2010-152, Northern Security Insurance Company v. Michael Connors & a.

No. 2010-152

Rockingham

(Northern Security), appeals an order of the Superior Court (McHugh CONBOY, J. The petitioner, Northern Security Insurance Company Brennan, Caron, Lenehan & Iacopino

Wiggin & Nourie, P.A., J.), Kenna & Sharkey, P.A.

Reid. Estate of Jack F. Reid, Sr., Jay Klos, James Reid, Laurie Zic, and Catherine and Jaye L. Rancourt on the brief, and Ms. Rancourt orally), for respondents

orally), for respondent Michael Connors.

Burt on the brief, and Mr. Burt orally), for the petitioner.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as policy issued by Northern Security. Section II of the policy provides defense p. 2 At all relevant times, Connors was covered by a homeowner’s insurance

request to use his property. that he had no knowledge of the murder plan, and that he denied Brooks’s State for conspiracy to commit murder, that in three criminal trials he testified harm Reid. Connors argued to the trial court that he was never indicted by the agreed to let Brooks use his property, or that Connors was aware of the plot to Connors knew the contents of the package he received from Brooks, that he murder. The trial court also noted that the plaintiffs do not allege that that the plaintiffs agree that Connors was not on the property the day of the “evidence of either subjective or objective intent to do harm to Reid.” It noted The trial court found that as to Connors the writ does not contain

property . . . .”

herein named defendants, be allowed to use Defendant Connors’ “Defendant Brooks requested from Defendant Connors that he, and other Deerfield, New Hampshire, Defendant Connors’s residence at that time”; (3) hand cuffs, and/or pepper spray via [F]ederal [E]xpress to 145 North Road, conspiracy, Defendant Brooks forwarded a package containing a stun gun, them [sic] that the package contained steak knives”; (2) “In furtherance of the anyone asked, Defendant Connors was instructed by Defendant Brooks to tell Connors and informed him that he would be sending him a package and that if regarding Connors: (1) “Defendant Brooks spoke with Defendant Michael negligent infliction of emotional distress. The writ alleges the following facts conspiracy, wrongful death, intentional infliction of emotional distress, and The writ identifies four causes of action against Connors: civil

Benton killed him by striking him in the head and chest with a blunt object. for a non-existent job. Once Reid arrived, Brooks, Knight, Vrooman, and On June 27, 2005, Reid was lured to Michael Connors’ residence in Deerfield Brooks believed Reid, a handy man for hire, stole personal property from him. and Jesse Brooks conspired to trap, torture, and kill Reid, reportedly because The writ alleges that over a two-year period, Brooks, Knight, Benton, Vrooman, Knight, Michael Benton, Joseph Vrooman, Jesse Brooks, and Michael Connors. individual family members; the defendants are John Brooks (Brooks), Robin are also respondents in the instant action, are Reid’s estate and several case involves the 2005 murder of Jack F. Reid. The plaintiffs in that case, who The trial court found the following facts. The civil suit that underlies this

We affirm. pending in Rockingham County Superior Court, Reid v. Brooks, No. 08-C-543. Northern Security has a duty to defend respondent Connors in a civil lawsuit summary judgment of respondent Michael Connors. The trial court ruled that denying its motion for summary judgment and granting the cross-motion for estate and family members constitute damages for Reid’s wrongful death. p. 3 murder Reid, thus precluding coverage; and (4) the damages sought by the imprisonment is inextricably intertwined with an overall intentional plan to civil conspiracy require non-covered intentional conduct; (3) any claim of false meet the policy’s definition of an “accident” or “occurrence,” as the elements of conspiracy to commit false imprisonment; (2) the alleged conduct does not endorsement for false imprisonment claims is not triggered by a claim for civil On appeal, Northern Security argues that: (1) the personal injury

any non-covered alleged acts. policy, and (2) the covered alleged acts were not inextricably intertwined with conspiracy to commit false imprisonment were acts covered by Connors’s policy,” it found that (1) negligent infliction of emotional distress and that “[t]he parties generally agree that intentional acts are not covered by the obligation to defend Connors on two claims. While the trial court recognized court ruled in favor of Connors, concluding that Northern Security has an Following the filing of cross-motions for summary judgment, the trial

physical abuse exclusion.” does not constitute an ‘occurrence,’ and the acts are excluded by the policy’s brief, “Northern denied coverage because the conduct attributed to Connors Exclusions do not apply to personal injury.” As stated in Northern Security’s The enhancement amendment also contains the following sentence: “Section II

