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Cogswell Farm Condo. Ass'n v. Tower Group, Inc.

Supreme Court of New Hampshire

January 13, 2015

Cogswell Farm Condominium Association
v.
Tower Group, Inc. & a

Argued June 18, 2014

Editorial Note:

Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.

Rockingham.

McDowell & Osburn, P.A., of Manchester ( Gordon A. Rehnborg, Jr. on the brief and orally), and Scott & Scott, P.A., of Londonderry ( Michael J. Scott on the brief), for the petitioner.

Downs Rachlin Martin PLLC, of Lebanon ( Katherine M. Strickland on the brief), for respondent Tower Group, Inc.

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

BASSETT, J. DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

OPINION

Page 823

Bassett, J.

In this declaratory judgment proceeding, the petitioner, Cogswell Farm Condominium Association (Cogswell), appeals an order of the Superior Court ( McHugh, J.) finding that two exclusions in the insurance policies issued by the respondents, Tower Group, Inc. (Tower) and Acadia Insurance Company (Acadia), preclude coverage in the petitioner's underlying lawsuit against Lemery Building Company, Inc. (Lemery). We reverse and remand.

The trial court found, or the record supports, the following facts. Between June 2000 and November 2003, Lemery was responsible for the construction and development of 24 residential condominium units in Atkinson. The owners of the condominium units are now members of the petitioner association. Acadia issued Lemery a commercial general liability insurance policy, providing coverage from March 2000 to August 2002. Tower issued Lemery an identical policy, with coverage from August 2002 until November 2003.

Page 824

In 2001, Lemery began selling the units to third parties.

In 2009, Cogswell sued Lemery and others, alleging negligence, breach of contract, and negligent supervision in the construction of the units. Cogswell asserted that the " weather barrier" components of the units -- including the water/ice shield, flashing, siding, and vapor barrier -- were ...


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