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Cam-Sam Real Estate Holding, LLC v. Merchants Mutual Insurance Co.

United States District Court, D. New Hampshire

July 8, 2019

Cam-Sam Real Estate Holding, LLC, Plaintiff
v.
Merchants Mutual Insurance Company and Hartford Fire Insurance Company, Defendants Sentinel Insurance Company, Ltd. a/k/a Hartford Fire Insurance Company, Counter Claimant and Third Party Plaintiff
v.
Cam-Sam Real Estate Holding, LLC, Counter Defendant, and D La Pooch Hotel, LLC, n/k/a D La Pooch Resort, LLC, and Lindsey Todt, Third Party Defendants

          David W. Rayment, Esq., Jeffrey Christensen, Esq., Doreen F. Connor, Esq., Michele Carlucci Sears, Esq., Laura Nicole Carlier, Esq., Richard E. Heifetz, Esq.

          ORDER

          Steven J. McAuliffe, United States District Judge.

         In this insurance coverage dispute, Sentinel Insurance Company, Limited (improperly named as Hartford Fire Insurance Company) (“Sentinel”) moves for summary judgment that Sentinel has no obligation to provide coverage, and no duty to defend or indemnify with regard to the claims asserted in the complaint. Cam-Sam Real Estate Holding, LLC, (“Cam-Sam”) and D La Pooch Hotel, LLC, (“D La Pooch”), along with Lindsey Todt, object. For the reasons discussed, Sentinel's motion is granted.

         Background

         Cam-Sam is the owner of a multi-unit commercial building and property located at 21 Londonderry Turnpike, in Hooksett, New Hampshire. On June 2, 2016, Cam-Sam rented Unit 1 of the building to D La Pooch for a term of five years. D La Pooch operated a pet daycare and grooming business in the leased premises.

         The lease between Cam-Sam and D La Pooch required D La Pooch to obtain “comprehensive liability insurance on the Leased Premises” carried “in the name of and for the benefit of Tenant and Landlord, ” written on “an occurrence” basis. Document 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.” Document No. 15, ¶ 10.

         D La Pooch obtained insurance coverage from Sentinel. The policy issued by Sentinel consists of three types of coverage: (1) Commercial General Liability/Pet Groomer's Professional Liability; (2) Workers Compensation and Employers' Liability; and (3) Building and Business Personal Property. The Commercial General Liability coverage and Building and Business Personal Property coverage both fall within policy No. “81 SBA PP8836” (the “Policy”). The Worker's Compensation and Employers' Liability coverage is policy No. 81WECBQ7144. Cam-Sam is an additional insured with regard to the Policy's Commercial General Liability coverage.

         Cam-Sam contends that, during its tenancy, D La Pooch caused extensive damage and contamination of Unit 1 by, inter alia, failing to properly clean up after the pets, and failing to exercise reasonable care in its use of the plumbing and water fixtures. After unsuccessfully attempting to work with D La Pooch to solve the problem, Cam-Sam began eviction proceedings. D La Pooch vacated Unit 1 on or about August 20, 2017. Cam-Sam then discovered the extent of the damage. Unit 1 was severely contaminated by pet urine and feces. And, water from overflowing toilets and spillage/seepage had caused substantial damage. Those damages required significant repairs, including: removal of all building materials from Unit 1 down to the building's shell; remediation of odor, mold and bacteria in the air and duct system; and shot blasting the concrete floor.

         Cam-Sam filed suit against D La Pooch, asserting claims for negligence and breach of contract. Cam-Sam contends that D La Pooch breached its lease agreement with Cam-Sam by:

• Failing to make monthly rental and fit-up payments;
• Allowing noxious fumes to permeate the building materials;
• Injuring and defacing Unit 1;
• Allowing dog urine and feces to permeate into Unit 1's building materials;
• Engaging in “extra hazardous” activities by failing to properly contain and clean up dog urine, feces ...

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