Articles Posted in New Hampshire Supreme Court

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In this declaratory judgment proceeding, petitioner Exeter Hospital, Inc. (Exeter) appealed a superior court order denying its motion for partial summary judgment as to the amount at which coverage was triggered under an umbrella policy (the policy) issued to Exeter by respondent Steadfast Insurance Company (Steadfast). In the spring of 2012, an outbreak of Hepatitis C infections among patients serviced by Exeter’s cardiac catheterization lab led investigators to discover that a technician had spread the virus to patients “through a clandestine drug diversion scheme.” The technician allegedly injected certain drugs into his body by way of intravenous needles, then reused the needles on patients, thereby infecting them with the virus. Numerous lawsuits were lodged against Exeter by affected patients. Exeter was primarily insured through a Self-Insurance Trust Agreement (SIT), which provided professional liability coverage in the amount of $1 million per medical incident, with a $4 million annual aggregate cap. Exeter also maintained the policy with Steadfast, which provided excess health care professional liability coverage. Steadfast maintained that it would pay damages only in excess of the $100,000 retained limit for each medical incident. Exeter filed this proceeding, seeking a declaration that it was not required to pay $100,000 retained limit per claim. The trial court interpreted the term “applicable underlying limit” as being a variable amount “dependent on the actual coverage remaining under [the] other [limits of] insurance,” here, the limits of the SIT. Because Exeter had paid out the limits of the SIT, the court found that the “applicable underlying limit” was zero, thereby rendering the $100,000 retained limit greater than the “applicable underlying limit.” Thus, the court determined that, pursuant to “Coverage A,” Steadfast was required “to pay damages in excess of $100,000 for each medical incident.” Exeter sought reconsideration of the court’s order, which the court denied. Although the New Hampshire Supreme Court did not agree with every underlying argument pressed by Exeter, it concluded that its overall argument regarding the interpretation of Coverage A was reasonable, and the trial court therefore erred in granting partial summary judgment as to the terms of Coverage A. View "Exeter Hospital, Inc. v. Steadfast Insurance Company" on Justia Law

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Defendants, Markel Corporation, Markel Services, Inc. (Markel Services), and Essex Insurance Company (Essex), appealed a superior court order denying their motions for summary judgment and granting summary judgment to plaintiff Michael Newell, in this insurance coverage action. Newell was allegedly injured in a slip and fall accident at a property owned by Brames, Inc. (Brames) in Laconia. Brames was insured under an Amusement Park General Liability Policy issued by Essex. Essex was a subsidiary of Markel Corporation and Markel Services was Markel Corporation’s claims handling branch. Newell filed two personal injury actions arising from his slip and fall. The first action against Brames' co-owner and treasurer, was settled out-of-court. In the second lawsuit, Newell sued Ivy Banks, the person who allegedly cleaned the floor upon which Newell slipped and injured himself. Defendants received notice of the Banks action, but declined to defend Banks or intervene. Banks, although properly served, filed neither an appearance nor an answer and was defaulted. A default judgment was entered against Banks for $300,000, the full amount of damages sought by Newell. Newell brought suit against defendants to recover the amount of the default judgment, arguing he was a third party beneficiary under the insurance contract between Brames and Markel/Essex. On appeal, defendants argued the trial court erred in determining that the language of the Policy was ambiguous and that Banks was a “volunteer worker” under the Policy. Finding no reversible error, the Supreme Court affirmed denial of defendants' motion for summary judgment. View "Newell v. Markel Corporation" on Justia Law

