2012-088, Great American Dining, Inc. v. Philadelphia Indemnity Insurance Company

Prior to renting the building, DW Ray required Webster Place to obtain an Ray) ow ned and leased a building to Webster Place Center, Inc. (Webster Place). The trial court found the following facts. DW Ray Commons, LLC (DW

under a policy issued by Philadelphia. We affirm. the petitioner, Great American Dining, Inc. (GAD), i s an additional insured (Philadelphia), appeals an or der of the Superior Court (Smukler, J.) finding that LYNN, J. The respondent, Philadelphia Indemnity Insurance Company

Caroline K. Delaney on the brief, and Ms. Delaney orally), for the respondent. Morrison Mahoney, LLP, of Manchester (Edwin F. Landers, Jr. and

Connor on the brief and orally), for the petitioner. Primmer, Piper, Eggleston & Cramer, PC, of Manchester (Doreen F.

No. 2012 - 088 Merrimack

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, Concor d, 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 p. 2 22 as 2

insurance policy language. Pro Con Constr. v. Acadia Ins. Co., 147 N.H. 470, ( p. 2 2008) (quotation omitted). Our analysis begins with an examination of the contracting parties.” Bates v. Phenix Mut. Fire Ins. Co., 156 N.H. 719, 722 goal of interpreting an insurance policy . . . is to carry out the intent of the U. S. Fidelity & Guaranty Co., 136 N.H. 463, 466 (1992). “The fundamental insurer bears the burden of establishing lack of coverage. M. Mooney Corp. v. In an action for declaratory judgment under RSA 491:22 - a (2010), the

followed. the contribution action as well as attorney’s fees and costs. This appeal awarded GAD reimbursement for defense costs and the judgment rendered in that Philadelphia owe d it a duty both to defend and to indemnify, t he court lease [d] premises.” Having determined that GAD i s an additional insured and entered establish that GAD’s liability arose from its ‘maintenance’ of the t hat “the trial evidence and the theory upon which the judgment was actually maintenance. As to Phila delphia’s duty to indemnify GAD, the court conclude d case because Dr. Wyly’s pleadings sufficiently allege d that GAD engaged in court found that Philadelphia owe d GAD a duty of defend ing the contribution “aris[es] out of ownership, maintenance or use” of the leased premises. The because the provision applies to “any person or organization” whose liability provision of the policy titled “Managers, Lan dlords or Lessors of Premises” T he trial court de termined that GAD is an additional insured under a

action against Philadelphia to determine coverage. costs and attorney ’ s fees pursuant to RSA 491: p. 2 22 - b (2010) for bringing the incurred in the action for contribution, the judgment rendered against it, and Philadelphia, and, as such, entitled to r eimbursement for defense costs court to find that it i s an additional insured under Webster Place’ s policy with GAD then filed the present declaratory judgment action, asking the trial

Wyly’s injur ies. maintained the porch railing. A jur y found that GAD was 45% at fault for Dr. for contribution on the theory t hat GAD negligently constructed, installed, and Philadelphia, Webster Place and DW Ray settled with Dr. W yly and sued GAD D W Ray w as an additional insured under Webster Place’s policy with Webster Place for damages. After the Superior Court issued a declaration t h at porch railing and suffered serious injuries. Dr. Wyly sued D W Ray and In October p. 2 2008, Dr. James Kenneth Wyly fell through the building’s

Place] . . . .” maintenance or use of that part of the premises leased or r ented to [Webster organization with respect to their liability arising out of the ownership, that contained a provision listing as an additional insured “[a]ny person or Webster Place obtained from Philad elphia a commercial general liability pol icy insurance policy listing DW Ray as an additional insured. In March p. 2 2008, p. 3 3

landlords and lessors because, notwithstanding its heading, the provision The trial court found that P rovision 2f covers more than just managers,

This insurance does not apply to

additional exclusion s: premises leased or rented to you subj ect to the following out of the ownership, maintenance or use of that part of the person or organization with respect to their liability arising f. Managers, Landlords, or Lessors of Premises – Any

