United States District Court, D. New Hampshire
Melissa Brill, Esq. Laura Dowgin, Esq. J. Bruce Maffeo, Esq.
Peter J. Nicosai, Esq.
A. DiClerico, Jr. United States District Judge
Wells, who does business as Centerpoint Chimney, brought suit
in state court against his insurer, Acceptance Indemnity
Insurance Company (“AIIC”), seeking a declaration
that AIIC owed him a defense and indemnification in an
underlying lawsuit and alleging that AIIC has breached its
insurance policy. AIIC removed the case to this court and
moves to dismiss on the ground that it has no duty to defend
or indemnify Wells under the terms of the policy. Wells
objects. AIIC filed a reply after the deadline for doing so.
See LR 7.1(e)(1).
purposes of a motion to dismiss, the court accepts all
well-pleaded facts as true, disregarding mere legal
conclusions, and resolves reasonable inferences in the
plaintiff's favor. Galvin v. U.S. Bank, N.A.,
852 F.3d 146, 155 (1st Cir. 2017). Taken in that light, the
complaint must state sufficient facts to support a plausible
claim for relief. In re Curran, 855 F.3d 19, 25 (1st
Cir. 2017). The plausibility standard is satisfied if the
factual allegations in the complaint “are sufficient to
support the reasonable inference that the defendant is
liable.” In re Fidelity ERISA Float Litig.,
829 F.3d 55, 59 (1st Cir. 2016) (internal quotation marks
addition to the allegations in the complaint, the court may
also consider “documents the authenticity of which are
not disputed by the parties . . ., documents central to
plaintiffs' claim, . . . [and] documents sufficiently
referred to in the complaint.” Ironshore Specialty
Ins. Co. v. United States, 871 F.3d 131, 135 (1stCir.
2017) (internal quotation marks omitted). For that reason, in
this case, the court will consider the insurance policy and
the complaint in the underlying suit against Wells, along
with the allegations in Wells's complaint.
Wells and his company, Centerpoint Chimney, were sued in
state court by Marlin Fogg who alleges that he was an
authorized agent of one of Wells's subcontractors on a
residential roofing project. Fogg also alleges that while
working on the project he fell off of the roof and was
injured as a result of the negligence of Wells and others.
Wells was insured by AIIC and provided notice of the suit to
acknowledged receiving Wells's notice but declined to
provide a defense or to indemnify Wells in Fogg's suit on
the ground that two exclusionary endorsements in the policy
precluded coverage. Specifically, AIIC cited an endorsement
titled “Injury to Employees, Workers or Contracted
Persons or Insureds or Contracted Organizations
Exclusion” and an endorsement titled “Injury to
Independent Contractors Exclusion.” Wells brought suit
to contest AIIC's decision not to provide a defense or
indemnification in the Fogg suit.
moves to dismiss Wells's claims based on the exclusions
cited in the coverage denial letter. Wells objects, arguing
that other provisions in the policy create an ambiguity as to
whether the policy covers the claims in the Fogg suit. Wells
also argues that discovery is required to determine
Fogg's status at the job site.
parties do not distinguish between an insurer's duty to
defend and the duty to indemnify. The duty to defend is
different from and broader than the duty to indemnify.
Great Am. Dining, Inc. v. Phil. Indem. Ins. Co., 164
N.H. 612, 627 (2013); accord Mass. Bay Ins. Co. v. Am.
Healthcare Servs. Ass'n, 172 A.3d 1043, 1049, n.12
(N.H. 2017). The duty to defend arises at the beginning of
the underlying litigation and is based on allegations
“that potentially support a covered claim.”
Id. The duty to indemnify arises only once liability
has been determined in the underlying litigation and is based
on “the facts actually established in the underlying
interpretation of the language in an insurance policy is a
legal question for the court to decide. Exeter Hosp.,
Inc. v. Steadfast Ins. Co., 170 N.H. 170, 174 (2017). To
interpret policy language, the court considers “the
plain and ordinary meaning of the policy's words in
context . . . [and] construe[s] the terms of the policy as
would a reasonable person in the position of the insured
based upon more than a casual reading of the policy as a
whole.” Id. “Where an insurance
policy's language is reasonably susceptible of more than
one interpretation, however, and one reasonable
interpretation favors coverage, we construe the ambiguity
against the insurer and in favor of coverage in order to
honor the reasonable expectation of the policyholder.”
may use exclusions to limit the coverage provided in their
policies, as long as the exclusions comply with statutory
requirements. Mass. Bay, 172 A.3dat 1049. To be
effective, the language in an exclusion “must be so
clear, however, as to create no ambiguity that might affect
the insured's reasonable expectations.”
Id. (internal quotation marks omitted). “In a
declaratory judgment action to determine the coverage of an
insurance policy, the burden of ...