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Newell v. Markel Corp.

Supreme Court of New Hampshire

June 28, 2016

MICHAEL NEWELL
v.
MARKEL CORPORATION & a.

          Argued: January 13, 2016

         Belknap.

          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.

          HICKS, J.

         The 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.

         The 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.

         Newell's 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 country.

         Newell 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.

         In the 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.

         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."

         In 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.)

         On 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.

         In this 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 ...

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