2. Ea ch of the following is also an insured:

additional insured endorsement that provides: T he policy language at iss ue here, Provision 2f, is the portion of the

ambiguities, therefore, need not be construed in its favor. p remises leased to Webster Place; and ( p. 3 3) GAD was a stranger to the policy and GAD’s liability did not aris e out of “the ownership, maintenance or use” of the insured because it was not a manager, landlord, or lessor of the premises; (2) On appeal, Philadelphia argues that: (1) GAD was not an additional

& McCarthy, 160 N.H. 1 12, 115 (2010). (1999). We review questions of law de novo. In the Matter of Taber - McCarthy law for the court to decide. Allstate Ins. Co. v. Armstrong, 144 N.H. 170, 172 T he interpretation of an insurance policy, like any contract, is an issue of

(quotation omitted). insurer.” Brickley v. Progressive N. Ins. Co., 160 N.H. 625, 627 (2010) coverage, the policy contains an ambiguity and will be construed against the than one reasonable interpretation is possible, and an interpretation provides Malpractice Joint Underwriting Assoc., 1 p. 3 37 N.H. 680, 683 (1993). “If more omitted). This is an objective standard. Concord Hosp. v. N.H. Medical whole.” Deyette v. Liberty Mut. Ins. Co., 1 p. 4 42 N.H. 560, 561 (1997) (quotation position of the insured based on more than a casu al reading of the policy as a “and we construe the terms of the policy as would a reasonable person in the context, Concord Gen. Mut. Ins. Co. v. Mitchell, 138 N.H. 229, 231 (1994), 472 (2002). We look to t he plain and ordinary meaning of the policy ’ s words in 4

Id. (citation omitted).

and examine the various provisions the m selves. Accordingly, w e disregard the labels attached to the. . . policies

the provisions of a “claims made” policy. provisions into the term. The i n surance company must spell out “claims made” refers to and cannot be expected to read crucial as such. The layperson of average intelligence does not know what can make these policies “claims made” or induce us to treat the m certain provisions; without those prov i sions, no amount of labelling they are. “Claims made” is a category of policies that contain [The policies] are not “claims made” simply because they say

before the policies lapsed. they were, in fact, “claims made,” in that claims had to have been reported “claims made” label to the policies’ various provisions to determine whether insuran ce company du r ing the policy period.” Id. at 683. We looked past the described as “afford [ing] coverage for tort claims that [we] re. . . reported to the Hosp., 137 N.H. at 682. The policies w ere labeled “claims made,” which we which the hospital did not file claims until a fter the polic ies lapsed. Concord hospital reported to the insur er two days before the polic ies lapsed, but for malpractice insurance policies covered certain occurrences that the insured policy as a whole. I n Concord Hosp ital, we addressed whether several medi cal misapplied Concord Hosp ital: c onsistent wit h that case, the court read the As an initial matter, we disagree with Philadelphia that the court

provisions themselves.” disregard the labels attached to . . . policies and examine the various court relied on Concord Hos p ital, 137 N.H. at 683, which stat es that “we In rul ing tha t Provision 2f applies more broadly than its caption suggests, the

of the provision controls. “managers, landlords, and lessors” provision, the broader language supervisor s. Because Philadelphia did not similarly draft the indicating a clear intent to limit coverage only to managers and included in the heading and in the language [of P rovision 2b], Importantly, the terms “managers and supervisors” are both

managers and supervisors.” (Emphasis added.) The court reasoned: “managers and supervisors . . . , but only with respect to their duties as your contrasted Provision 2f with Provision 2b, which defines as additional insureds arising out of the ownership, maintenance or use of the premises. The court broadly encompasses any person or organization with respect to its liability p. 5 5

reliance on captions. The general l iability endorsement, which lists the various Initially, we observe that the policy itself attempts to prevent over -