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Petitioner Thomas Todd, a Massachusetts resident, is a member of the New Hampshire Chapter of the Appalachian Mountain Club (AMC). He was a member of the AMC’s paddling committee since 1989 and was the committee’s co-chair in 2009 and 2010. Sally Leonard was also a member of the AMC’s paddling committee. In January 2014, Leonard filed a stalking petition against Todd, alleging Todd "hacked" her computer and broke her vehicle’s window after she had voiced her opinion at an AMC meeting that Todd should not be allowed to participate in a paddling committee event "due to his history of aggressive behavior toward females." Todd was insured under a homeowner’s insurance policy and an umbrella liability policy issued to him by Vermont Mutual Insurance Company. After the stalking petition was filed, Todd notified Vermont Mutual of the action and requested that it provide a defense under one or both of the policies. Vermont Mutual declined. The AMC was insured by Hanover Mutual Insurance Company under an employment practices liability (EPL) policy and a nonprofit directors, officers and organizations liability (D & O) policy. Todd informed the AMC of the stalking petition and requested that it notify Hanover to provide him with a defense. Hanover declined too. In March 2014, the Circuit Court ultimately found that Leonard “failed to sustain [her] burden of proof,” and, therefore, the court did not issue a restraining order against Todd. Todd incurred approximately $18,000 in attorney’s fees and costs in defending against the stalking petition. In June 2014, Todd filed this declaratory judgment proceeding, seeking a declaration that Vermont Mutual and Hanover owed a duty to defend him against the stalking petition and to reimburse him for the attorney’s fees and costs incurred in defending against the stalking petition. In addition, he sought attorney’s fees and costs for bringing the declaratory judgment proceeding. Todd appealed when cross-motions for summary judgment and summary judgment were granted favor of the insurance companies. Finding no reversible error, the Supreme Court affirmed the circuit court. View "Todd v. Vermont Mutual Insurance Co." on Justia Law

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The United States Court of Appeals for the First Circuit certified a question of New Hampshire law to the New Hampshire Supreme Court. The question arose from a dispute between Old Republic Insurance Company and Stratford Insurance Company as to their respective coverage and defense obligations arising out of a motor vehicle accident involving their insureds. Old Republic and Stratford each provided insurance coverage for a tractor-trailer that collided with a passenger vehicle. The owner of the tractor, Ryder Truck Rentals, had purchased an insurance policy from Old Republic. DAM Express, a for-hire motor company, had leased the tractor from Ryder. Although, pursuant to the lease agreement, Ryder was responsible for obtaining liability insurance for the tractor, DAM also purchased a separate insurance policy from Stratford. When the collision occurred, the driver of the tractor-trailer was employed by DAM, and the trailer was owned by Coca-Cola. The question posed to the New Hampshire Supreme Court was whether, under New Hampshire law, when was an excess insurer’s duty to defend triggered? Did New Hampshire follow the general rule that the excess insurer’s duty to defend is triggered only when the primary insurer’s coverage is exhausted? If not, what rule as to allocation of defense costs and timing of payment did New Hampshire follow? The New Hampshire Court responded that under New Hampshire law, the excess insurer’s duty to defend is triggered only when the primary’s insurer’s coverage is exhausted. View "Old Republic Insurance Co. v. Stratford Insurance Co." on Justia Law

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Appellant, Century Indemnity Company (CIC) appealed a Superior Court order that granted Respondent Roger Sevigny, Commissioner of Insurance and Liquidator of the Home Insurance Company (Home) an award of statutory prejudgment interest on certain monies owed to Home by CIC. Home is an insurance company, organized under the laws of New Hampshire, which was declared insolvent and placed in liquidation in 2003. CIC is an insurance company organized under the laws of Pennsylvania. CIC and Home have a set of co-insurance and reinsurance relationships. In prior litigation, the Supreme Court held that an asserted $8 million setoff claim by CIC, which had been waived and then reacquired by CIC in a pair of settlement agreements with PECO, was impermissible under New Hampshire law. The New Hampshire Court explicitly declined, without prejudice, to decide the issue at issue here: whether Home’s estate was entitled to prejudgment interest on the payments CIC wrongfully withheld based upon setoff. The Court denied CIC’s motion for reconsideration in the "Home IV" appeal; after remand, the Liquidator filed a motion in superior court for interest on amounts withheld by CIC based upon improper setoff, to which CIC objected. CIC removed the PECO setoff from its monthly statement to Home and paid the previously withheld $8 million to the Liquidator. The trial court entered an order granting the motion and finding that Home was entitled to prejudgment statutory interest under RSA 524:1-a (2007) accruing from October 2007 (the date of the Liquidator’s letter notifying CIC of his determination to disallow the PECO setoff). This appeal followed. Finding no reversible error in the Superior Court's order, the Supreme Court affirmed. View "In the Matter of the Rehabilitation of the Home Insurance Company" on Justia Law

