Argued: January 13, 2016
Matthew J. Lahey, P.A., of Laconia (Matthew J. Lahey on the
brief and orally), for the plaintiff.
Morrison Mahoney LLP, of Boston, Massachusetts (Kevin Truland
on the brief and orally), for the defendants.
defendants, Markel Corporation, Markel Services, Inc. (Markel
Services), and Essex Insurance Company (Essex), appeal an
order of the Superior Court (O'Neill, J.)
denying their motions for summary judgment and granting
summary judgment to the plaintiff, Michael Newell, in this
insurance coverage action. We affirm in part, reverse in
part, and remand.
following facts were recited in the trial court's order
or appear in the record before us. On or about June 12, 2010,
Newell was allegedly injured in a slip and fall accident at a
property owned by Brames, Inc. (Brames) in Laconia. Brames
was insured under an Amusement Park General Liability Policy
(the Policy) issued by Essex. Essex is a subsidiary of Markel
Corporation and Markel Services is Markel Corporation's
claims handling branch.
alleged injury occurred when he slipped on a wet bathroom
floor on Brames's property during Motorcycle Week 2010.
The floor had recently been washed by Ivy Banks (Banks) of
I&L Cleaning Services. Banks had been cleaning the
bathrooms at the Brames's property during the annual
Motorcycle Week for several years up to and including 2010
under an arrangement that he had entered into with
Brames's co-owner and treasurer, Robert Ames. Under this
arrangement, Banks maintained the bathrooms on the Brames
property during Motorcycle Week in exchange for tips he
received from patrons using the bathrooms. Banks estimated
that he would receive between $75 and $100 in tips per day
during Motorcycle Week, and he neither sought nor received
any other payment for his services. Banks offered similar
services at other motorcycle shows and events throughout the
filed two personal injury actions arising from his slip and
fall. In the first (the Brames action), he sued Brames for
negligence in leaving the floor wet without a warning. That
action concluded with an out-of-court settlement.
second lawsuit (the Banks action), Newell sued Banks. The
defendants received notice of the Banks action, but declined
to defend Banks or intervene. Banks, although properly
served, filed neither an appearance nor an answer and was
defaulted. A default judgment was entered against Banks for
$300, 000, the full amount of damages sought by Newell.
then brought the instant action to recover the $300, 000
default judgment from the defendants. In his complaint,
Newell alleged that "Banks was an insured under a
liability insurance policy issued by Markel/Essex to Brames,
and that Markel/Essex breached the insurance contract by
failing to defend and indemnify Banks after receiving notice
of the suit." Newell alleged that he was "a third
party beneficiary under the contract."
ruling on the parties' cross-motions for summary
judgment, the court noted that the only issue before it was
whether Banks was an insured under Brames's policy with
Essex at the time of Newell's slip and fall. The court
concluded: "[U]nder a reasonable interpretation of the
relevant language in the Essex policy, Mr. Banks qualified as
a 'volunteer worker.' Because more than one
reasonable interpretation is possible, and one interpretation
provides coverage, the Court construes this language against
the defendants and in favor of the plaintiff."
(Quotation, citation, and brackets omitted.)
appeal, the defendants argue that the trial court erred in
determining that the language of the Policy is ambiguous and
that Banks was a "volunteer worker" under the
Policy. In addition, Markel Corporation and Markel Services
claim that they are entitled to summary judgment because
"they did not issue the policy in dispute and the
plaintiff did not object to their motion for summary
judgment." Newell counters that Banks is a
"volunteer worker" as defined under the Policy and
that Essex is barred from denying the same under the doctrine
of judicial estoppel.
appeal from the disposition of cross-motions for summary
judgment, we employ the following standard of review:
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.
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, then we will affirm the grant ...