organization,” as stated in its text. Landlords, or Lessors of Premises” or, more broadly, to “[a]ny person or we address whether Provision 2f applies, as its caption suggests, to “Managers, Mindful of the se principle s, and reading the policy at issue as a whole,

direct conflict with other portions of the policy.” courts to disregard insurance policy captions, terms or words if they are in the scope of the holding in Concord Hosp ital extends to only allowing ana lyzing of North America, 137 N.H. p. 5 57, 59 (1993). W e disagree with Philadelphia “that also Maville v. Peerless Ins. Co., 141 N.H. 317, 319 (1996); Raudonis v. Ins. Co. N.H. at 397; Concord Hosp., 137 N.H. at 682 - 83; Atwood, 116 N.H. at 637; see whole and from the vantage point of an ordinary person. Hanover Ins. Co., 119 proposition that, when construing an insurance policy, we mu st read it as a Concord Hosp ital, At wood, and Hanover Ins urance Co. stand for the

Id. policy as a whole w ould not expect coverage for the type of accident at issue. and informative captions. W e concluded that a reasonable person reading the pol icy as a whole, emphasizing its clear and unambiguous language and simple Id. at 639. I n Hanover Insurance Co., 119 N.H. at 397, w e also considered the concluded that the policy did not afford the insured fair notice of the exclusion. hundred twenty - nine words. Id. at 638. Based on all these factors, we insurer to indemnify the insured appeared i n a sente nce numbering one Atwood, 116 N.H. at 637 - 39. We also noted that the language obligating the coverage, whereas th e relevant exclusion was buried among thirteen other s. exclusion, and the fact th at o ne part of the policy contained four indications of confusingly redundant headings in the policy, obscure phrasing of the size and inconspicuous location of the provision extending coverage, Atwood, we considered w hether the policy provided coverage by looking at the argu ing that we should read the caption of Provision 2f as control ling. I n Indemnity Co., 116 N.H. 636 (1976), two cases on which Philadelphia relies in Co. v. Grondin, 119 N.H. 394, 397 (1979), and Atwood v. Hartford Accident & Similarly, we read insurance polic ies as a whole in Hanover Ins urance

reported while the policy was still in effect. Id. at p. 6 68 7. made after the policy had expired, as long as the underlying occurrences were although titled “claims made,” the policies in fact offered coverage for claims (quotation omitted). Reading the policies as a whole, we concluded that, company first receives written notice of the claim or occurrence.” Id. at 6 84 provision stated that “[a] claim shall be considered to be first made when the had to have been first made while the policies were s till in force, a fourth Even though three provisions in the policies stated that covered claims 6

employees are also i nsured, “b ut only for acts within the scope of their respect to their duties as trustees.” The insured’s v olunteer workers and respect to their liability as stockholders”; and the insured’s trustees “only with duties as . .. managers”; the stockholders of an insured organization “only with conduct of [the LLC’s] business”; the LLC’s managers “only with respect to their [the] business”; the members of an insured LLC “only with respect to the partnership or joint venture are covered “only with respect to the conduct of of which [he or she is] the sole owner”; the members and partners of a n insured A n insured individual is covered “only with respect to the conduct of a business drafted Section II of the policy to limit coverage for various types of insured s. The policy is replete with limiting language. For example, Philadelphia

limitation. provision of the additional insured endorsement does the caption act as a out of the ownership, maintenance or use” of the premises, because in no other lessors,” but “any person or organization wit h respect to their liability arising interpretation is that Provision 2f cover s not only “managers, landlords, or MacLearn v. Commerce Ins. Co., 1 p. 6 63 N.H. 241, 244 (2012). One such ambiguo us because “more than one reasonable interpretation is possible.” Construing the language of the policy as a whole, we find Provision 2f

