Injured by an Uninsured Driver in NH? Your Auto Policy May Pay

New Hampshire does not require a driver to carry liability insurance. When the driver who hit you has no insurance, or carries the state minimum against injuries worth many times that, the question stops being what the other driver's policy will pay and becomes what your policy provides to make you whole.

That coverage has a name: Uninsured Motorist Coverage,

Uninsured motorist coverage applies when the driver at fault has no insurance at all. When that driver has insurance and it runs out before paying the injury in full, it's called underinsured motorist coverage. Both sit in your auto policy, and in New Hampshire both are almost certainly already there.

What follows is the law that sets how much of that coverage you have, when it applies, what can take it away, and when the deadline for claiming it begins.

The coverage automatically attached itself to your policy at the limits you chose

New Hampshire requires uninsured motorist coverage in essentially every private auto policy issued here. The statute opens with one carve-out, and it is narrow: RSA 264:15, I-a exempts commercial policies, and only as to vehicles the policyholder does not own.

If the policy on your car is an ordinary personal auto policy, the requirement reaches it. The requirement is RSA 264:15, I, which reads in relevant part:

"Except as provided in paragraph I-a, 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 and 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 in amounts and limits to the liability coverage elected."

The New Hampshire Supreme Court has described that requirement as meaning "that all automobile liability policies include uninsured motorist coverage," Rivera v. Liberty Mutual Fire Insurance Co., 163 N.H. 603, 608 (2012), quoting Beliveau v. Norfolk & Dedham Mutual Fire Insurance Co., 120 N.H. 73, 76 (1980).

The floor under that sentence is RSA 259:61, I: at least $25,000 for injury to or death of one person, at least $50,000 for any one accident injuring more than one person, and at least $25,000 for property damage.

A driver who buys liability limits of $250,000 because a lender or an insurance agent suggested it has, by operation of the second sentence of that statute, $250,000 in uninsured motorist coverage as well. No separate purchase was made. No box was checked. The coverage rose with the liability limits automatically, and it did so for the benefit of the person who bought the policy rather than for the benefit of anyone that person might injure. That is the difference between the two halves of an auto policy.

Liability coverage pays other people when you are at fault. Uninsured motorist coverage pays you when someone else is at fault and cannot.

"Underinsured" has two definitions

Underinsured motorist coverage is the same coverage doing a different job: the at-fault driver has insurance, but not enough. RSA 259:117 defines when a vehicle counts as underinsured, and it gives two separate routes there. A vehicle qualifies if, at the time of the accident, the applicable liability limits are less than the injured person's uninsured motorist limits, or if the available liability insurance "has been reduced by payments to others injured in the subject accident to an amount less than the limits of the uninsured motorist coverage applicable to the insured."

A driver carrying $100,000 per person and $300,000 per accident is adequately insured for one moderate injury and badly underinsured for a five-car crash in which four other people are hurt. The arithmetic is what does it. That policy will never pay more than $300,000 for the entire accident, however many people were in it and however badly they were hurt. If four other claimants are paid $250,000 between them, $50,000 of the at-fault driver's liability insurance is left for everyone else. A claim worth $400,000 is then looking at $50,000 from the driver who caused it.

The limits did not change. What changed is how many claimants are drawing on them, and a claim that looked fully covered on the day of the accident can become an underinsured motorist claim months later as the other settlements are paid.

For someone who is injured, the practical consequence is that the insurance available to you is not fixed by what the other driver's declarations page says. It is reduced by what that same policy pays other people out of the same crash, and those payments are made while your own claim is still open. The coverage that fills the resulting gap is in your policy rather than in theirs, which means the question of who else was hurt in the same accident is a question about your own insurance. RSA 259:117 frames both routes as measured "at the time of the subject accident," and no New Hampshire decision found in this research applies that language to payments that by their nature come later.

Can You Reject Uninsured Motorist Coverage in New Hampshire?

On an ordinary auto policy, no. Not today, and not at any point in this statute's history.