3. Invasion of privacy, wrongful eviction or wrongful entry.

2. Libel, slander or defamation of character, or

prosecution;

1. False arrest, detention or imprisonment, or malicious injury arising out of one or more of the following offenses: 3

“bodily injury” to include “personal injury.” “Personal injury” is defined as: Amendment” (enhancement amendment), which expands the definition of Connors’s policy also includes a “Homeowners Coverage Enhancement

corporal punishment, or physical or mental abuse (physical abuse exclusion). insured (intentional acts exclusion), or that arises out of sexual molestation, not cover bodily injury or property damage that is expected or intended by the A provision entitled “Section II-Exclusion” provides that the policy does

period in: a) ‘bodily injury’; or b) ‘property damage.’” elsewhere in the policy as: “[a]n accident . . . which results, during the policy by an ‘occurrence’ to which this coverage applies.” An “occurrence” is defined an ‘insured’ for damages because of ‘bodily injury’ or ‘property damage’ caused and indemnity to an insured “[i]f a claim is made or a suit is brought against p. 4 4

to bring it within the express terms of the policy.” State Farm Ins. Co. v. “the cause of action against the insured alleges sufficient facts in the pleadings insured’s favor. Id. liability of the insurer under the policy, the doubt must be resolved in the An insurer’s obligation to defend its insured is determined by whether Id. In cases of doubt as to whether the writ against the insured alleges a underlying writ can justify escape of the insurer from its obligation to defend. insured can be inferred, and neither ambiguity nor inconsistency in the cases where, by any reasonable intendment of the pleadings, liability of the obligation is not merely to defend in cases of perfect declarations, but also in expectations of the insured as to its rights under the policy. Id. An insurer’s exists based on the sufficiency of the pleadings, we consider the reasonable Bruns, 156 N.H. 708, 710 (2008). In considering whether a duty to defend

proving lack of insurance coverage is on the insurer. about its meaning. Id. Pursuant to RSA p. 4 491:22-a (2010), the burden of Interpretation of an insurance policy is a question of law. Philbrick v. Liberty considered clear and unambiguous, two parties cannot reasonably disagree clear and unambiguous policy language. Id Resolution of this dispute requires us to interpret the insurance policy.. For exclusionary language to be insurance company is free to limit its liability through an exclusion written in insurer. Id. Absent a statutory provision or public policy to the contrary, an coverage, the policy will be construed in favor of the insured and against the susceptible to more than one interpretation and one interpretation favors natural and ordinary meaning. Id. at 391. However, if the policy is reasonably in the light most favorable to the non-moving party. Big League Entm’t v. Brox the terms of the policy are clear and unambiguous, we accord the language its the affidavits and other evidence, and all inferences properly drawn from them, based upon a more than casual reading of the policy as a whole. Id. Where insurance policy as would a reasonable person in the position of the insured In reviewing the trial court’s grant of summary judgment, we consider Mut. Fire Ins. Co., 156 N.H. 389, 390 (2007). We construe the language of an

review the trial court’s application of the law to the facts de novo. Id. as a matter of law, we will affirm the grant of summary judgment. Id. We genuine issue of material fact, and if the moving party is entitled to judgment Indus., 1 p. 4 49 N.H. 480, 482 (2003). If our review of that evidence discloses no

finding of coverage. must be construed in favor of coverage, we should uphold the trial court’s precludes coverage for intentional acts. They argue that because ambiguities claims of false imprisonment, an intentional tort, while the underlying policy enhancement amendment creates an ambiguity because it purports to cover Connors and the other respondents disagree and argue that the occurrence are all distinguishable. See p. 5 petitioner for the proposition that a conspiracy does not constitute an Bruns expectations of the insured in determining whether a duty to defend exists. 5