(emphasis added). 13 Appleman, Insurance Law and Practice § 7387, at 1 p. 6 6 8 - 71 (revised ed. 1976)

requirements of the coverage in the policy. policy, they should not be repugnant or misleading as to the are not required to be drawn so as to touch on every element of the itself. While captions in a policy are not insuring provisions and confusing, may control over less liberal provisions in the policy better rule is that a caption, at least where misleading, or provision of a policy may be explained by its caption. And the effect to the heading and clause together. But an ambiguous construction can reasonably be found which gives an harmonious wrong words in heading a clause in the policy if another of the parties. Nor should the parties be deemed to have chosen read in connection with such clauses in determining the intention shown by the provisions and clauses inserted therein, but may be themselves, be taken to ove rride the intention of the parties as construed with the detailed provisions. The captions will not, of In addition the captions of a policy are a part of it, and should be Captions must be construed together with the provisions following them.

complete details on specific coverages, consult the policy co ntract wording.” Insurance and additional coverages provided by the endorsement. For provisions’ captions, also states: “The following is a summary of the Limits on p. 7 7

person or organization under your direct supervision and control e. Home Care Providers – At the first Named Insured’s option, any

person or organization. construction and demolition operations performed by or for that This insurance does not apply to structural alterations, new

occupy these premises. (2) Premises they own, maintain or control while you lease or

(1) Their financial control of you; or

their liability arising out of: d. Funding Source – Any pers on or organization with respect to

exhaustion of its limits of insurance. insured under another similar policy, but for its termination or the named in the Declarations as Named Insured, if they are also cover age does not apply to any organization or subsidiary not thereof which you control and actively manage . . . . However, c. Broadened Named Insured – Any organization and subsidiary

as your managers and supervisors. supervisors are also insureds, but only with respect to their duties than a partnership or joint ventu re, your managers and b. Managers and Supervisors – If you are an organization other

treatment of a patient. professional services of any physician or psychiatrist in the duties do not include the furnishing or failure to furnish scope of and during the course of their duties as such. Such directors and administrators, but only while acting within the a. Medical Directors and Administrators – Your medical

2. Each of the following is also an insured:

deemed additional insureds con sists of a caption and text. Each of the eight provisions describing the types of entities and individuals The additional insured endorsement also contains numerous limitations.

business. employment or performing duties related to the conduct of the insured’s members are covered only for bodily injury incurred in the course o f business.” The insured ’s employees, volunteer workers, partners, and employment. . . or while performing duties related to the conduct of. . . p. 8 8

reach by setting forth the type s of organization s covered by the provision. such. The text of Provision 2c, titled “Broadened Named Insured,” limits its managers and supervisors are covered only with respect to their duties as restrictions on the types of duties covered. Provision 2b specifies that and during the course of their duties as such” and subject to furt her administrators, but, as the text specifies, “only while acting within the scope of Similarly, Provision 2a extends coverage to medical directors and insured or of the ownership, maintena nce, or control of the leased premises. Provision 2d limit s coverage t o liability arising out of the financial control of the the caption. For example, despite its expansive caption “Funding Source,” Provision 2f, each prov ision’s limitations are set forth in the text rather than either repeated or echoed in the provisions’ text. Wi th the e xception of Unlike Provision 2f, the captions of Provisions 2a, 2b, 2e, 2g, and 2h are

the following additional provision . . . . granting you a permit in co nnection with your premises subject to h. Grantors of Permits – Any state or political subdivision

equipment leased to you by such person or organization.. . . whole or in part, by your maintenance, operation or use of “property damage” or “personal and advertising injury” caused, in an insured only with respect to liability for “bodily injury”, additional insured on your policy. Such person or organization is agreement that such person or organization is to be added as an person or organizatio n have agreed in writing in a contract or organization from whom you lease equipment when you and such Required in Lease Agreement With You – Any person or g. Lessor of Leased Equipment – Automatic Status When

organization. ope rations performed by or on behalf of that person or (2) Structural alterations, new construction or demolition

a tenant in that premises. (1) Any “occurrence” which takes place after you cease to be