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Respondents The Local Government Center, Inc. (LGC), Local Government Center Real Estate, Inc., Local Government Center Health Trust, LLC, Local Government Center Property-Liability Trust, LLC, Health Trust, Inc., New Hampshire Municipal Association Property-Liability Trust, Inc., LGC-HT, LLC, and Local Government Center Workers' Compensation Trust, LLC, appealed a final order of a presiding officer of petitioner the New Hampshire Bureau of Securities Regulation (Bureau), finding that they violated RSA 5-B:5, I(c) (2013) and required, among other things, HealthTrust to return $33.2 million to its members, P-L Trust to return $3.1 million to its members, and P-L Trust to transfer $17.1 million to HealthTrust. After its review of the matter, the Supreme Court agreed with one of respondents' arguments with respect to the purchase of reinsurance: the presiding officer erred by requiring HealthTrust to purchase it. The Court affirmed the presiding officer in all other respects, and remanded the case for further proceedings on the reinsurance issue. View "Appeal of the Local Government Center, Inc." on Justia Law

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Defendants Leisure Life Industries a/k/a Leisure Life Industries, Inc. a/k/a Leisure Life Industries, LLC (Leisure Life) and Knothe Apparel Group, Inc. appealed a superior court order that denied their motion for summary judgment and granted the cross-motion for entry of final judgment on the issue of indemnity filed by plaintiffs, JoAnne Gray, Jeffrey Gray, Jeffrey J. Gray, and Jonathan Gray. The defendants also appealed the trial court’s order denying their motion for summary judgment on successor liability. Jeffrey Gray purchased a robe from The Orvis Company (Orvis) for his wife, JoAnne. Orvis purchased the robe from the manufacturer, Leisure Life. Mrs. Gray was wearing the robe when she added a piece of firewood to her wood stove and the robe caught fire. As result, she was severely burned and suffered extensive injuries. Plaintiffs sued the defendants and Orvis along with other parties involved either in the design and distribution of the robe or the manufacture and sale of the wood stove. Leisure Life argued that it was not liable for the plaintiffs" injuries because it was no longer the same entity that manufactured the robe, and the circumstances of the purchase did not support holding Knothe liable as a successor. The trial court denied the motion. Orvis claimed that it "had no involvement in the design and manufacturing of the robe" and that it "was simply a 'pass-through' entity." As a result, Orvis sought indemnity or contribution from the defendants for any damages it ultimately owed to the plaintiffs, including the amount of any judgment against, or settlement by, Orvis. Immediately prior to the scheduled start of the trial, all parties except Leisure Life settled with the plaintiffs. The parties involved in the sale and manufacture of the wood stove settled the claims against them for five million dollars. Orvis settled the claims against it for one million dollars and assigned to the plaintiffs "any and all rights to indemnity" that Orvis had against the defendants. The settlement did not extinguish the plaintiffs' claims against the defendants. The plaintiffs, as Orvis's assignees, subsequently moved for summary judgment against the defendants on the indemnity claim. On appeal, the defendants argue that the trial court erred in granting summary judgment for the plaintiffs on the issue of indemnity. They further contend that there is no basis for the trial court’s award of attorney’s fees and costs and that, therefore, the award must be set aside. Finally, the defendants argue that the trial court erred in finding Knothe liable as a successor to Leisure Life. Upon review, the Supreme Court concluded plaintiffs' indemnity claim failed because when Orvis settled with the plaintiffs, it extinguished its own liability, but not that of the defendants. The trial court's order addressing the settlement stated that "[t]his case has been settled as to all defendants except Leisure Life Industries." In consideration for the receipt of one million dollars and the assignment of Orvis's indemnity rights against the defendants, the plaintiffs released Orvis from all claims of liability asserted against it. In contrast, there was no release of liability running to the defendants, and the defendants remained potentially liable to the plaintiffs under the theories of direct liability asserted against them, including the strict liability claim. The Court reversed the trial court’s denial of summary judgment with respect to the plaintiffs’ indemnity claim. View "Gray v. Leisure Life Industries " on Justia Law

