2006-791, Farm Family Casualty Insurance Co. as Subrogee of Marc Janetos and Deborah Janetos v. Town of Rollinsford

The plaintiff, Farm Family Casualty Insurance

A. Duggan on the brief, and Mr. Mullen orally), for the defendant. Ransmeier & Spellman P.C., of Concord (Daniel J. Mullen and Stephen

brief and orally), for the plaintiff. Mittelholzer & Dibble, PLLC, of Newmarket (Stephen J. Dibble on the to press. Errors may be reported by E-mail at the following address:

FARM FAMILY CASUALTY INSURANCE COMPANY AS SUBROGEE OF MARC

editorial errors in order that corrections may be made before the opinion goes No. 2006-791 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Strafford Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as plaintiff. p. 2 and construe all reasonable inferences in the light most favorable to the

relief may be granted, we assume the truth of the facts alleged by the plaintiff

dismiss. Id. constitute a basis for legal relief, we will uphold the granting of a motion to

Paul v. Sherburne, 153 N.H. 747, 749 (2006). If the facts do not

In reviewing a motion to dismiss for failure to state a claim upon which B:2. Regarding the application of RSA 507-B:2, the trial court explained: maintenance or operation of all motor vehicles, and all premises,” RSA 507- to dismiss. This appeal followed. against municipalities only for injuries “arising out of ownership, occupation, Relying upon this determination, the trial court granted the defendant’s motion

plaintiff authority to pursue the present action. municipality. failure or decline”). Therefore, RSA 507-B:2 does not give the refers to premises owned, occupied, maintained, or operated by a “maintain” means “to keep in existing state” or “preserve from consistent with its context, the court finds the term “all premises” 1984)] (“occupy” means “to reside in as an owner or tenant,” and See Webster’s [New Collegiate Dictionary] at 804, 702 [(9th ed. as “occupation” or “maintenance” of the home under this statute. main structure of the home. home to extinguish the existing fire, this situation does not qualify fire]. While the fire department may have arrived at the Janetos’ operate the Janetos’ home or garage at any time on [the day of the plaintiff, the fire department did not own, occupy, maintain, or things, that it was protected by RSA 507-B:2 & :5 (1997), which allow suits Assuming the facts in the light most favorable to the

Family brought a negligence action against the town.

meaning of the term “all premises” and construing the term According to a plain and ordinary interpretation of the

damaged portion of the structure, and it destroyed both the garage and the The second fire was caused by the RFD’s failure to electrically isolate the RFD left the scene, an electrical fire broke out in a different part of the garage.

In the trial court, the town moved to dismiss, arguing, among other

made a claim on their policy, which Farm Family paid. As subrogee, Farm At the time of the fire, the Janetoses were insured by Farm Family. They

of the structure, contrary to applicable safety standards. Two hours after the restored electrical service, but did not electrically isolate the damaged portion second fire.

p. 3 “owned, occupied, maintained or operated” by governmental units. A more limitation upon the phrase “all premises,” narrowing that term to premises

the town may not be held liable for damages to the property resulting from the p. 3 “owned, occupied, maintained or operated” by the RFD and that, as a result, Janetoses’ property was never, at any time relevant to this action, a premise operation of . . . all premises.” By its plain language, the statute places a governmental units “arising out of ownership, occupation, maintenance or governmental unit. We disagree. RSA 507-B:2 allows certain suits against premises”; namely, those owned, occupied, maintained or operated by a

used in RSA 507-B:2 supports its position. We agree with the town that the

scope of RSA 507-B:2 by construing the phrase “all premises” to mean “some Farm Family first argues that the trial court impermissibly narrowed the runways and taxiways shall be limited as set forth in RSA 422. of any governmental unit with respect to publicly owned airport highways shall be limited as provided in RSA 231 and the liability

Each party argues that the plain and ordinary meaning of the words

possible, ascribe the plain and ordinary meanings to the words used. Id. by other statute.” RSA 507-B:5. It further provides: whole. Id. We first examine the language found in the statute, and, where legislature’s intent as expressed in the words of the statute considered as a Home Ins. Co., 154 N.H. 472, 479 (2006). We are the final arbiters of the is a question of law, which we review de novo. In the Matter of Liquidation of maintenance or operation” of the insureds’ property. Interpretation of a statute any governmental unit with respect to its sidewalks, streets, and the RFD alleged by Farm Family constitute “ownership, occupation, vehicles, and all premises; provided, however, that the liability of operation of . . . all premises” and our determination of whether the actions of of ownership, occupation, maintenance or operation of all motor construction of the statutory language “ownership, occupation, maintenance or damage caused by its fault or by fault attributable to it, arising out Both parties agree that resolution of this case turns upon our

RSA 507-B:2.

damage except as provided by this chapter or as is provided or may be provided liable in any action to recover for bodily injury, personal injury or property Supp. 2006). That chapter provides that “[n]o governmental unit shall be held

action to recover for bodily injury, personal injury or property A governmental unit may be held liable for damages in an

Family, the town was subject to liability under RSA chapter 507-B (1997 & The question before us is whether, based upon the facts pled by Farm p. 4 4

“occupation” rather than a meaning reflecting the fourth or fifth definitions. its definition of “personal injury,” that the legislature intended to convey a meaning akin to the third definition of from the definition of “occupancy,” the word it used earlier in chapter 507-B, in

on this point.