This insurance does not apply to

or rented to you subject to the following additional exclusions: ownership, maintenance or use of that part of the premises lea sed organization with respect to their liability arising out of the f. Managers, Landlords, or Lessors of Premises – Any person or

the developmentally disabled. while providing for you private ho me respite or foster home care for p. 9 9

any individual operating the vehicle with the owner’s consent, s ee RSA 264:18, than do provisions in a motor vehicle insuranc e policy extending coverage to maintenance, or use of the leased premises leads no more to an absurd result any person or organization whose liability arises out of the ownership, cap acity on the pr operty.” First, a broad reading of Provision 2f as covering plowers, exterminators, and “‘any’ person or organization that worked in any to the policy, such as contractors, electricians, plumber s, carpenters, snow lead to an absurd result by extending coverage to individuals who are strangers Nor are we persuaded that the trial court’s reading of Provision 2f wo uld

the property.” coverage to only those with “involvement in the ownership or management of leased premises, Philadelphia cannot now argue that it intended to limit coverage to “liability arising out of the ownership, maintena nce or use” of the Co., 140 N.H. 641, 643 (1 p. 9 996) (quotation omitted). But h aving extended clear and unambiguous policy language.” Weeks v. St. Paul Fire & Marine Ins. property.” “A n insurance company remains free to limit its liability through contractor with no involvement in the ownership or management of the additional insured status to any independent construction or maintenance landlords, or lessors,” “would lead to the absurd result of improperly extending coverage to “any person or organization,” rather than only “managers, We reject Philadelphia’s argument that reading Provision 2f as extending

undertaken as managers, landlords, or lessors as they did in Provision 2b. Provisions 2a, 2b, and 2e. N or did th e y limit Provision 2f to the duties the text of Provision 2f reference to the caption as they did, for example, in lessors. T he parties to the policy were clearly able, but opted not to, include in operations. None o f these limitations reference s managers, landlords, or leased premises and further excludes some types of occurrences and coverage to liability arising out of the ownership, maintenance, or use of the cover age. Provision 2f itself contains several limitation s in its text: it limits additional insured endorsement, the parties inserted numerous limitati ons on are known by the company they keep”). T hroughout the policy and the Pump Co., 163 N.H. 727, 734 (2012) (applying “the basic principle that words Libr. Ed. §5.03[1], at 5 - 31 (Dec. 2010); c f. Phaneuf Funeral Home v. Little Giant in order to better understand a provision’s meaning.” New Appleman on Ins. L. we must interpret Provision 2f “consider [ing] how the policy provisions interact Consistent with Conco rd Hospital, Atwood, and Hanover Ins urance Co.,

narrow the provisions’ captions. providers, lessors of leased equipment, and grantors of permits, significantly Similarly, the text of Provisions 2e, 2g, and 2h, which apply to home care p. 10 10

intent to w rongfully deprive the owner of his property therein. unauthorized. This provision, however, shall not apply to the use of a vehicle converted with the damages arises has been expressly or impliedly forbidden by the insured or is otherwise insured with his express or implied consent ev en though the use in the course of which liability to pay VI. The insurance applies to any person who has obtained possession or control of the vehicle of the . . . not be contained therein: A motor vehicle liability po licy . . . shall be subject . . . to the following provisions which need RSA 264:18, VI states: 1

rule reflects the fundamental principle of contract law that doubtful language N.H. 764, 771 (1980) (adopting the majority rule of constru ction because “[t]his provide protection for the insured.” Trombly v. Blue Cross/Blue Shield, 120 insurer controls the language of the policy and the insurance contract aims “to established rul e is equally as strong in such a situation as in any other: the addressing who is an insured under the policy. The rationale for our firmly construction, which would not construe ambiguities against the insurer when are ambiguous, how to construe them. We decline to adopt a new rule of before us is who is an insured under the terms of the policy a nd, where terms stranger to the policy. This is a circular argument because the very question contends that ambiguous terms must not be construed in favor of GAD, a construed against the insure r and in favor of the insured, Philadelphia Although it does not challenge the rule that ambiguities must be

