2008-759, COLONY INSURANCE COMPANY v. DOVER INDOOR CLIMBING GYM & a.

The plaintiff, Colony Insurance Company (Colony), appeals

no brief. Shaheen & Gordon, P.A., of Dover, for defendant Richard Bigelow, filed

orally), for defendant Dover Indoor Climbing Gym. Mallory & Friedman, PLLC, of Concord (Mark L. Mallory on the brief and

orally), for the plaintiff. Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. COLONY INSURANCE COMPANY

No. 2008-759 editorial errors in order that corrections may be made before the opinion goes Rockingham Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 indemnify the gym.

p. 2 to obtain a release from Bigelow absolved Colony of any duty to defend or Colony filed a petition for declaratory judgment, arguing that the gym’s failure on notice to defend and pay any verdict obtained by Bigelow. In response, 2 most favorable to the non-moving party.

this court to decide. waiver requirement.

as a matter of law, the grant of summary judgment is proper.

climbing, Bigelow fell and sustained serious injuries. The gym then put Colony summary judgment. This appeal followed. motion for summary judgment, and granted the defendants’ cross-motion for consider the evidence, and all inferences properly drawn from it, in the light (2003). We construe the language of an insurance policy as would a

The interpretation of insurance policy language is a question of law for gym is not entitled to coverage because it had actual knowledge of the policy’s law to the facts de novo. Everitt, 156 N.H. at 209; Sintros, 148 N.H. at 480. at 209; Sintros, 148 N.H. at 480. We review the trial court’s application of the

genuine issue of material fact, and if the moving party is entitled to judgment 202, 208 (2007); Sintros v. Hamon, 148 N.H. 478, 480 (2002). If there is no

climbers if they had waivers on file and received no negative answers. It is endorsement provision ambiguous. The trial court therefore denied Colony’s In reviewing the trial court’s grant or denial of summary judgment, we waiver; the gym owner’s affidavit stated that the owner asked the group of

Alternatively, Colony argues that even if the endorsement is ambiguous, the waiver from Bigelow renders the policy inapplicable as to his claims. “Failure to conform to this warranty will render this policy null and void as [endorsement was ambiguous, and contends that the gym’s failure to obtain a On appeal, Colony argues that the trial court erred in finding that the

Colony’s failure to provide the gym with a sample waiver rendered the but did not sign a waiver. He testified that he was never asked to sign a which the trial court addressed in a written order. The trial court found that Both Colony and the defendants filed motions for summary judgment,

in your favor prior to engaging in any ‘climbing activity.’” It further stated: stated: “All ‘participants’ shall be required to sign a waiver or release of liability effect from January 5, 2007, to January 5, 2008. An endorsement to the policy

On August 14, 2007, Bigelow accompanied friends to the climbing gym,

those claims brought against you.”

issued a commercial general liability insurance policy to the gym, which was in The trial court found, or the record supports, the following facts. Colony argues that the policy language is unambiguous. We agree with Colony.

p. 3 of whether it actually obtained waivers from climbing participants. Colony coverage exists so long as the gym has a policy of requiring waivers regardless interpretation, the gym argues, a reasonable person would believe that

opposed to mandating that the gym obtain signed waivers. Under this

because it states that participants shall “be required” to sign waivers as sample waiver form, but, rather, that the exclusionary language is ambiguous actually enforced its waiver policy. A reasonable person reading the policy endorsement creates an ambiguity by its failure to provide the insured with a

would lead to the absurd result of requiring coverage even if the gym never result for the wrong reasons.” Thus, the gym does not argue that the

actually obtain waivers from climbing participants. The gym’s interpretation Even the gym, however, contends that the trial court “reached the correct

The clear meaning of the policy language is that the gym is required to ambiguous because Colony did not provide the gym with a sample waiver.

exists rests squarely with the insurer.

The trial court found that the endorsement requiring waivers is

Mut. Ins. Co., 142 N.H. 144, 147 (1997); Curtis, 132 N.H. at 342. coverage where it is clear that none was intended. Hudson v. Farm Family ambiguity” simply to construe the policy against the insurer and create clear and unambiguous policy language.” not perform amazing feats of linguistic gymnastics to find a purported the insurer. Id. Where, however, the policy language is clear, this court “will the language favors the policyholder, the ambiguity will be construed against maintains that it is not. The burden of proving that no insurance coverage definitions. Int’l Surplus, 140 N.H. at 20. If one of the reasonable meanings of and construe the words used according to their plain, ordinary, and popular we will look to the claimed ambiguity, consider it in its appropriate context, limited to the words of the policy. Shield, 120 N.H. 764, 771 (1980). In determining whether an ambiguity exists, Merchants Mut. Ins. Co., 140 N.H. 15, 20 (1995); Trombly v. Blue Cross/Blue two interpretations of the language. Int’l Surplus Lines Ins. Co. v. Mfgs. & exists if “reasonable disagreement between contracting parties” leads to at least

right to contractually limit the extent of its liability, it must do so “through 132 N.H. 337, 340 (1989); see RSA 491:22-a (1997). Although an insurer has a

In this case, the gym argues that the policy is ambiguous and Colony

and unambiguous; absent ambiguity, our search for the parties’ intent is examine the parties’ reasonable expectations of coverage when a policy is clear accord the language its natural and ordinary meaning. Id. We need not objectively, and where the terms of a policy are clear and unambiguous, we casual reading of the policy as a whole. Id. Policy terms are construed reasonable person in the position of the insured based upon a more than p. 4 4

this case. that a reasonable insured would understand that the exclusion would apply in intended. We therefore conclude that the policy language is unambiguous and

that Colony is entitled to summary judgment as a matter of law. trial court granting the defendants’ motion for summary judgment, and hold

the insurer here would create coverage where it is clear that none was

address Colony’s remaining argument. We therefore reverse the order of the

BRODERICK, C.J., and DALIANIS, J., concurred.

would “inevitably lead to absurd results”). To construe the exclusion against

alternative interpretation that renders policy language ambiguous. the policy inapplicable to his claims. In light of our holding, we need not participants, the failure to do so in the case of Bigelow renders coverage under Because the policy requires the gym to obtain waivers from all

132 N.H. at 3 p. 4 42 (refusing to find ambiguity when alternate interpretations

interpretation is unreasonably narrow, and is therefore not the type of would not understand that coverage existed in such circumstances. The gym’s