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Zannini v. Phenix Mutual Fire Insurance Company

Supreme Court of New Hampshire, Merrimack

December 17, 2019

STEVEN ZANNINI & a.
v.
PHENIX MUTUAL FIRE INSURANCE COMPANY

          Argued: November 6, 2019

          Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Roy W. Tilsley, Jr. and Hilary Holmes Rheaume on the brief, and Mr. Tilsley orally), for the plaintiff.

          Primmer Piper Eggleston & Cramer, PC, of Manchester (Gary M. Burt and John D. Prendergast on the brief, and Mr. Burt orally), for the defendant.

          DONOVAN, J.

         The plaintiffs, Steve and Pamela Zannini, appeal an order of the Superior Court (Kissinger, J.) granting summary judgment to the defendant, Phenix Mutual Fire Insurance Company, on the plaintiffs' breach of contract and declaratory judgment claims. The plaintiffs argue that: (1) a provision in the insurance policy at issue requiring that suits be brought within one year of the date of loss is unenforceable because it violates public policy; and (2) genuine issues of material fact exist as to whether the defendant's communications tolled the one-year period, the defendant is estopped from asserting it as a defense, or the defendant waived it as a defense. We affirm. The one-year limitation period does not violate the public policy underlying statutes of limitations. Further, the communications between the parties did not create issues of material fact as to whether the one-year period was tolled or whether the defendant waived or was otherwise estopped from asserting the provision as a defense.

         I. Facts

         The following facts are drawn from the evidence presented to the trial court. On March 4, 2016, the plaintiffs' Ashland residence sustained "significant flooding" as the result of burst pipes. The house was insured by the defendant, and the plaintiffs filed a claim for water damage. The defendant sent an adjuster to investigate, who instructed the plaintiffs to remove the floor of the house so that he could investigate the area underneath. After they did so, the house began to collapse, and the plaintiffs repaired its framing to prevent it from collapsing completely. As a result of removing the floor, the plaintiffs "suffered a complete loss [of the house] and direct physical loss of [their] personal property and use of the [house] for a substantial amount of time." On May 3, 2016, the defendant sent the plaintiffs a letter denying coverage of the damage caused by the collapse.[1]

         The insurance policy included the following "Suit Against Us" provision: "No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss." Following the defendant's denial notice, the parties attempted to negotiate a resolution to the claim. On February 9, 2017, defendant's counsel sent plaintiffs' counsel a communication requesting "all documentation" relating to the collapse. Defendant's counsel sent plaintiffs' counsel another communication on March 19, 2017, stating that the defendant "would like to resolve the claim if possible." On September 8, 2017, plaintiffs' counsel sent defendant's counsel a letter with photographs of the damaged floor. On January 15, 2018, defendant's counsel sent plaintiffs' counsel a communication stating that the defendant's position had not changed.

         On February 23, 2018, nearly two years after the pipes burst, the plaintiffs filed a breach of contract and declaratory judgment action against the defendant. The defendant moved for summary judgment, on the basis that the plaintiffs' suit was barred by the policy's one-year time-limitation provision.[2] The plaintiffs opposed summary judgment, arguing that the provision is unenforceable because it violates the public policy underlying the statute of limitations, that the defendant's conduct tolled the time limit, and that genuine issues of material fact exist as to whether the defendant either waived or is estopped from asserting the time limit as a defense.

         The trial court granted the summary judgment motion, concluding that allowing parties to contract for a shorter period to initiate an action than the statutorily prescribed limitation period does not violate the public policy underlying the statute of limitations. It also concluded that the provision was not unreasonable, and not unenforceable because the plaintiffs did not show that it was impossible for them to comply with the provision. Finally, the court concluded that the communications between the parties' counsel did not create an issue of material fact as to whether the defendant tolled the one-year period, was estopped from asserting it as a defense, or waived it. The plaintiffs filed a motion for reconsideration, which the trial court denied. This appeal followed.

         II. Standard of Review

         We review a trial court's grant of summary judgment de novo. Clark v. N.H. Dep't of Emp't Sec., 171 N.H. 639, 650 (2019). When reviewing a trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Id. If our review of that evidence reveals no genuine dispute of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. Id.

         III. Analysis

         A. ...


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