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Clauson & Atwood v. Professionals Direct Insurance Co.

United States District Court, First Circuit

May 13, 2013

Clauson & Atwood
v.
Professionals Direct Insurance Co.
v.
K. William Clauson et al. Opinion No. 2013 DNH 075

K. William Clauson, Esq.

Mark L. Mallory, Esq.

MEMORANDUM ORDER

Joseph N. Laplante United States District Judge.

This is an insurance coverage dispute. Plaintiff Clauson & Atwood, a New Hampshire law firm, seeks a declaratory judgment that defendant Professionals Direct Insurance Company (“PDIC”), its professional liability insurer, must provide coverage against a malpractice claim brought by a former client. PDIC has counterclaimed, seeking a declaratory judgment that it need not provide coverage, and moved for summary judgment on both its counterclaim and Clauson & Atwood’s declaratory judgment claim. PDIC notes that the insurance policy in question is a “claims-made and reported” policy that provides coverage only for claims that are both “made” and “reported” during the policy period, and argues that the malpractice claim against Clauson & Atwood falls outside the scope of the policy because it was “made, ” as defined by the policy, well before the policy period.

This court has jurisdiction of this action under 28 U.S.C. § 1332 (diversity). The parties declined oral argument, which this court customarily holds on dispositive motions. After due consideration of the parties’ submissions, the court grants summary judgment in PDIC’s favor. Although Clauson & Atwood has made a valiant effort to argue that the claim against it was first “made” within the policy period, its position is contrary to the unambiguous policy language defining what a “claim” is and when it is “made.”

I. Applicable legal standard

Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” if it could reasonably be resolved in either party’s favor at trial. See Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010) (citing Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009)). A fact is “material” if it could sway the outcome under applicable law. Id. (citing Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)). In analyzing a summary judgment motion, the court “views all facts and draws all reasonable inferences in the light most favorable to the non-moving party.” Id.

II. Background[1]

Clauson & Atwood (“C&A”[2]) is a New Hampshire law firm in which K. William Clauson is a partner. In 2007, James Yager retained C&A and Clauson to represent him in a lawsuit arising from the unauthorized cutting of timber on his property. C&A filed an action in New Hampshire Superior Court on Yager’s behalf in December of that year, alleging that Mighty Oaks Realty, LLC was liable to Yager for common law trespass and statutory timber trespass, see N.H. Rev. Stat. Ann. § 227-J:8, for this alleged cutting. When Mighty Oaks presented undisputed evidence that the cutting had in fact been performed by a third party, D.H. Hardwick & Sons, Inc., the Superior Court granted summary judgment in Mighty Oaks’ favor in an August 2008 order. C&A appealed the Superior Court’s decision to the New Hampshire Supreme Court, which affirmed in an unpublished opinion.

In June 2008, prior to the Superior Court’s grant of summary judgment in favor of Mighty Oaks, C&A filed a second Superior Court timber trespass action on Yager’s behalf, this time against D.H. Hardwick & Sons. That action also progressed to the summary judgment stage, and in June 2010, the Superior Court granted summary judgment to the defendant, holding that Yager’s lawsuit was barred by the state’s three-year statute of limitations for personal actions. See N.H. Rev. Stat. Ann. § 508:4, I. After the Superior Court denied Yager’s motion to reconsider, C&A appealed both the grant of summary judgment and the denial of reconsideration to the New Hampshire Supreme Court on his behalf.

In the meantime, Yager retained new counsel at Orr & Reno, P.A., who contacted Clauson in January 2011 to notify him that Yager had a possible legal malpractice claim against C&A if the pending New Hampshire Supreme Court appeal proved unsuccessful.

The following month, Orr & Reno sent Clauson a confirmatory letter, which stated, in pertinent part:

Orr & Reno has been retained by James Yager to serve as counsel in regard to a possible malpractice claim against [C&A] arising out of [C&A’s] representation of Mr. Yager in regard to timber trespass and common law trespass claims against Mighty Oaks Realty, LLC, and D.H. Hardwick & Sons, Inc. Please provide a copy of this letter and the enclosure to your carrier. . . .
While we have advised Mr. Yager that any claim against [C&A] would probably not be deemed to have arisen until 2009 or 2010, we are also aware that a court could possibly rule that the ...

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