health insurer and automobile insurer. Thus, the legislative intent of the
statute, considered as a whole, supports our interpretation of “duplicate
payment,” an interpretation which gives the plaintiffs the opportunity to use
insurance benefits under both insurance policies for which they have paid, but
does not permit the plaintiffs to retain the benefit of payment from both
insurers.

       Although our interpretation does not allow the plaintiffs to retain the
benefit of payment from both a health insurer and an automobile insurer for
the same medical expense, we recognize that it does leave open the possibility
that the plaintiffs will receive a double benefit in a different sense — they may
receive and retain the benefit of medical payments coverage, and a recovery
from the third-party tortfeasor. This type of double benefit is not prohibited by
RSA 264:16, IV. The plain language of RSA 264:16, IV prohibits duplicate
payments for the same medical expense from only two sources: “medical
payments coverage and a health insurance policy.” RSA 264:16, IV. It does
not address payments — duplicate or otherwise — from a tortfeasor or a
tortfeasor’s liability insurer. See RSA 264:16, IV. Because the statute
expressly prohibits “duplicate payment” only from medical payments coverage
and a health insurance policy — with no reference to payments from the
tortfeasor or the tortfeasor’s liability policy — we construe the prohibition on
“duplicate payment” as applying only to medical payments from health insurers


                                         6
and automobile insurers. See St. Joseph Hosp. of Nashua v. Rizzo, 141 N.H. 9,
11-12 (1996) (“Normally the expression of one thing in a statute implies the
exclusion of another.” (quotation omitted)); Petition of Carrier, 165 N.H. at 721
(stating that, in matters of statutory interpretation, we will not “add language
that the legislature did not see fit to include”).

       Moreover, in other contexts, we have acknowledged that an accident
victim’s recovery from both an insurer and a tortfeasor is permitted. See, e.g.,
Wolters v. Am. Republic Ins. Co., 149 N.H. 599, 602-03 (2003) (holding that,
absent a health insurer’s contractual right to subrogation, plaintiff may receive
both health insurance benefits and tortfeasor recovery); Moulton v. Groveton
Papers Co., 114 N.H. 505, 509 (1974) (observing that, under the collateral
source rule, if a plaintiff is compensated in whole or in part for his damages by
some source independent of the tortfeasor, he is still permitted to make full
recovery against the tortfeasor). In those contexts, the ability of the plaintiff to
receive a double benefit was premised upon certain policy considerations,
including: (1) that ordinary tort damages may not adequately compensate
accident victims; and (2) that an insured should be able to receive the benefit
that she has paid for in the form of insurance premiums, even if also
compensated by a tortfeasor. See Wolters, 149 N.H. at 602-03 (observing, in
the context of refusing to recognize health insurer’s equitable right to
subrogation, that recovery from both health insurer and tortfeasor does not
necessarily produce a windfall double recovery because “[l]ife and death,
health, physical wellbeing, and such matters are incapable of exact financial
estimation” (quotation omitted)); Moulton, 114 N.H. at 509-10 (discussing
policy justifications for collateral source rule, including that the plaintiff has
paid for the insurance benefits he or she may receive in addition to third-party
recovery, and that ordinary damages are inadequate to fully compensate
plaintiff). Our interpretation of RSA 264:16, IV — which prohibits an insured
from receiving a benefit from both a health insurer and an automobile insurer
for the same medical expense, but allows the insured to receive both the
benefit of medical payments coverage and recovery from a tortfeasor — is
consonant with these policy considerations.

       Our interpretation of the statute is also in accord with the principle that
we “construe all parts of a statute together to effectuate its overall purpose and
avoid an absurd or unjust result.” Petition of Carrier, 165 N.H. at 721. At oral
argument, Travco acknowledged that, had the plaintiffs submitted the medical
expenses at issue to Travco in the first instance, the plaintiffs would have been
entitled to full payment from Travco. Travco further acknowledged that, under
that scenario, the plaintiffs would have been entitled to both their recovery
from the third-party tortfeasor, as well as Travco’s direct payment to the
medical providers of the full $6,820.33. At oral argument, Travco also
conceded that, under those circumstances, it would have no subrogation rights
against the settlement. See RSA 264:17 (2014) (providing that automobile
insurers that provide medical payments coverage as described in RSA 264:16


                                         7
shall not have a right of subrogation against a third party). Nonetheless,
Travco argues that, because the plaintiffs first submitted their claim to Aetna,
they are entitled to only their third-party settlement less the $1,861.90 in
medical expenses Aetna initially paid on their behalf. This interpretation of the
statute, which would result in two significantly different outcomes as a
consequence of which claim is submitted to which insurer first, would, in
essence, deprive the insureds of the benefit of one of the two insurance policies
that they had paid for. This would also frustrate the overarching purpose of
the Financial Responsibility Act “to provide compensation to persons harmed
by the negligent operation of motor vehicles,” Progressive N. Ins. Co. v.
Enterprise Rent-A-Car Co., 149 N.H. 489, 492 (2003), and would be
inconsistent with the legislature’s intent as expressed in RSA 264:16 to protect
the insured’s freedom to choose how to utilize his or her benefits.

