As Amended June 2, 2015.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Landya B. McCafferty, U.S. District Judge.
Scott H. Harris, with whom Nicholas C. Casolaro, Andrew R. Hamilton, and McLane, Graf, Raulerson & Middleton, P.A. were on brief, for appellant.
Mark D. Sheridan, with whom Jason F. King, Sean P. Neafsey, and Squire Patton Boggs (U.S.) LLP were on brief, for appellee.
Before Howard, Selya, and Barron, Circuit Judges.
BARRON, Circuit Judge.
This appeal arises out of an action for a declaratory judgment. The plaintiff, now the appellant, is a private middle school in Canaan, New Hampshire. The school seeks to prove that, nearly fifty years ago, the insurance company that is the defendant, and now the appellee, issued the school an insurance policy that covers a claim that the school recently received concerning events allegedly occurring during the 1967-1968 academic year.
The twist is that while the school can document that it had a policy with the insurance company at some point, it cannot find a copy of the policy for the year in question. And the insurance company has told the school that it cannot confirm the existence of the policy. Thus, the company contends that it is not obliged to cover the claim and, more significantly for present purposes, that the school's complaint should be dismissed because it fails to make a plausible case that such a policy ever existed.
The District Court sided with the insurance company and dismissed the suit. But although the question is close, we reverse and remand for further proceedings.
In 2013, the Cardigan Mountain School received a demand letter asserting a claim (about which we have been given no details) based on events that allegedly occurred during the 1967-1968 school year. In response, the school asked the New Hampshire Insurance Company to defend against the claim as the carrier of the
school's comprehensive general liability insurance policy at that time.
The New Hampshire Insurance Company rejected the request. The company explained that it had not been able to locate any policy covering the school for the relevant time period, and thus that it was not the school's carrier at that time and therefore had no duty to defend against this claim now.
Not having found a copy of the policy in its own records, the school filed this suit in New Hampshire state court under the New Hampshire declaratory judgment statute. See N.H. Rev. Stat. Ann. § 491:22. The school sought a judgment " adjudicating and decreeing the existence of, and Cardigan's rights under, any policy issued by" New Hampshire Insurance Company.
New Hampshire Insurance Company -- which, notwithstanding its name, is a Pennsylvania corporation with its headquarters in New York -- removed the suit to federal court on diversity-of-citizenship grounds. See 28 U.S.C. § 1332(a). New Hampshire Insurance Company then moved to ...