In many states a driver can sign uninsured motorist coverage away on the auto policy itself, and the forms that do it are a routine part of buying insurance. New Hampshire has never been one of those states. RSA 264:15, I does contain a right to reject the coverage in writing, and that right exists. It is simply not attached to the policy on your car. By its own terms it belongs to umbrella and excess policies, meaning the separate policy some drivers carry above their auto and homeowners limits. The sentences of the same paragraph that put the coverage in the underlying auto policy carry no rejection right at all.

The clearest way to see that is to look at when the rejection right appeared, because it has a birthday.

Nobody has to have hit you, and that runs to your full limits

Uninsured motorist coverage in New Hampshire even reaches the driver who forced you off the road and kept going. Soule v. Stuyvesant Insurance Co., 116 N.H. 595, 597 (1976), held that a "policy requirement of physical contact is an impermissible restriction of coverage," reasoning that the legislature extended coverage to accidents caused by hit-and-run motorists without writing a contact requirement into the statute.

Merchants Mutual Insurance Group v. Orthopedic Professional Ass'n, 124 N.H. 648 (1984), answered the question Soule left open. The master in that case had read Soule as voiding the contact requirement only up to the statutory minimum, so that a doctor forced off Route 11-A in Alton by a vehicle that fled recovered $20,000 rather than the $100,000 he had bought. The Supreme Court reversed: the physical contact requirement "is void as an impermissible restriction on coverage. The defendant is entitled to the full coverage, up to the policy limits," 124 N.H. at 653-54.

New Hampshire has no rule requiring an independent witness to a phantom vehicle. Proof is still proof, and a claim of this kind is decided on the evidence available.

A car your family owns can still be an "uninsured motor vehicle"

Most auto policies contain a sentence that quietly removes a whole category of claim: they exclude from the definition of "uninsured motor vehicle" any vehicle owned by the insured or by a family member. Read literally, that sentence means the coverage never responds when the car involved is one your household already insures, however the crash happened and whoever was at fault. New Hampshire does not read it literally in every case.

Auto policies commonly exclude from "uninsured motor vehicle" any vehicle owned by the insured or a family member. Rivera held that exclusion invalid on the facts before it. Rivera was driving her parents' Toyota, insured under their policy, when a passenger grabbed the wheel; the passenger's insurer denied coverage and the policy's entitlement exclusion cut off liability coverage for her as well. The Court construed RSA 264:15, I "to prohibit the exclusion at issue as applied to Rivera under the facts of this case," 163 N.H. at 612.

The situation the exclusion produced is worth setting out, because it is the reason the Court would not apply it. The person who caused the crash was the passenger, and his insurer denied coverage. The parents' policy, which insured the Toyota, cut off liability coverage for him under a separate exclusion. So the driver responsible for Rivera's injuries had no liability insurance from any source. That is the situation uninsured motorist coverage exists for, and Rivera was a person insured under the policy. The owned-vehicle exclusion would have answered that by saying the Toyota was not an "uninsured motor vehicle" because her family owned it, which would have left her with no recovery from anyone. The Court declined to read the statute that way: "As to Rivera, the driver and the vehicle were effectively uninsured and, therefore, the uninsured motorist coverage was applicable," 163 N.H. at 612. Her parents' uninsured motorist coverage responded.

The phrase "as applied" is doing real work, and the Court used it three times. Rivera was an operator covered under the policy's liability coverage. The decision did not void owned-vehicle or household exclusions generally, and Beliveau v. Norfolk & Dedham Mutual Fire Insurance Co., 120 N.H. 73 (1980), which upheld such an exclusion against the owner-occupant of an uninsured vehicle, remains good law and was distinguished rather than overruled.

The related principle is that an insurer cannot quietly shrink what it owes. Medical payments benefits under the same policy may not be set off against underinsured motorist coverage, Murley v. Hanover Insurance Co., 155 N.H. 540, 543 (2007). One qualification that belongs with all of this: under RSA 259:61, III, coverage under RSA 264:15 does not apply to an insured operator whose licence was suspended or revoked "if the applicable motor vehicle liability policy so provides." The condition at the end of that sentence is the whole of it. The exclusion operates only where the policy contains it.

