Poirier v. Vermont Mutual Ins. Company, 338-4-20 Cncv (Hoar, J., July 30, 2021)

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VERMONT SUPERIOR COURT CIVIL DIVISION

Chittenden Unit

175 Main Street, PO Box 187

Burlington VT 05402

802-863-3467

www.vermontjudiciary.org

Case No. 338-4-20 Cncv

Poirier vs. Vermont Mutual Insurance Company et al

DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

This is an underinsured motorist coverage (“UIM”) dispute. Plaintiff Cameron Poirier was a 

passenger in a vehicle insured by Defendant Progressive Insurance Company (“Progressive”) when 

that vehicle was struck by an underinsured motor vehicle. Mr. Poirier had his own automobile policy, 

with Defendant Vermont Mutual Insurance Company (“VMIC”). The parties agree that each of 

Progressive and VMIC owe Mr. Poirier a UIM obligations, and they agree further as to the amount of 

coverage that is due. The two insurers disagree, however, as to the priority of coverage, and hence their 

respective contributions. They have filed cross-motions for summary judgment. The court grants 

Progressive’s motion, and denies VMIC’s.

The material facts are undisputed. Mr. Poirier was the passenger in a vehicle driven by Michael 

Gravel when it collided with another vehicle driven by Erick Carter. Mr. Poirier sustained serious 

injuries in the accident. He recovered a total of $75,000 from Mr. Carter’s and Mr. Gravel’s liability 

insurers. This recovery, however, left him with a substantial underinsured loss. The precise measure of 

that loss does not appear and is not material; the parties agree it is in excess of $150,000.

Progressive was Mr. Gravel’s insurer; in addition to its liability coverage, its policy provides 

UIM coverage with a $50,000 limit of liability. That coverage is available to Mr. Poirier as an 

occupant of Mr. Gravel’s “covered vehicle.” Mr. Poirier also had his own automobile insurance policy 

through VMIC; that policy provides UIM coverage with an applicable limit of $100,000. The parties 

agree that the two UIM coverages “stack,” providing Mr. Poirier with $150,000 in UIM coverage. 

They also agree that the insurers, together, are entitled to offset against their combined limits the 

$75,000 in liability payments Mr. Poirier received. They disagree, however, as to priority of coverage. 

They agree that whichever of them is primary gets the benefit of the liability setoff. Together, they 

have paid Mr. Poirier the full $75,000 in UIM benefits to which he is entitled. All that remains is to 

allocate that payment between the two UIM insurers.
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Resolution of this question is driven by the Supreme Court’s teachings in State Farm v. 

Powers, 169 Vt. 230 (1999). There, the Court held that UIM “provisions that merely establish the 

priority of coverage among insurers without compromising coverage for insureds” are enforceable. Id. 

at 235. The Court then turned to the policies at issue. Construing language substantially similar to that 

contained in both policies here, the Court concluded that the policy that covered the vehicle in which 

the UIM insured was a passenger was primary, and the policies issued to the UIM insured and his 

parents (with whom he resided, making him also an insured) were excess. Id. at 239.

Powers makes clear that at least in the first instance, resolution of the primary-excess question 

is a matter of policy interpretation. Thus, the court examines the policies at issue in this case. The 

“Other Insurance” provision of the Progressive policy reads:

If there is other applicable uninsured or underinsured motorist coverage, and the 

damages are less than the sum of all applicable limits of liability for uninsured motorist 

coverage or underinsured motorist coverage, we will pay only our share of the damages. 

Our share is the proportion that our limit of liability bear to the total of all available

coverage limits. However, any insurance we provide with respect to a vehicle that is not 

a covered auto will be excess over any other uninsured or underinsured motorist 

coverage.

The “Other Insurance” provision of the VMIC policy reads:

If there is other applicable insurance similar to the insurance provided under this Part of 

the Policy we will pay only our share of the loss. Our share is the proportion that our 

limit of liability bears to the total of all applicable limits. However, any insurance we 

provide with respect to a vehicle you do not own shall be excess over any other 

collectible insurance similar to the insurance provided under this Part of the Policy.

On this language, each of the insurers here argues that its policy is clearly primary, while the other’s is 

clearly excess. VMIC’s approach, however, depends on a misconception as to the nature of UIM 

coverage, which in turn leads it to misread both policies.

VMIC first argues, correctly, that it is the third sentence of the Progressive provision quoted 

above that governs. It proceeds to assert that the insurance afforded by the Progressive policy is

provided “with respect to” Mr. Carter’s vehicle. See VMIC’s Mot. for Summ. J., This betrays a 

fundamental misunderstanding of the nature of UIM coverage; it also ignores the context in which the 

excess clauses at issue here come into play. (The second error, coincidentally, results in VMIC’s 

misreading its own policy—but more on that later.)

As a matter of first principles, UIM coverage is not issued “with respect to” vehicles, as is the 

case (in part) with liability coverage; it is issued with respect to individuals. It applies whenever an 

insured person is “legally entitled to recover damages” from the owner or operator of an underinsured 
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motor vehicle. 23 V.S.A. § 941(As the two policies at issue in this case reflect, there are, broadly 

speaking, two circumstances in which the injured person is an insured: first, the person may be the 

named insured or a family member of a named insured under a policy; and second, the person may be 

occupying a vehicle owned and insured by another person.1In the former instance, the insurance is 

portable; it follows the insured from vehicle to vehicle, and even provides coverage if the insured is a 

pedestrian or is injured, in the comfort of his own home, by an uninsured vehicle that crashed into the 

home. See Hubbard v. Metrop. Prop. & Cas. Ins. Co., 2007 VT 121, ¶ 10, 182 Vt. 501 (citing Monteith 

v. Jefferson Ins. Co. of N.Y., 159 Vt. 378, 381 (1992)). In the latter instance, the insurance is tied to the 

vehicle; the moment the insured leaves the vehicle, the insurance obligation ends. For ease of 

reference, the first category of insureds might be called “status” insureds, as their coverage depends on 

their status as named insureds or family members; the second category might be called “location” 

insureds, as their coverage depends on their location in an insured vehicle.