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Petitioner Thomas Phillips appealed a New Hampshire Compensation Appeals Board (CAB) decision denying him recovery under the Workers’ Compensation Law. The CAB ruled that petitioner was not entitled to benefits because he had failed to timely notify his employers, Norman and Diane Crocker, of his claim. Furthermore, the CAB ruled that petitioner was not entitled to benefits because, unbeknownst to the Crockers, he was intoxicated at the time of his injury. In 2006, petitioner and his wife lived in a trailer that they rented from the Crockers. As part of the lease agreement, the petitioner performed yard work and minor home repairs for the Crockers in exchange for a rent reduction. Mr. Crocker asked petitioner to remove a tree branch that was growing near the Crockers’ house. The next day, petitioner fell from a ladder while cutting the branch with a chainsaw. As a result of the fall, petitioner was rendered a quadriplegic. Petitioner filed a claim for workers’ compensation benefits, identifying the Crockers as his employer. The Crockers were insured under a homeowner’s insurance policy issued by State Farm Fire and Casualty Company (State Farm) that included workers’ compensation coverage for domestic employees. State Farm denied petitioner workers’ compensation benefits. The New Hampshire Department of Labor (DOL) Hearing Officer determined that petitioner was entitled to benefits. State Farm appealed to the CAB. Upon review, the Supreme Court affirmed in part, reversed in part and remanded for further proceedings: (1) the CAB misapplied the governing New Hampshire case law to the petitioner’s claim; (2) petitioner’s claim was not time barred; and (3) a factual question remained whether petitioner's injury was caused in whole or in part by his intoxication. View "Appeal of Thomas Phillips" on Justia Law

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Respondent Philadelphia Indemnity Insurance Company appealed a superior court order that found Petitioner Great American Dining, Inc (GAD) was an additional insured under a Philadelphia policy. The dispute arose from a slip-and-fall injury in 2008 whereby the injured party sued DW Ray Commons, LLC, who owned and leased a building to Webster Place Center, Inc. DW Ray required Webster Place to obtain an insurance policy listing DW Ray as an additional insured. The commercial general liability policy contained a provision listing as an additional insured "any person or organization with respect to their liability arising out of the ownership, maintenance or use o that part of the premises leased or rented…" When DW Ray and Webster Place were sued for damages and settled with the injured party. That party then sued GAD for contribution on the theory that GAD constructed, installed and maintained the premises under the policy. GAD then sought a declaration that it too was an additional party under the DW Ray policy. Upon review, the Supreme Court agreed GAD was an additional party and upheld the superior court's judgment. View "Great American Dining, Inc. v. Philadelphia Indemnity Insurance Company " on Justia Law

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Defendants Robert Christy, Christy & Tessier, P.A., Debra Johnson, and Kathy Tremblay, appealed a superior court decision that rescinded a professional liability policy issued by Plaintiff Great American Insurance Company (GAIC), to the law firm of Christy & Tessier, P.A. Robert Christy (Christy) and Thomas Tessier (Tessier) were partners in the firm, practicing together for over forty-five years. In 1987, Frederick Jakobiec, M.D. (Jakobiec) retained Tessier to draft a will for him. In 2001, Jakobiec's mother, Beatrice Jakobiec (Beatrice), died intestate. Her two heirs were Jakobiec and his brother, Thaddeus Jakobiec (Thaddeus). Jakobiec asked Tessier, who was Beatrice's nephew, to handle the probate administration for his mother's estate. From 2002 through 2005, Tessier created false affidavits and powers of attorney, which he used to gain unauthorized access to estate accounts and assets belonging to Jakobiec and Thaddeus. Litigation ensued; two months after Tessier and Jakobiec entered into the settlement agreement, Christy executed a renewal application for professional liability coverage on behalf of the law firm. Question 6(a) on the renewal application asked: "After inquiry, is any lawyer aware of any claim, incident, act, error or omission in the last year that could result in a professional liability claim against any attorney of the Firm or a predecessor firm?" Christy's answer on behalf of the firm was "No." The trial court found that Christy's negative answer to the question in the renewal application was false "since Tessier at least knew of Dr. Jakobiec's claim against him in 2006." On appeal, the defendants argued that rescission was improper because: (1) Christy's answer to question 6(a) on the renewal application was objectively true; (2) rescission of the policy or denial of coverage would be substantially unfair to Christy and the other innocent insureds who neither knew nor could have known of Tessier's fraud; and (3) the alleged misrepresentation was made on a renewal application as opposed to an initial policy application. GAIC argued that rescission as to all insureds is the sole appropriate remedy given the material misrepresentations in the law firm's renewal application. Upon review, the Supreme Court held that the trial court erred as a matter of law in ruling that Tessier's knowledge is imputed to Christy and the other defendants thereby voiding the policy ab initio. The Court made no ruling, however, as to whether any of the defendants' conduct would result in non-coverage under the policy and remanded for further proceedings. View "Great American Insurance Company v. Christy" on Justia Law