The requirement for UM coverage reaches New Hampshire vehicles only

The mandate is not universal, and the limit on it is in the same sentence. RSA 264:15, I reaches policies "issued under the provisions of RSA 264:14, with respect to a vehicle registered or principally garaged in this state," and the sentence then goes on to say what those policies must provide. RSA 264:14, I draws the same boundary from the other direction, governing the form of any motor vehicle liability policy "issued with respect to any motor vehicle registered or principally garaged in this state," before setting out the filing requirement that follows.

Two conditions therefore have to hold before the coverage is required. The policy has to be a motor vehicle liability policy as RSA 259:61 defines one, and the vehicle has to be registered or principally garaged in New Hampshire. A policy written on a vehicle registered and kept in another state is outside the requirement, whatever the driver's own address happens to be.

Practicing in New Hampshire since 2003, I have seen one policy issued here with no uninsured motorist provision in it. Once. The statute is written as a prohibition, so a policy without the coverage is unusual enough to be worth reading the declarations page for rather than assuming.

The at-fault driver's limits come first

Uninsured and underinsured motorist coverage sits above the other driver's insurance rather than alongside it. Amica Mutual Insurance Co. v. Morrison, 130 N.H. 250, 254, 256 (1987), describes the requirement that the tortfeasor's liability limits be exhausted before the underinsured motorist coverage responds.

The requirement comes from the policy rather than from the statute. Amica describes the terms and conditions of the coverage as unambiguously requiring "the insureds to exhaust an underinsured tortfeasor's liability coverage before being entitled to payment under the underinsured motorist coverage," and explains that the requirement "simply makes certain that the insureds need the underinsurance coverage," 130 N.H. at 256.

Amica did not decide what counts as exhaustion where a claimant settles for less than the full liability limits, because no settlement or judgment existed in that case. That question seems to remain open in New Hampshire, which matters, because the settlement offer in front of most claimants is for something less than policy limits.

The open question is what a below-limits settlement does to the second layer of coverage. An adjuster offering $70,000 on a $100,000 policy is offering to close the claim against that driver for less than the limits, and whether limits closed out that way have been exhausted for the purpose of the underinsured motorist coverage has not been answered in New Hampshire. That is one of three separate things riding on the same signature: the exhaustion question, the consent the policy requires from your own carrier, and the release warning the legislature put on the document itself.

The release carries a warning the legislature wrote

RSA 264:15, V requires that every document tendered to settle a bodily injury claim that may be subject to this coverage prominently contain language, to be read and signed by the releasing party or parties:

WARNING "IF YOU SIGN THIS RELEASE YOU MAY FORFEIT YOUR RIGHT TO UNINSURED MOTORIST INSURANCE BENEFITS FROM YOUR OWN AUTOMOBILE INSURANCE POLICY. CONSULT WITH YOUR INSURANCE AGENT, YOUR AUTOMOBILE INSURANCE COMPANY, OR YOUR ATTORNEY BEFORE SIGNING." I certify that I have read the above warning and fully understand it. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

The statute requires more than that the words appear. It requires a certification line and a signature, which is what "read and signed by the releasing party or parties" refers to. A release that settles a bodily injury claim in New Hampshire should therefore carry two signatures from the claimant: one releasing the claim, and one certifying that the warning above it was read and understood.

The legislature put that warning on the document because of what signing it can cost. The release that settles the claim against the at-fault driver is often tendered early, for that driver's policy limits, at a point when the full extent of an injury is not yet known. Signing it can extinguish the larger claim against the claimant's own carrier. The same document is the subject of a separate question about whether the first offer is worth accepting, which is taken up here.

The statute states the requirement. It does not say what follows if an insurer omits the warning, and no New Hampshire decision found in this research answers that.