that the trial court improperly construed ambiguities in favor of GAD. Ins. Co. of America, 164 N.H. 80, 84 (2012). We r eject Philadelphia’s argument policy in the insured ’ s favor and against the insurer. Barking Dog v. C itizens and one reasonable interpretation favors coverage, however, we construe the person or organization.” When an insurance policy ’ s language is ambiguous Premises,” serves to narrow the provision’s b road language referencing “[a] ny policy, i.e., that the caption of Provision 2f, “Managers, Landlords, or Lessors of We acknowledge that Philadelphia offers a plausible construction of the

the text. caption of Provision 2f does not act as a limitation on the coverage set forth in foregoing reasons, w e find that a reasonable insured could conclude that the organization” is specifically limited by the terms of the provision. For all the ‘originating from or gr owing out of or flowing from.’”). Th us, “any person or (1995) (“The phrase ‘arising out of’ has been interpreted as. . . meaning premises. See Merrimack Sch ool Dist. v. Nat ’l School Bus Serv., 140 N.H. 9, 13 liability arises out of the ownership, maintenance, or use of the leased Second, Provision 2f covers only those persons and organizations w hose

VI (2004), when such individual would also be a “stranger to the policy.” 1 p. 11 11

residents, dentists, ost eopathic or medical doctors."). "as physicians in the direct treatment of patients" and does not cover employees who are "interns, externs, against a variety of liability claims" and specifically excludes coverage for certain administrators when acting whole, the policy covers more than medical malpractice where it states that it was designed " to protect Cf. Weeks, 140 N.H. at 644 (although “professional services” were not defined in the policy, when read as a 2

De p ’ t of Labor, 331 S.W.3d 654, 657 (Mo. 20 p. 11 11), is entirely inapposite as it did when distinguishing between maintenance and renovation, Utility Service v. include “renovation.” Furthermore, t he only case which Philadelphia cites overlapping definitions, “maintenance” may reasonably be understood to act of repairin g the co v ered automobile”). Given the variety of these ‘ maintenance ’ aspect of the ‘ownership, maintenance, or use’ clause covers the § 119:36, at 119 - 54 (1997) (in the context of automobile insurance, “[t] he broken.” Id. at 1055; c f. 8A L. Russ & T. Segalla, Couch on Insurance 3d part, as “restor[ing] by replacing a part or putting together what is torn or Webster’s Collegiate Dic tionary 1054 (11th ed. 200 3). “R epair” is defined, in to a former better state (as by cleaning, repairing, or rebuilding).” Merriam - Black’s Law Dictionary 1039 (9th ed. 2009). “R enovation” means “restor[ation] property to keep it operating and productive; general repair and upkeep.” repair. “Maintenance” is defined, in part, as “[t]he care and work put into overlapping, with r enovation in that both activities include the concept of d ictionaries define maintenance as potentially coextensive, or at least renovation based upon definitions set forth in certain dictionaries, but other policy as a whole. Philadelphia argu es that maintenance differs from 2 explained, how we should construe the term “maintenance” wh en reading the omitted). Our review of the policy does not reveal, and Philadelphia has not ordinarily intelligent insured.” Weeks, 140 N.H. at 644 (quotation and ellipses in the light of what a more than casual rea ding of the policy would reveal to an disputed terms are not defined in the policy, we construe them in context, and The policy does not defin e “maintenance” or “renovation.” “Where

condition (or status quo).” maintenance, which only involves taking ste ps to keep or preserve the existing making it like new again – which is an entirely different concept from r enovation “connotes an action of restoring property to a good condition or maintenanc e and the two terms are not synonymous. Philadelphia argues that because GAD’s work on the porch railing constituted renovation rather than Next, Philadelphia contends that Provision 2f does not cover GAD

quotation omitted)). providing coverage for the beneficiaries of the Trust . . . .” (citation and term. Because the policy language is ambiguous, we construe it in favo r of insured . . . clearly falls within the realm of ambiguity as we have defined that A.2d 253, 256 - 57 (Vt. 2009) (“[T]he naming of the Trust as an additional contract” (quotation omitted)); cf. Northern Sec. I ns. Co., Inc. v. Doherty, 987 is to be construed most strongly against the party who us ed it in drafting the p. 12 12