      Notably, and perhaps ironically, if Travco is required to provide medical
payments coverage, it will benefit from the fact that the plaintiffs first
submitted the claim to Aetna. Had the plaintiffs initially submitted their
medical expenses claim directly to Travco, as the statute permits, see RSA
264:16, IV, Travco concedes it would have been obligated to pay the full cost —
$6,820.33. However, because the plaintiffs elected to first submit their claim
to Aetna, Aetna obtained a discount and lowered the amount of the bill, leaving
Travco with a potential exposure of only $1,861.90.

      Travco also argues that its payment of “the health care providers’ lien” is
prohibited by RSA 264:16 and RSA 264:17 because allowing payment would be
“the equivalent of allowing the health care provider to seek assignment and/or
subrogation contrary to both” of the statutes. Although Travco uses the term
“health care provider” in making this argument, this case involves a lien
asserted by Aetna, a health insurer. Travco has not identified any lien asserted
by a health care provider. Therefore, we construe Travco’s argument as
asserting that payment of the lien would be the equivalent of allowing Aetna —
the health insurer — to seek assignment or subrogation contrary to the
statutes. We disagree. RSA 264:16 prohibits the assignment of medical
payments coverage to any health care provider. RSA 264:16, III. However,
Travco’s reliance upon that provision is misplaced: Aetna is not a health care
provider; rather, it is a health insurer. See RSA 264:16, II-III (referring to
“health care provider” as distinct from “health carrier as defined in RSA 420-
G:2, VIII”); RSA 420-G:2, VIII (2015) (defining “[h]ealth carrier” as “any entity
subject to the insurance laws and rules of this state . . . including an insurance
company”). Therefore, RSA 264:16, III is inapposite.

      Similarly, Travco’s reliance upon RSA 264:17 is misplaced. RSA 264:17
provides that automobile insurers who have paid or reimbursed insureds for
medical expenses under medical payments coverage do not have “[t]he right of
subrogation against any third party.” RSA 264:17. Thus, RSA 264:17
prohibits automobile insurers that have made payments to, or for the benefit


                                        8
of, the insured under medical payments coverage from acquiring or asserting
subrogation rights. By contrast, the statute is silent as to the subrogation
rights of health insurers, like Aetna. Indeed, we have found no statute
governing the subrogation rights of health insurers. Cf. RSA 448-A:1 (2002)
(granting hospitals and home health care providers the statutory right to a lien
upon patient’s recovery from third party when patient’s injury is caused by an
accident). Rather, health insurers may acquire subrogation rights by contract,
via their policies with insureds. See Wolters, 149 N.H. at 604 (holding that “a
health insurance company has no common law or equitable right to
subrogation, and that if such a company desires protection against loss caused
by the wrongs of third persons who would ordinarily be liable they must do so
by the contracts they make” (quotation and brackets omitted)). Thus, Aetna’s
assertion of its subrogation rights against the plaintiffs’ recovery from the
third-party tortfeasor is not contrary to RSA 264:17.

     In sum, we conclude that the trial court erred when it ruled that a
payment from Travco for Aetna’s lien would constitute a prohibited “duplicate
payment” under RSA 264:16, IV.

       We now turn to the plaintiffs’ final argument: that the trial court erred
when it found that the “duplicate payments” language in the Travco policy
prohibited them from receiving payment from Travco for the lien. Resolving
this issue requires us to interpret the Travco policy. We interpret insurance
policy language de novo. See Russell, 170 N.H. at ___ (slip op. at 3). The
relevant policy language states: “No one will be entitled to receive duplicate
payments for the same elements of loss under this coverage and a health
insurance policy.” This language is similar to the language of RSA 264:16, IV
that we have already construed. The plaintiffs contend that the policy
language should be interpreted in the same fashion as RSA 264:16, IV. Travco
argues that the policy should be interpreted consistent with its contrary
construction of the statute. Because we agree with the plaintiffs’ interpretation
of the statute, we also agree with their interpretation of the policy.

      Travco acknowledges that the policy language “tracks RSA 264:16[, IV].”
Given that the policy language tracks the statutory language prohibiting
duplicate payment, and that Travco does not premise its argument upon any
asserted language differences between the statute and the policy, we interpret
the policy in the same way that we interpret the statute. Cf. Santos v.
Lumbermens Mut. Cas. Co., 556 N.E.2d 983, 990-91 (Mass. 1990) (interpreting
insurance policy language in same way as nearly identical statutory language).
Therefore, we conclude that the plaintiffs’ receipt of payment from Travco for
Aetna’s lien would not be prohibited as a “duplicate payment” under the policy.
The trial court’s ruling to the contrary was error.

      Finally, to the extent that the parties also dispute whether a health
insurance lien is a “medical expense” under RSA 264:16, IV and the policy, we


                                        9
decline to address their arguments. Although this issue appears to have been
raised before the trial court, the trial court did not expressly address it. On
appeal, neither party has presented us with a fully developed legal argument
regarding interpretation of the term “medical expense” under the statute and
the similar policy language “reasonable expenses incurred for necessary
medical . . . services.” Nor have the parties developed legal arguments about
the impact adopting their respective interpretations would have on the
disposition of this appeal. Because we confine our review to only those issues
that the parties have fully briefed, we deem these arguments waived. See State
v. Blackmer, 149 N.H. 47, 49 (2003).

                                                Reversed and remanded.

      DALIANIS, C.J., and LYNN and HANTZ MARCONI, JJ., concurred.




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