November 12, 2015
[Copyrighted Material Omitted]
Hillsborough-northern judicial district.
Devine, Millimet & Branch, Professional Association, of
Manchester ( Donald L. Smith, Thomas Quarles, Jr., and Owen
R. Graham on the brief, and Mr. Smith orally), for the
petitioner, Thomas Todd.
Primmer Piper Eggleston & Cramer PC, of Manchester ( Gary M.
Burt and Matthew J. Delude on the brief, and Mr. Burt
orally), for respondent Vermont Mutual Insurance Company.
Brisbois Bisgaard & Smith LLP, of Chicago, Illinois ( Perry
M. Shorris on the brief and orally), and Boston,
Massachusetts ( Kip J. Adams on the brief), for respondent
Hanover Insurance Company.
J. DALIANIS, C.J., and LYNN and BASSETT, JJ., concurred.
In this declaratory judgment proceeding, the
petitioner, Thomas Todd, appeals an order of the Superior
Court ( Nicolosi, J.) denying his cross-motions for
summary judgment and granting summary judgment in favor of
the respondents, Vermont Mutual Insurance Company (Vermont
Mutual) and Hanover Insurance Company (Hanover). The trial
court ruled that neither respondent had a duty to provide a
defense to Todd in a civil stalking action. We affirm.
summary judgment record reflects the following pertinent
facts. Todd, a Massachusetts resident, is a member of the New
Hampshire Chapter of the Appalachian Mountain Club (AMC). He
has been a member of the AMC's paddling committee since
1989 and was the committee's co-chair in 2009 and 2010.
Todd has also served as the AMC's webmaster. The
webmaster is " 'responsible for maintaining and
updating the Chapter website.' "
Leonard is also a member of the AMC's paddling committee.
In January 2014, Leonard filed a stalking petition against
Todd. See RSA 633:3-a (Supp. 2014). Leonard alleged
that Todd " hacked" her computer and broke her
vehicle's window after she had voiced her opinion at an
AMC meeting that Todd should not be allowed to participate in
a paddling committee event " due to his history of
aggressive behavior toward females." Leonard further
alleged that she was afraid for her well-being.
relevant times, Todd was insured under a homeowner's
insurance policy and an umbrella liability policy issued to
him by Vermont Mutual. After the stalking petition was filed,
Todd notified Vermont Mutual of the action and requested that
it provide a defense under one or both of the policies.
Vermont Mutual informed Todd that it did not believe that
either policy covered the allegations in the stalking
petition and declined to provide him with a defense.
was insured by Hanover under an employment practices
liability (EPL) policy and a nonprofit directors, officers
and organizations liability (D & O) policy. Todd informed the
AMC of the stalking petition and requested that it notify
Hanover to provide him with a defense. Hanover declined to
provide Todd with a defense.
March 2014, the Circuit Court ( Bamberger, J.) held
a final hearing on the stalking petition. The court found
that Leonard " failed to sustain [her] burden of
proof," and, therefore, the court did not issue a
restraining order against Todd. Todd incurred approximately
$18,000 in attorney's fees and costs in defending against
the stalking petition.
2014, Todd filed the present declaratory judgment proceeding,
seeking a declaration that Vermont Mutual and Hanover owed a
duty to defend him against the stalking petition and to
reimburse him for the attorney's fees and costs incurred
in defending against the stalking petition. In addition, he
sought attorney's fees and costs for bringing the
declaratory judgment proceeding. See RSA 491:22-b
parties filed cross-motions for summary judgment. In its
motion, Vermont Mutual argued that Massachusetts law governs
interpretation of the policies because the policies are
Massachusetts policies that were " issued to [Todd,] a
Massachusetts resident, to provide insurance coverage for his
Massachusetts home." The trial court determined that
Vermont Mutual had no obligation to defend Todd against the
stalking petition under either Massachusetts or New Hampshire
law. The court further found that Hanover had no duty to
defend Todd. Accordingly, the court granted the
respondents' motions and denied Todd's motions. This
Standards of Review
In reviewing the trial court's rulings on cross-motions
for summary judgment, we consider the evidence in the light
most favorable to each party in its capacity as the nonmoving
party and, if no genuine issue of material fact exists, we
determine whether the moving party is
entitled to judgment as a matter of law." Bovaird v.
N.H. Dep't of Admin. Servs., 166 N.H. 755, 758, 103
A.3d 1207 (2014) (quotation omitted). If our review of that
evidence discloses no genuine issue of material fact, and if
the moving party is entitled to judgment as a matter of law,
we will affirm the grant of summary judgment. N. Sec.
Ins. Co. v. Connors, 161 N.H. 645, 649, 20 A.3d 912
(2011). We review the trial court's application of the
law to the facts de novo. Id.
of this dispute requires us to interpret the language in the
relevant insurance policies. Interpretation of an insurance
policy is a question of law. Id. Our analysis in
interpreting an insurance policy begins with an examination
of the insurance policy language. Great Am. Dining v.
Philadelphia Indem. Ins. Co., 164 N.H. 612, 616, 62 A.3d
843 (2013). We look to the plain and ordinary meaning of the
words in context, " and we construe the terms of the
policy as would a reasonable person in the position of the
insured based on more than a casual reading of the policy as
a whole." Id. (quotation omitted). This is an
objective standard. Id. " If more than one
reasonable interpretation is possible, and an interpretation
provides coverage, the policy contains an ambiguity and will
be construed against the insurer." Id.
(quotation omitted). Pursuant to RSA 491:22-a (2010), the
burden of proving lack of insurance coverage is on the
The Duty to Defend
insurer's obligation to defend its insured is determined
by whether " the cause of action against the insured
alleges sufficient facts in the pleadings to bring it within
the express terms of the policy." N. Sec. Ins.
Co., 161 N.H. at 650 (quotation omitted). In considering
whether a duty to defend exists based upon the sufficiency of
the pleadings, we consider the reasonable expectations of the
insured as to his rights under the policy. Id. An
insurer's obligation is not merely to defend in cases of
perfect declarations, but also in cases in which, by "
any reasonable intendment of the pleadings, liability of the
insured can be inferred, and neither ambiguity nor
inconsistency in the underlying writ can justify escape of
the insurer from its obligation to ...