Thus, there are, broadly speaking, two instances in which two or more policies may provide 

UIM coverage to a single insured. First, a person may be a status insured under more than one policy—

as, for example, when the person is the named insured under one policy and a family member of the 

named insured under another. Second, like Mr. Poirier in this case, a person may be a status insured 

under one policy, and a location insured under another.

This context informs the interpretation of the third sentence of the Progressive “Other 

Insurance” provision. As Progressive properly asserts, the “with respect to” language cannot apply to 

the underinsured motor vehicle; UIM coverage insures individuals, not vehicles. Rather, the “with 

respect to” language plainly refers to the circumstance in which the insured is a status insured under 

the Progressive policy and a location insured under the policy issued “with respect to” a vehicle not 

covered by the Progressive policy. In those circumstances, the Progressive policy is excess. 

Conversely, by necessary implication, as in Powers, when the insured is occupying a covered vehicle, 

the Progressive policy is primary. See Powers, 169 Vt. at 237.

With respect to its own policy, VMIC argues that by its express terms, the “Other Insurance” 

provision of its policy does not apply, making its coverage, by default, primary. VMIC’s Mot. for 

Summ. J., 8–9. This argument, however, relies on an unsupportable reading of the descriptor, 

“similar,” in the VMIC policy. The reader will recall that the VMIC policy addresses situations in 

which there is other “similar” insurance. VMIC reads this term so narrowly as to be virtually 

1 Under the Progressive policy, an “insured person” is (1) the named insured, a resident spouse, relative, or “rated resident,” 

(2) a permissive operator of a “covered auto,” or (3) a person occupying but not operating a “covered auto.” Similarly, 

under the VMIC policy, an “insured” is (1) the named insured or a family member or (2) any other person “occupying” 

“your covered auto.”
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meaningless; unless another policy’s language is identical to VMIC’s, it cannot be “similar.” Bluntly, 

this is a dog that will not hunt. Instead, plainly, what VMIC’s policy means when it speaks of “other 

applicable insurance similar to the insurance provided under [the UIM] Part of [this] Policy” is other 

UIM coverage.

Were this not so, then the Supreme Court’s decision in Powers—the only authority on which 

VMIC relies—would have reached a different result to at least one of the insurers involved in that case. 

That insurer, Allstate, contained a UIM provision strikingly similar to VMIC’s. The first sentence—

which the reader will recall VMIC argues makes clear that its “Other Insurance” clause does not 

apply—states, “If there is other applicable similar insurance we will pay only our share of the loss.” In 

contrast, the first sentence of VMIC’s other insurance moves the word, “similar,” to follow insurance 

and adds “to the insurance provided under this Part of the Policy.” This, clearly, is a distinction without 

a difference; VMIC’s policy merely says in more words what Allstate’s said in fewer. Yet the Powers 

Court concluded that in that case, Allstate’s “Other Insurance” clause was enforceable, and further that 

it made the Allstate policy excess, because the vehicle in which the insured was a passenger was not 

owned by the Allstate policyholder. Powers, 169 Vt. at 239.

So too here. Following the teachings of Powers, Progressive’s policy, issued “with respect to” 

the vehicle in which Mr. Poirier was a passenger and so providing “location” coverage, owed the 

primary UIM obligation. Conversely, the VMIC policy, issued to Mr. Poirier and so providing “status” 

coverage, was excess. Powers teaches that this means that Progressive had the first obligation to pay, 

and correspondingly, the first right to any setoff. VMIC benefits by having to pay only after the 

Progressive limits have been exhausted. Unfortunately for VMIC, in this case, those limits are 

completely exhausted by application of the setoff, leaving VMIC responsible for the full amount of 

UIM coverage owed Mr. Poirier.

2

ORDER

The court denies VMIC’s Motion for Summary Judgment and grants Progressive’s CrossMotion for Summary Judgment. Progressive is entitled to the full benefit of the setoff for amounts paid 

to Mr. Poirier by the two liability insurers, and so liable for none of the $75,000 paid to Mr. Poirier in 

2 The court cannot avoid commenting on the irony inherent in that parties’ arguments in this case. The court can conceive 

of no other context in which insurers fall all over themselves to assume the primary coverage obligation for a loss. Indeed, 

even in many UIM contexts it will remain very much in the insurer’s financial interest to be the excess carrier. If, for 

example, Mr. Poirier’s damages had totalled $100,000 and his recovery from the tortfeasor only $25,000, would VMIC

have been so anxious to be the primary carrier, paying $75,000 while Progressive paid nothing? Or would VMIC have 

decided that Progressive’s policy was in fact “similar,” differing only in that it was issued “with respect to” Mr. Poirier’s 

vehicle, and so primary—meaning that VMIC’s exposure would be only $50,000? This speculation does not inform in any 

way the court’s decision in this case. Still, one wonders: doth VMIC protest too much, methinks?
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satisfaction of the parties collective UIM obligation. VMIC, consequently, is liable for the full amount 

of the UIM obligation.

___________________________

Samuel Hoar, Jr.

Superior Court Judge