United States District Court, D. New Hampshire
Nautilus Insurance Co.
Gwinn Design and Build, LLC, et al.
Michael F. Aylward, Esq. Jaye Rancourt, Esq.
A. DiClerico, Jr., United States District Judge
Insurance Company brought a declaratory judgment action
against Gwinn Design and Build, LLC; its owner, Richard
Gwinn; and Paul J. Stanton, who received a judgment in state
court against Gwinn Design and Gwinn, seeking to establish
that Nautilus has no obligation to cover the state court
judgment.Nautilus moves for summary judgment on
Counts V and VI. Stanton objects to summary judgment.
judgment is appropriate when the moving party “shows
that there is 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). “A genuine issue of material fact
only exists if a reasonable factfinder, examining the
evidence and drawing all reasonable inferences helpful to the
party resisting summary judgment, could resolve the dispute
in that party's favor.” Town of Westport v.
Monsanto Co., 877 F.3d 58, 64-65 (1st Cir. 2017)
(internal quotation marks omitted); Flood v. Bank of Am.
Corp., 780 F.3d 1, 7 (1st Cir. 2015). The facts and
reasonable inferences are taken in the light most favorable
to the nonmoving party. McGunigle v. City of Quincy,
835 F.3d 192, 202 (1st Cir. 2016).
alleged in Paul Stanton's state court complaint, he hired
Gwinn Design in August of 2015 for a project to renovate his
home in Bedford. Stanton and Gwinn entered an updated
agreement in October of 2015. Stanton was not satisfied with
Gwinn Design's work and notified Gwinn in April of 2016
that the workmanship was faulty and incomplete. On March 28,
2017, Stanton sent notice to Gwinn of his construction defect
and breach of contract claims. Gwinn did not respond to the
brought suit against Gwinn in Hillsborough County Superior
Court in June of 2017. Gwinn did not respond, and default was
entered against him. Judgment in the amount of $252, 665.17
was entered by order of the court on September 13, 2017.
Design was insured by Nautilus from May 18, 2015, to May 18,
2016, under a policy of commercial general liability
insurance. The policy provides insurance for property damage
if caused by an “occurrence.” Doc. 1-3, at 10.
The insurance provided under the policy is also subject to
exclusions. Doc. 1-3, at 11-12. In addition, the policy
imposes certain duties on the insured in the event of an
occurrence, offense, claim, or suit as a condition of
coverage. Doc. 1-3, at 19.
did not notify Nautilus of Stanton's suit or of the
default and judgment entered against him. Stanton's
counsel sent a letter to Nautilus in April of 2018, notifying
Nautilus of the judgment against Gwinn. In September, counsel
provided by Nautilus on behalf of Gwinn moved to have the
state court set aside the default judgment. In the motion,
counsel represented that Gwinn had failed to respond to the
suit because of his personal circumstances including his
wife's divorce action against him. The motion was denied
on October 11, 2018.
filed suit in this court on July 23, 2018. In the complaint,
Nautilus seeks a declaratory judgment that it is not
obligated under the policy to provide coverage to Gwinn for
Stanton's claims and judgment. The complaint includes six
counts that raise separate grounds in support of a
moves for summary judgment on Counts V and VII in its
complaint. The motion seeks a declaratory judgment
that Gwinn has waived coverage under the Nautilus policy by
failing to give notice of an accident and failing to give
notice of a claim or suit as required under the terms of the
policy. Gwinn did not respond to the motion.
Stanton objects to the motion for summary judgment.
Count V, Nautilus alleges that Gwinn breached his duty under
the terms of the policy to give notice of an accident.
Nautilus cites Section IV, Part 2.a which requires an insured
to give notice of an “occurrence”. In Count VII,
Nautilus alleges that Gwinn breached ...