inspected by DW [Ray], or at its direction.” In his claim against Webster Place, writ, “[t]he railing that failed to protect [him] was installed, modified and/or fashion and in compliance with the building code. As Dr. Wyly alleged in the contractor, breached its duty to install or renovate the railing in a workmanlike Dr. Wyly alleged that DW Ray, e i ther directly or through an independent

covered under the policy.”). complaint against the insured contains alleg a tions that, if proved, would be 200 - 5 (2007) (“An insurer will have a duty to defend the insured in a suit if the premises. See 14 L. Russ & T. Segalla, Couch on Insurance 3d § 200:1, at turn, can be reasonably read as alleging that GAD maintained t he leased and Webster Place are entitled to contribution from GAD. Dr. Wyly’s claims, in employees and that, having settled Dr. Wyly’s personal injury claims, DW Ray Wyly’s claims for negligence flow dire ctly from the a ctions of GAD and its In their writ s against GAD, DW Ray and Webster Place alleged that Dr.

omitted; emphasis added). N. Sec. Ins. Co. v. Connors, 161 N.H. 645, 650 (2011) (quotation and citations

must be resolved in the insured ’ s favor. insured alleges a liability of the insurer under the polic y, the doubt to defend. In cases of doubt as to whether the writ against the underlying writ can justify escape of the insurer from its obligation inferred, and neither ambiguity nor inconsistency in the intendment of the pleadings, liability of the insured c an be declarations, but also in cases where, by any reasonable insurer’ s obligation is not merely to defend in cases of perfect expectations of the insured as to its rights under the policy. An the sufficiency of the pleadings, we consider th e reasonable policy. In considering whether a duty to defend exists based on facts in the pleadings to bring it within the express terms of the whether the cause of action against the insured alleges sufficient An insurer’ s obligation to defend its insured is deter mined by

contribution actions brought by DW Ray and Webster Place. We also agree that Philadelphia owe d GAD a duty to defend it against the

is an additional insu red under Philadelphia’s policy. constituted maintenance of the railing, we agree with the trial cour t that GAD premises, and because, read broadly, GAD’s renovation of the porch railing to their liability arising out of the ownership, maintenance or use” of the Because Provision 2f applies to “[a]ny person or organization with respect

“maintenance work” and “construction.” not concern an insurance contract, but rather a statute which defined both p. 13 13

potentially suppo rt a covered claim is all that is needed to invoke the insurer ’ s 2d Insurance § 684, at 746 (2003). “A plaintiff ’ s factual allegations that theory under which the judg ment is actually entered in the case.” 43 Am. Jur. “[T]he duty to indemnify depends on the facts established at trial and the

2 008). Sons Co. v. Travelers Cas. and Sur. Co., 591 F. Supp. 2d 651, 657 (S.D.N.Y. indemnify adher [es] only if the third party suit prov es meritorious.” Julio & 14 Couch on Insurance 3d, supra § 200: 3, at 200 - 9 to 200 - 10. “[T]he duty to

liab ility is established. duty to indemnify, which arises only when the insured's underlying defend must be assessed at the very outset of a case, unlike the the possibility or the potential of liability to indemnify, the duty to defend arises wheneve r an insurer ascertains facts that give rise to conclusively determined. In other words, because the duty to contrast, the duty to i n demnify arises only once liability has been before the scope of the insured ’ s liability has been determined. In therefore insurers are requ ired to meet their defense obligation The duty to defend arises prior to the completion of litigation, and indemnify is based upon the time when the duties are determined. The distinction between the duty to defend and the duty to

Couch on Insu rance 3d, supra § 200:1, at 200 - 6. duty to d e fend is distinct from, and broader than, the duty to indemnify.” 14 owe d GAD a duty to indemnif y. “[T] he majority of jurisdictions hold that the The record also supports the trial court’s conclusion that Philadelphia