Philbrick, 156 N.H. at 391. personal injury offenses, we must construe that ambiguity in favor of coverage. creates an ambiguity when applied to claims arising out of the enumerated policy’s definition of an occurrence as an “accident,” a term itself undefined, acts exclusion, as is the case here. Further, to the extent that in this case, the endorsement that covered the underlying offense and limited the intentional listed in the enhancement amendment. Moreover, the cases cited by the Fibreboard, 20 Cal. Rptr. 2d at 387. None involved a personal injury does not apply the intentional acts exclusion to the personal injury offenses specifically ruled that the underlying offense was not covered by the policy, see commit false imprisonment. We disagree. We consider the reasonable accident.” This argument is unavailing because, as discussed above, the policy at 1301; West Virginia Fire & Cas. Co., 602 S.E.2d at 495, or the court imprisonment, there is no coverage for his alleged role in a civil conspiracy to conspiracy tort means that it cannot, because of its very essence, be an Farm Fire and Cas. Co., 585 F. Supp. 2d at 729; Fire Ins. Exchange, 953 P.2d Security argues that because Connors did not personally commit false claims were governed by an intentional acts exclusion provision, see Northern Security also argues that “[t]he intentional nature of the State no cause of action for false imprisonment is alleged as to Connors. Co. v. Stanley, 602 S.E.2d 483, 495 (W.Va. 2004). In these cases, either the Northern endorsement for false imprisonment claims was not properly triggered” because Bentley, 953 P.2d 1297, 1301 (Colo. Ct. App. 1998); West Virginia Fire & Cas. and Indem. Northern Security argues, however, that “the personal injury, 20 Cal. Rptr. 2d 376, 387 (Ct. App. 1993); Fire Ins. Exchange v. Weaver, 585 F. Supp. 2d 722, 729 (D. S.C. 2008); Fibreboard v. Hartford Acc.

duty to defend the civil conspiracy claim.”). there is a duty to defend the underlying wrong . . . there is a corresponding Transcontinental Ins. Co., 78 F. Supp. 2d 320, 331-32 (D. Del. 1999) (“Because false imprisonment claims. conspiracy to commit false imprisonment. See Capano Management Co. v. excludes expected or intended bodily injury from coverage does not apply to that if there is coverage for false imprisonment, there is also coverage for Exclusions do not apply to personal injury.” Therefore, the provision that, 156 N.H. at 710. We conclude that an insured would reasonably expect were expected or intended; the amendment specifically states that “Section II amendment, regardless of whether the injuries arising out of those offenses

argument that coverage is provided for the offenses enumerated in the amendment covers false imprisonment claims. Its counsel agreed at oral Northern Security concedes that the policy with the enhancement p. 6 Bruns

judgment must be denied. claims may be separated, a duty to defend may exist and summary

Citing Auto-Owners Insurance Co. v. Todd

the insured, which the parties agreed was to perpetrate a sexual assault. Id the claims, or where it is clear that the covered and uncovered. Instead, it held that the analysis should turn on the overall intentional plan of acts of the insured which could be isolated from the assaults. Id. at 699. Court rejected the suggestion that the false imprisonment claim was based on and after the final assault. Todd, 547 N.W.2d at 697. The Minnesota Supreme several hours and had kept the victim in bed with him between the assaults the insured had sexually assaulted the victim three times over the course of plan of the insured to determine coverage. p. 6 Bruns, 156 N.H. at 715. In Todd, 1996), we established in Bruns that a court must look to the overall intentional

