United States District Court, D. New Hampshire
W. Rayment, Esq. Jeffrey Christensen, Esq. Doreen F. Connor,
Esq. Michele Carlucci Sears, Esq. Laura Nicole Carlier, Esq.
Richard E. Heifetz, Esq.
J. McAuliffe United States District Judge.
insurance dispute, Cam-Sam Real Estate Holding, LLC, asserts
claims of negligence and negligent misrepresentation against
third party defendants, Mourer-Foster, Inc., and John T.
Foster (collectively, “Foster”). Foster has moved
to dismiss Cam-Sam's claims against it. Cam-Sam objects.
is the owner of a commercial building and property located at
21 Londonderry Turnpike, in Hooksett, New Hampshire. Cam-Sam
rented Unit 1 of the building to D La Pooch Hotel, LLC, for a
term of five years. The lease between Cam-Sam and D La Pooch
required that D La Pooch obtain “comprehensive
liability insurance on the Leased Premises” carried
“in the name of and for the benefit of Tenant and
Landlord, ” and written on “an occurrence”
basis. Docket No. 15, ¶ 10. The lease further mandated
the following with respect to coverage: at least $1, 000, 000
“in case of death or injury to one person;” $1,
000, 000 “in case of death or injury to more than one
person in the same occurrence;” and $250, 000 “in
case of loss, destruction or damage to property.”
Docket No. 15, ¶ 10.
with those obligations, D La Pooch provided Cam-Sam with a
Certificate of Liability Insurance prepared by its insurance
agent, Foster. The Certificate relates to the following
insurance policies: a Commercial General Liability/Pet
Groomer's Professional Liability policy, identified as
No. 81SBAPP8836 (the “Policy”); a Workers
Compensation and Employers' Liability policy; and an
Animal Bailee/Business Personal Property policy. All policies
are issued by Hartford Fire Insurance (“Hartford”).
The Certificate identifies Cam-Sam as “an additional
insured with regards to general liability, ” as well as
coverage limits, including a coverage limit of $1, 000, 000
under the Commercial General Liability policy for
“damage to rented premises ([each] occurrence).”
Id. at ¶¶ 8-9. The Certificate further
indicates that, should any of the policies be cancelled prior
to their expiration date, “notice will be delivered in
accordance with the policy provisions.” Id. at
¶ 12. Cam-Sam alleges that it relied upon the
Certificate when deciding to lease Unit 1 to D La Pooch.
Id. at ¶ 14.
the termination of D La Pooch's tenancy, Cam-Sam
discovered significant damage to the premises, and
subsequently filed suit against D La Pooch. Cam-Sam also
initiated this declaratory judgment action against its own
insurer, Merchants Mutual, and Hartford. In response,
Hartford moved for declaratory judgment against Cam-Sam
determining that it was not entitled to coverage. According
to Cam-Sam, Hartford has alleged that Cam-Sam is not an
additional insured under the policies issued to D La Pooch,
and that there is no coverage under Hartford's policies
for “damage to rented premises.”
on Hartford's position, Cam-Sam brought claims against
Foster. Cam-Sam alleges that, to the extent Hartford is
correct, Foster is liable for preparing and delivering an
inaccurate Certificate that misrepresented the policies.
Cam-Sam further alleges that it “was an intended and
named beneficiary” of the Certificate (id. at ¶
20), and Foster acted negligently when it prepared and sent
ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable
inferences in favor of the pleader.” SEC v.
Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the
complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face,
” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and internal punctuation omitted).
other words, “a plaintiff's obligation to provide
the ‘grounds' of his ‘entitlement to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Instead, the facts alleged in the
complaint must, if credited as true, be sufficient to
“nudge [plaintiff's] claims across the line from
conceivable to plausible.” Id. at 570. If,
however, the “factual allegations in the complaint are
too meager, vague, or conclusory to remove the possibility of
relief from the realm of mere conjecture, the complaint is
open to dismissal.” Tambone, 597 F.3d at 442.
a court must decide a motion to dismiss exclusively upon the
allegations set forth in the complaint and the documents
specifically attached, or convert the motion into one for
summary judgment. See Fed.R.Civ.P. 12(2). However, when
“a complaint's factual allegations are expressly
linked to - and admittedly dependent upon - a document (the
authenticity of which is not challenged), that document
effectively merges into the pleadings and the trial court can
review it in deciding a motion to dismiss under Rule
12(b)(6).” Beddall v. State St. Bank & Trust
Co., 137 F.3d 12, 17 (1st Cir. 1998).
first to Cam-Sam's allegations against Foster relating to
its status as an “additional insured” under the
referenced policies, it should be noted that Cam-Sam
incorrectly characterizes the position taken by Hartford.
Hartford does not generally allege, as Cam-Sam contends, that
Cam-Sam is not an “additional insured.” Hartford,
instead, alleges that Cam-Sam is not an “additional
insured” under the Special Property Coverage
Form. That position is fully consistent with the terms
of the Certificate, which represents that Cam-Sam is an
“additional insured with regards to general
liability.” Doc. No. 15-1 (emphasis added). The
Special Property Coverage Form is not mentioned. Id.
And, Hartford's Commercial General Liability Policy
reflects Cam-Sam's additional insured status, as noted in
the Certificate. The Policy states that “[a]ny person
or organization from whom [the insured] lease[s] land or
premises” is an additional insured under the ...