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The Barking Dog, Ltd. v. Citizens Insurance Company of America

August 17, 2012

THE BARKING DOG, LTD.
v.
CITIZENS INSURANCE COMPANY OF AMERICA



The opinion of the court was delivered by: Conboy, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: April 11, 2012

In this declaratory judgment proceeding, the defendant,

Citizens Insurance Company of America, appeals an order of the Superior

Court (McHugh, J.) ruling in favor of the plaintiff, The Barking Dog, Ltd., which operates a dog kennel and grooming business at several locations in New Hampshire. The court ruled that an insurance policy (the policy) issued by the defendant provides coverage for damage to the plaintiff's septic system and ordered the defendant to pay the plaintiff $20,000, the agreed upon damage amount. The court also ruled that the defendant was not prejudiced by the plaintiff's failure to disclose its expert's report in a timely manner or its failure

to disclose its expert's curriculum vitae and, accordingly, permitted the plaintiff's expert to testify at trial. The defendant argues that both rulings were error. We affirm.

The following facts are derived from the record. On February 25, 2010, after a heavy rainfall, the septic system at the plaintiff's Derry facility failed. The plaintiff made a claim under the policy, but the defendant denied it, relying on certain policy exclusions. On June 23, 2010, the plaintiff petitioned the superior court for a declaration that it is entitled to coverage.

It is undisputed that the septic system failed due to the failure of the pump portion of the system. Both parties retained experts to determine the precise cause of the pump failure. The trial court noted that "their general conclusions were quite similar" and "[t]his is not a case where the two experts were 180 degrees apart in their assessment of this loss." Ultimately, the court adopted the plaintiff's expert's theory that "the significant and highly unusual amount of rainfall on the day in question coupled with the existing melting of snow, created such a serious groundwater condition so as to cause the cement risers surrounding the pump chamber to move, thereby allowing water and other materials to enter the chamber itself and cause its failure."

The plaintiff argued that it is entitled to coverage under the policy's

"Broad Form Water Damage" (BFWD) provision, which was added to the policy through a "Special Broadening Endorsement" that "amend[ed] coverage provided under the [policy] through new coverages and broader coverage grants." The BFWD provision first deletes two of the policy's so-called "water exclusions," which exclude coverage for damage caused by:

Water that backs up or overflows from a sewer, drain or sump; or

Water under the ground surface pressing on, or flowing or seeping through:

(a) Foundations, walls, floors or ...


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