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Lath v. BMS Cat and Amica Mutual Insurance Co.

United States District Court, D. New Hampshire

April 17, 2018

Sanjeev Lath
v.
BMS Cat and Amica Mutual Insurance Company

          ORDER

          Landya McCafferty, United States District Judge

         This case now consists of nine claims against two defendants, including four claims against BMS Cat (“BMS”), a company with which Sanjeev Lath contracted in the aftermath of a fire at his unit in the Oak Brook Condominium. Before the court is Lath's motion for summary judgment on Causes 20 and 21 of his First Amended Complaint (“FAC”).[1] BMS objects on both procedural and substantive grounds. For the reasons that follow, Lath's motion for summary judgment is denied.

         I. Discussion

         The arguments the parties make for and against summary judgment in favor of Lath on Causes 20 and 21 are virtually identical to those they made with respect to Cause 22. For the same reasons the court gave in its order denying Lath's motion for summary judgment on Cause 22, see doc. no. 301, Lath's motion for summary judgment on Causes 20 and 21 is also denied, and his motion to strike BMS's surreply is denied as moot. That said, there are several aspects of this case that merit attention at this juncture.

         A. Cause 20

         Cause 20 bears the following heading: “Breach of Implied Covenant of Good Faith and Fair Dealing - Inventory List not prepared and maintained and Items disposed.” Doc. no. 24 at 77.

         According to Lath:

[T]here was an implied covenant of good faith and fair dealing, that Lath's belongings [would] only be “packed” and transported to an offsite location to be cleaned and washed. The implied covenant was to refrain [sic] BMS Catastrophe Inc., from disposing of any of Lath's belongings.
. . . .
Lath alleges that there was a second implied covenant in the Contents Advanced Work Authorization that an accurate list of inventory would be maintained by BMS Catastrophe Inc. . . . and such a list would be provided to Lath towards [the] end of the day [on which BMS packed up his belongings].

Doc. no. 24 at ¶¶ 284 & 286. It is not at all clear that Lath has stated a claim upon which relief can be granted for breach of the implied covenant of good faith and fair dealing.

         In New Hampshire, “[i]n every agreement, there is an implied covenant that the parties will act in good faith and fairly with one another.” Birch Broad., Inc. v. Capitol Broad. Corp., 161 N.H. 192, 198 (2010) (citing Livingston v. 18 Mile Point Drive, Ltd., 158 N.H. 619, 624 (2009)). As the Birch Broadcasting court further explained:

In New Hampshire, there is not merely one rule of implied good-faith duty, but a series of doctrines, each of which serves a different function. [Livingston, 158 N.H. at 624]. The various implied good-faith obligations fall into three general categories: (1) contract formation; (2) termination of at-will employment agreements; and (3) limitation of discretion in contractual performance. Id.

         161 N.H. at 198. As for the third category, which is applicable here, the rule is that

under an agreement that appears by word or silence to invest one party with a degree of discretion in performance sufficient to deprive another party of a substantial proportion of the agreement's value, the parties' intent to be bound by an enforceable contract raises an implied obligation of good faith to observe reasonable limits in ...

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