upon the uncovered sexual assault claims.” Id. at 717-18. and the claims as alleged were “inextricably intertwined with and dependent In p. 6 Bruns however, there is a genuine dispute as to the interconnectedness of we held that “any false imprisonment . . . is the result of the sexual abuse,” of uncovered acts, an insurer will not be required to defend. If, alleged sexual assaults and grooming. Id inextricably intertwined with and dependent upon the commission. at 717. Under these circumstances, brainwashing” of the minor plaintiff, which we interpreted as a reference to the allegedly included “psychological and emotional imprisonment and alleged was sexual abuse. Id. at 717-18. The invasion of privacy count of the victim and “prior conduct,” but we noted that the only prior conduct alleged that the false imprisonment was the result of the insured’s “grooming” inextricably linked to the sexual assaults. Id. at 718. The plaintiff in that case We held that the false imprisonment and invasion of privacy counts were things, sexual assault, false imprisonment and invasion of privacy. Id. at 709.

, the writ against the insured alleged counts for, among other

should be analyzed separately from the civil conspiracy count. interconnectedness of the claim for negligent infliction of emotional distress [w]here the facts reveal that potentially covered acts are inextricably intertwined. We note that the parties do not argue that the a dispute as to whether the covered claims and the uncovered claims were , 156 N.H. at 716. Here, the trial court concluded that there was at least

no coverage. In p. 6 Bruns, we stated the rule that: of emotional distress are inextricably linked to Reid’s murder, for which there is alleged conspiracy to falsely imprison Reid and the claim for negligent infliction Northern Security further argues that coverage is excluded because the the insured’s favor.” Id p. 7 alleges a liability of the insurer under the policy, the doubt must be resolved in “In cases of doubt as to whether the complaint against the insured

evidence does not permit the court to determine whether a claim is part of or if the interconnectedness of the insured’s conduct is disputed and if the

wrongful death allegations. any factual assertions connecting Connors’s conduct and the uncovered conspiracy. Connors’s overall intentional plan is unclear, and the writ lacks Connors’s actions were inextricably intertwined with the alleged murder These facts do not support a conclusion, as a matter of law, that

the policy language with the facts Connors’s property. that Brooks asked Connors if Brooks and the other defendants could use We believe this case requires a similar result. “[A] court must compare package, which contained a stun gun, handcuffs, and/or pepper spray; and (3) asked, to say that it contained steak knives; (2) that Brooks sent Connors a told Connors he was sending him a package and instructed him, if anyone above, the facts pled in the writ concerning Connors are few: (1) that Brooks imprison, terrorize, assault, batter, and cause the death of Reid. As stated allegation that Connors’s conduct was in furtherance of a conspiracy to falsely Accordingly, we consider the facts as pled, and not the writ’s conclusory uses to frame the suit is relatively unimportant.” Bruns, 156 N.H. at 713. falls within the express terms of the policy; the legal nomenclature the plaintiff

lacks any clear evidence of connectedness.” Id. basis for differentiating between the two events, especially since the complaint displacement does not automatically imply narrative disjunction, it provides a assault and battery.” Id. The court concluded, “Though temporal distinct, preceding incident that did not necessarily have to result in [the] original false imprisonment,” and characterized the false imprisonment as “a repeatedly discussed the assault as a separate event later in time than the 7 p. 8 84. The court of appeals reversed, noting in particular that “the complaint inherently intertwined with an uncovered assault and battery count. Id. at district court found that the covered count of false imprisonment was events took place over a thirty-five to forty-minute time span.” Id. at 780. The three separate times.” First Specialty Ins., 300 Fed. Appx. at 784. “These her down a flight of stairs, and then tried to rape and sexually assault her in a building hallway, forced her to enter an empty, locked stairwell, dragged in a building owned by the insured. The security guard “detained [the victim] case, the victim was approached by a security guard employed by the insured Insurance v. 633 Partners, Ltd., 300 Fed. Appx. 777 (11th Cir. 2008). In that imprisonment claim were separable from a sexual assault in First Specialty The Eleventh Circuit, in contrast, determined that the facts of a false 8

DALIANIS, C.J.