United States District Court, D. New Hampshire
William P. Rose, Esq., Richard E. Heifetz, Esq., Laura M.
Gregory, Esq. Matthew J. Kennedy, Esq. Anthony J. Antonellis,
J. McAuliffe United States District Judge.
September of 2015, Signal Variety filed suit against Patriot
Insurance Company in state court, seeking a declaratory
judgment that, under the terms of an insurance policy issued
to it by Patriot, Signal Variety is entitled to both a
defense in, and coverage for any liability arising from, an
underlying state tort action. Signal also sought damages for
Patriot’s alleged breach of that insurance policy.
Patriot removed the case, invoking this court’s
diversity jurisdiction. Pending before the court are the
parties’ cross motions for summary judgment.
reasons discussed, Signal Variety’s motion for partial
summary judgment (on the coverage issue) is denied, and
Patriot’s motion for summary judgment is granted.
ruling on a motion for summary judgment, the court must
“constru[e] the record in the light most favorable to
the non-moving party and resolv[e] all reasonable inferences
in that party’s favor.” Pierce v. Cotuit Fire
Dist., 741 F.3d 295, 301 (1st Cir. 2014). Summary
judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). In this context, “a fact is
‘material’ if it potentially affects the outcome
of the suit and a dispute over it is ‘genuine’ if
the parties’ positions on the issue are supported by
conflicting evidence.” Int’l Ass’n of
Machinists & Aerospace Workers v. Winship Green Nursing
Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations
omitted). See also Nolan v. CN8, 656 F.3d 71, 76
(1st Cir. 2011). Nevertheless, if the non-moving
party’s “evidence is merely colorable, or is not
significantly probative, ” no genuine dispute as to a
material fact has been proved, and “summary judgment
may be granted.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).
Insurance Policy Coverage.
declaratory judgment action to determine the scope of
coverage provided by an insurance policy, “the burden
of proof is always on the insurer, regardless of which party
brings the petition.” Rivera v. Liberty Mut. Fire
Ins. Co., 163 N.H. 603, 606 (2012). See also
N.H. Rev. Stat. Ann. (“RSA”) 491:22-a (“the
burden of proof concerning the coverage shall be upon the
insurer whether he institutes the petition or whether the
claimant asserting the coverage institutes the
petition.”). Interpretation of an insurance
policy’s language “is a question of law for [the]
court to decide.” Carter v. Concord General Mut.
Ins. Co., 155 N.H. 515, 517 (2007). Moreover,
“[i]f more than one reasonable interpretation is
possible, and an interpretation provides coverage, the policy
contains an ambiguity and will be construed against the
insurer.” Cogswell Farm Condo. Ass’n v. Tower
Group, Inc., 167 N.H. 245, 248 (2015).
an insurer is obligated to defend its insured depends upon
both the scope of coverage provided by the policy, and the
nature of the underlying claim(s) against the insured. As the
New Hampshire Supreme Court has noted:
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. In considering whether a
duty to defend exists based on the sufficiency of the
pleadings, we consider the reasonable expectations of the
insured as to its rights under the policy. An insurer’s
obligation is not merely to defend in cases of perfect
declarations, but also in cases where, 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 defend. In cases of doubt as to whether the
writ against the insured alleges a liability of the insurer
under the policy, the doubt must be resolved in the
Northern Sec. Ins. Co. v. Connors, 161 N.H. 645, 650
(2011) (citations and internal punctuation omitted).
fall of 2014, Noah Campbell was an employee of Signal
Variety. On November 1 of that year, he was driving an
automobile in which Christopher Hall and Evan McLoughlin were
passengers. Campbell apparently lost control of the vehicle
and struck a tree. Hall and McLoughlin were injured as a
The Underlying State Court Action.
wake of that accident, Hall and McLoughlin filed suit in
Strafford County Superior Court against several defendants -
including Signal Variety - seeking compensation for their
injuries. In their complaint, Hall and McLoughlin allege the
following facts that are material to the current coverage
1. On November 1, 2014, McLoughlin drove Hall and three other
young men to Rochester, New Hampshire. On the way, they
telephoned Noah Campbell, who instructed them to meet him at
the Signal Variety Store. Campbell was, at that time, an
employee of Signal Variety.
2. When the young men arrived at the store, Campbell came out
from behind a dumpster and gave them a cardboard box
containing four six-packs of wine coolers and hard lemonade.
3. Signal Variety “allowed” Campbell to take the
alcoholic beverages from the store.
4. McLoughlin and the passengers in his car then drove to a
house party in Rochester. They arrived at approximately 9:00
PM and ...