Settling without the carrier's consent, and why silence is not permission

Auto policies generally condition uninsured and underinsured motorist coverage on the insurer's consent to any settlement with the at-fault driver. The requirement is old in New Hampshire. In Kirouac v. Healey, 104 N.H. 157 (1962), the first decision in this state to discuss uninsured motorist recovery, an insured was described as entitled to pursue the underlying tort claim without interference from the insurer but required to obtain the insurer's consent to any settlement in order to preserve the coverage, a passage recounted in Metropolitan Property & Liability Insurance Co. v. Walker, 136 N.H. 594, 597 (1993).

Bartlett v. Commerce Insurance Co., 167 N.H. 521, 528-29 (2015), addresses what happens when the insured tells the carrier and hears nothing back. Silence is not waiver of the consent requirement. The insured carries the burden of proving waiver, and the insurer does not have to show it was prejudiced by the settlement in order to rely on the condition. Notice given and unanswered is not consent obtained.

The deadline runs from the denial, not from the crash

New Hampshire's general personal injury limitations period is three years under RSA 508:4, and for a claim against the driver who caused the crash it runs from the injury. A claim against your own insurer for uninsured or underinsured motorist benefits is a claim on the insurance contract, and it accrues differently.

Walker holds it directly, 136 N.H. at 598, and New Hampshire Supreme Court opinions are published by the New Hampshire Judicial Branch:

"We hold, therefore, that the statute of limitations commenced to run on the date when the insurer rejected the insured's claim for underinsured motorist benefits."

The facts show what that means in practice. Walker was injured on December 6, 1982. Her counsel notified her own underinsured motorist carrier for the first time on May 3, 1989, more than six years after the accident. The carrier denied the claim on May 24, 1989. The Court held the claim timely, because the limitations period had not begun until the denial, 136 N.H. at 596, 598.

Two cautions belong with that holding. The limitations period applicable in Walker was six years; RSA 508:4 was amended to three years for causes of action arising on or after July 1, 1986, and Walker's cause of action arose at the 1989 denial, so the shorter period applied and her claim was still well within it, 136 N.H. at 596. And the contract framing is not always favorable. In Bartlett the Court applied New Jersey law under a choice-of-law analysis, and that state's rule ran six years from the accident; the claim was time-barred, 167 N.H. at 527.

A third caution is practical rather than doctrinal, and for someone reading this soon after a crash it is the one that matters most. Walker decides when the limitations clock starts. It does not decide what a policy's own notice and cooperation conditions require, and it could not have. The carrier in that case had raised a second ground, that the insured failed to furnish it with a copy of the underlying writ, and the trial court never reached it, 136 N.H. at 596. The Court reversed on the limitations question and sent the case back with that second ground still open.

That distinction is an easy one to lose, and losing it is expensive. Uninsured and underinsured motorist coverage lives in a contract, and these contracts generally require the insured to cooperate with the insurer and to give notice of a loss. A claimant who says nothing to their own carrier for years, and whose silence leaves that carrier at a real disadvantage in investigating the crash, may face an argument about those conditions whether or not the limitations period has run. The clock and the policy conditions are two separate questions, and Walker answers only the first.

In my experience the practical answer is straightforward. Notice of the accident goes to your own carrier early, whether or not a claim against that carrier is ever made, because there is no cost to having the notice on file and there can be a real cost to its absence. Some carriers will not open an uninsured motorist claim at all until there is a firm offer from the at-fault driver's insurer, so the sequence often runs in the other direction: the claimant asks their own carrier for permission to settle with the at-fault driver, and the carrier opens its file at that point. That is a description of how some claims departments work, not a rule of law, and it is not a reason to delay notice.

There is no separate limitations statute for uninsured motorist claims in New Hampshire. RSA 508:4 governs, and what differs is the date the period starts.

When the insurer says no

A coverage dispute with your own insurer is resolved by a petition for declaratory judgment under RSA 491:22, and three features of that statute are worth knowing before the argument starts.