in RSA 507-B:2, that is, in conjunction with the term “ownership,” we conclude in RSA 507-B:2 plainly communicated an intent to convey a meaning different Moreover, based upon the context in which the term “occupation” is used

synonym for “occupation,” we are not persuaded by Farm Family’s argument Because the third dictionary definition quoted above lists “occupancy” as a which includes elements of the fourth and fifth definitions quoted above. “occupancy” than it tracks Farm Family’s preferred definition of “occupation,” a dictionary definition of “occupy” that more closely tracks the definition of Family argues that the trial court erred in defining “occupation” by referring to

According to Farm Family, the legislature’s use of the word “occupation”

holding possession of real property under a lease or tenancy at will.” Id. “Occupancy,” in turn, has the following relevant meaning: “the taking and Webster’s Third New International Dictionary 1560 (unabridged ed. 2002). town did not engage in “occupancy,” it did not engage in “occupation.” country by a foreign military force . . . . [usually] temporary holding and control of a country or a part of a taking possession of a place or area: SEIZURE . . . 5 a : the place or area: TENURE . . . p. 4 4 : the act or process of occupying or OCCUPANCY, TENANCY . . . b : the possession or settlement of a 3 a : the actual possession and use of real estate (as by lease):

components: regarding the trial court’s construction of the phrase “all premises.” The common definition of “occupation” includes the following relevant occupy, maintain or operate. Accordingly, we reject Farm Family’s argument ownership, occupation, maintenance or operation of premises it does not own, equating “occupation” with “occupancy” and then determining that because the insureds’ property in order to fight the fire there; and (2) the trial court erred by meaning of the term encompasses the RFD’s seizure and control of the statutory requirement of “occupation,” Farm Family argues that: (1) the plain RFD’s “occupation” and/or “operation” of that property. Regarding the insureds’ property, but argues that the damages in this case resulted from the Farm Family concedes that the town neither owned nor maintained the

impossible for a governmental unit to be liable for damages arising out of expansive reading of the phrase “all premises” makes little sense; it is logically what RSA 507-B:2 requires before liability may be imposed upon the town.

p. 5 speak of operation, not the operation execution.” Farm Family’s preferred definitions all lack a direct object; they

says nothing about whether the RFD was operating the property itself, which is

military or naval action, mission, or maneuver, including its planning and an exertion of power or influence; FUNCTIONING, WORKING” and including “a “operation” as “a doing or performing [especially] of action; WORK, DEED . . . within the meaning of RSA 507-B:2. It relies upon a dictionary definition of

operation of something are these: “the whole process of planning for and “operation” that appear in Webster’s Dictionary, the ones that pertain to the operation of. . . all premises.” (Emphasis added.) Of the definitions of suits against governmental units for certain damages “arising out of . . . meaningless, operations at, or operated firefighting equipment on, the insureds’ property of something. But RSA 507-B:2 allows as to render the limitation on liability provided by RSA 507-B:2 all but property. That may be, but the mere fact that the RFD conducted firefighting “operating at a fire,” RSA 154:7, II (2002), and operating on the insureds’

part of the act or process of seizing it from them. power to the property, their actions constituted “operation” of the property Farm Family further argues that when RFD personnel restored electrical

construction based upon the fourth or fifth definitions would be so expansive of the property by the RFD. that when the RFD was putting out the fire in the Janetoses’ garage, it was Farm Family has failed to state a claim for damages arising out of occupation Regarding the statutory requirement of “operation,” Farm Family argues that the town had the actual use or possession of the insureds’ real estate,

part of the act or process of preparing the property for the insureds’ return, not electrical power without isolating the damaged portion of the structure – was alleged fall outside the definition; the RFD’s assertedly negligent act – restoring occupying or taking possession of a place or area,” the facts Farm Family has expressed in the fourth definition quoted above, i.e., “the act or process of Finally, even if the legislature did intend a meaning akin to that

term “occupation” captures the intent of the legislature, we believe, because a a municipal fire department with an invading army. Our construction of the transitory presence. We are also unpersuaded by Farm Family’s comparison of Because Farm Family has alleged no facts which, if proven, would demonstrate temporarily controls in order to perform a police or firefighting function. municipal liability to virtually any property a police officer or firefighter to an appreciable extent, the purpose of the statute.”), and would extend 12 (2006) (“The legislature will not be presumed to pass an act . . . nullifying,

see Weare Land Use Assoc. v. Town of Weare, 153 N.H. 510, 511-

situation such as lease or rental of a property, rather than a seizure or a brief, That is, by “occupation,” the legislature intended to denote an ownership-like p. 6 6

“operation,” the RFD did not operate the insureds’ property. the insureds’ property in action. Thus, under a proper construction of the term for or operating the insureds’ home as an organized unit, or put or maintained

proven, would establish that the RFD engaged in the whole process of planning

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

manner contemplated by the statute. There are no facts alleged which, if alleged by Farm Family rise to the level of “operating” the property in the power to the insureds’ property. But neither those acts nor any other acts facts alleged by Farm Family, RFD personnel cut off and restored electrical Webster’s Third New International Dictionary, supra at 1581. Here, on the [operation] of a motor car 〉 〈 problems in the [operation] of a railroad 〉.” maintaining in action of something (as a machine or an industry) 〈 careful household 〉 〈 the [operation] of a steel mill 〉. . . the operating of or putting and operating a business or other organized unit 〈 the [operation] of a large