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Todd v. Vermont Mutual Insurance Co.

Supreme Court of New Hampshire

April 7, 2016

Thomas Todd
v.
Vermont Mutual Insurance Company & a

         Argued November 12, 2015

Page 1116

[Copyrighted Material Omitted]

Page 1117

          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.

          Lewis 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.

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

          OPINION

Page 1118

          Conboy, J.

           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.

Page 1119

         I. Background

         The 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.' "

         Sally 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.

         At all 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.

         The AMC 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.

         In 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.

         In June 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 (2010).

         The 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 appeal followed.

         II. 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

Page 1120

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.

         Resolution 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 insurer.

         III. The Duty to Defend

          An 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 ...


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