RSA 491:22-a places the burden of proof on the insurer: "In any petition under RSA 491:22 to determine the coverage of a liability insurance policy, the burden of proof concerning the coverage shall be upon the insurer whether he institutes the petition or whether the claimant asserting the coverage institutes the petition." The insurer proves the coverage does not apply rather than the policyholder proving it does. That statute says "a liability insurance policy," and whether it reaches a first-party uninsured motorist claim has not been decided.

RSA 491:22-b shifts fees: "In any action to determine coverage of an insurance policy pursuant to RSA 491:22, if the insured prevails in such action, he shall receive court costs and reasonable attorneys' fees from the insurer." The New Hampshire Supreme Court applied it in an uninsured motorist coverage case in Merchants Mutual, 124 N.H. at 660. RSA 491:22, I confines the fee shift to actions brought to determine insurance coverage.

RSA 491:22, III sets a six-month limit, measured "after the filing of the writ, complaint, or other pleading initiating the action which gives rise to the question," subject to exceptions where the facts were not reasonably discoverable by the insurer and where the superior court finds accident, mistake or misfortune. A first-party claim against your own carrier may have no underlying pleading of that kind at all, and how the six-month period operates in that posture is not settled by the text of the statute.

Taken together, those provisions describe a system in which the party with the file, the adjusters and the coverage lawyers carries the burden and pays the costs of being wrong. That is unusual, and it is a reason a denial is worth examining rather than accepting.

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Frequently asked questions

Do I have uninsured motorist coverage if I never asked for it?

Almost certainly yes. RSA 264:15, I requires uninsured motorist coverage in motor vehicle liability policies issued on vehicles registered or principally garaged in New Hampshire, and the coverage is automatically equal to whatever liability limits you elected above the state minimum. The statute's one exception, RSA 264:15, I-a, is for commercial policies as to vehicles the policyholder does not own, so it does not reach an ordinary personal auto policy.

Can I reject uninsured motorist coverage on my New Hampshire auto policy?

The written rejection right in RSA 264:15, I applies to umbrella and excess policies, not to the underlying auto policy. Both New Hampshire decisions usually cited for the rejection rule, O'Donnell and Bouffard, were umbrella cases.

How long do I have to bring an uninsured motorist claim in New Hampshire?

The three-year period in RSA 508:4 applies, but it starts when the insurer denies the claim rather than on the date of the crash. Metropolitan Property & Liability Insurance Co. v. Walker, 136 N.H. 594, 598 (1993). The deadline for suing the at-fault driver is different and runs from the injury.

Does the other driver have to have hit me?

No. Soule v. Stuyvesant Insurance Co., 116 N.H. 595, 597 (1976), held a physical contact requirement to be an impermissible restriction on coverage, and Merchants Mutual held the coverage runs to the full policy limits rather than to the statutory minimum.

What happens if I sign the release the adjuster sent me?

RSA 264:15, V requires a warning on that document stating that signing it may forfeit your right to uninsured motorist benefits from your own policy. Auto policies also generally require the insurer's consent to a settlement, and under Bartlett v. Commerce Insurance Co., 167 N.H. 521, 528-29 (2015), telling the carrier and receiving no response does not amount to consent.

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About the Author

Keith F. Diaz, Esq. is the founder of Apis Law, PLLC, a New Hampshire personal injury and employment law firm. Attorney Diaz has been practicing in New Hampshire since 2003 and is admitted to practice in the State of New Hampshire (Bar No. 15831), the U.S. District Court for the District of New Hampshire, and the First Circuit Court of Appeals. He founded Apis Law in 2022 to provide dedicated, client-focused representation to individuals and families throughout New Hampshire. The firm handles personal injury matters throughout southern New Hampshire, including Manchester and Goffstown.

This article is general information about New Hampshire law and is not legal advice about any particular claim. Insurance policy language varies, and the outcome of any matter depends on its own facts.