Philadelphia owe d GAD a duty to defend. insurer and in favor of coverage. Id. The trial court properly ruled that defend.” N. Sec. Ins. Co., 161 N.H. at 650. We resolve any doubt against the under lying complaint can justify escape of the insurer from its obligation to inconsistently throughout the writ, “neither ambiguity nor inconsistency in the T o the extent that the term “renovation” is used ambiguously or

710 (2008). N. Sec. Ins. Co., 161 N.H. at 650; State Farm Ins. Co. v. Bruns, 156 N.H. 708, renovated the railing and failed to correct obvious hazards such as t he railing. Webst er Place’s workmen negligently installed, modified, inspected, and/or an independent contractor, an entity working at DW Ray’s direction, and/or pleadings, [GAD’s] liability . . . can be inferr ed” from Dr. Wyly’s allegations that hazards, such as the railing.” “[B]y any reasonable intendment of the also describe d DW Ray’s and Webster Place’s duty as one “to correct obvious renovated. . . this rai ling . . . were competent to complete their work.” The writ Dr. Wyly alleged that it owed him “a duty to ensure that the workm[e] n who p. 14 14

New Hampshire law, the burden of proving that no insurance coverage exists is necessary because it is not the insured’s burden to establish coverage. “Under Julio & Sons Co., 591 F. Supp. 2d at 657. Such certainty, however, is not whether the jury actually found GAD liable for negligent maintenance. See functions relating to the premises. Thus, it cannot be said with certainty lay in its constru ction, operation, maintenance, or any combination of thes e w hether the jury’s general verdict amounted to a finding that GAD ’s negligence v. J.I. Case Co., 139 N.H. 193, 210 (1994). We note that i t is unclear as to “We assume that the jury follow s properly crafted ins tructions . . ..” Cyr

at fault for Dr. Wyly’s injuries. duty of due care . . . .” (Emphasis added.) The jury found that GAD was 45% did not construct, operate or maintain the premises in accordance with the the duty of reasonable care: “in other words, whether any of the par ties did or the jury to determine whether any of the parties, including GAD, had breached maintenance of the property.” (Emphasis added.) The c ourt also instructed care under all the circumstances in the construction, operation and GAD, w ere negligent, “to decide whether or not a party exercised reasonable cause of Dr. Wyly’s injury and, in determining whether the parties, including court instru cted the jury to find whether GAD’s legal fault contributed to the In Webster Place ’ s and DW Ray’s contribution action against GAD, t he

maintenance job . . . . that, painting, fitting out, finish work, mill work, as part of the contractor if it’s a major renovation. And then we finish some of someone to do the major construction, which is an outside or renovate a building[,] we generally have a pattern which we hire buildings and one of the extended components is[,] when we build [GAD] also ha[s] a maintenance division which maintains all the

the property. the property and until the accident, GAD performed maintenance and repair on not maintain the property. R ay testified that, from the time DW Ray acquired GAD. Ray’s testimony, however, does not support the conclusion that GAD did Philadelphia relies on the testimony of Alex Ray, the o wner of both DW Ray and the railing, involved new construction and renovation, not ‘maintenance.’” trial clearly established that GAD’s work at Webster P lace, including work on Philadelphia argues that “[t]he evidence presented at the contribution

Co. v. Koshy, 995 A.2d 651, 670 (Me. 2010). Laboratories, 883 F.2d 1092, 1099 (1st Cir. 1989); State Farm Mut. Auto. Ins. 630 F.3d 451, 459 (5th Cir. 2011); Travelers Ins. v. Waltham Indus. (quotation omitted); see also VRV Deve lopment L.P. v. Mid - Continent Cas. Co., control the duty to indemnify.” Julio & Sons Co., 591 F. Supp. 2d at 657 duty to defend, whereas, the facts actually established in the underlying suit p. 15 15

D ALIANIS, C.J.