2016-0390, Massachusetts Bay Insurance Company v. American Healthcare Services Association & a.

Inc. and Megan C. Carrier on the brief, and Mr. Shirley orally), for Exeter Hospital, Sheehan Phinney Bass & Green, PA, of Manchester (James Q. Shirley

orally), for Triage Staffing, Inc. Mallory & Friedman, PLLC, of Concord (Mark L. Mallory on the brief and

Schiller orally), for Arch Specialty Insurance Company. P ennsylvania (Ronald P. Schiller and Daniel J. Layden on the brief, and Mr. on the brief), and Hangley Aronchick Segal Pudlin & Schiller, of Philadelphia, Preti Flaherty Beliveau & Pachios, PLLP, of Concord (William C. Saturley

AMERICAN HEALTHCARE SERVICES ASSOCIATION & a.

No. 2016 - 0390 Rockingham

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

insuranc e. insurance, professional liability insurance, and comprehensive general liability hospitals and to maintain certain minimum coverage of employers’ liability workers. Additionally, Triage agreed to indemnify AHSA and AHSA member Exeter, and to screen the qualifications and competence of those temporary agreed to provide temporary workers to AHSA member hospitals, such as In p. 2 2008, Triage and AHSA entered into a staffing agreement. Triage

named insured, and to Ex eter and AHSA, as additional insured s. extent the policies that Arch issued to Triage provide coverage to Triage, as a primarily insures AHSA. This appeal chiefly concerns whether and to what primarily insures Exeter; and Massachusetts Bay Insurance Company (MBIC) company: Arch primarily insures Triage; Hanover Insurance Com pany Triage, Exeter, and AHSA each carry insurance through a different insurance Exeter, and AHSA. Some of those suits have settled, while others have not. In the wake of Kwiatkowski’s actions, the Exeter P atients sued T riage,

country. Pursuant to these contracts, Triage placed Kwiatkowski at Exeter. staffing company that places medical personnel in medical facilities across the people in the healthcare industry. Exeter and AHSA contracted with Triage, a Hepatitis C. Exete r is a member of AHSA, a company that accredits and grades were used in the treatment of numerous patients, some of who m contracted drugs, returned the contaminated needles to the hospital’s supply, where they diverted opio i d drugs to his own use and, after injecting himself with such was infected with the Hepatitis C virus. While working at Exeter, Kwiatkowski conduct of David Kwiatkowski, a cardiac catheter laboratory technician who procedure in some detail. The perti nent facts of this case arise from the I n light of the arguments raised, it is important to state the facts and

part, and remand. occurrences under the policies. We affirm in part, reverse in part, vacate in insurance polic ies and in determining that the claims involved mu ltiple that the trial court erred in finding inapplicable certain exclusions found in the Exeter who contracted Hepatitis C (Exeter Patients). On appeal, Arch argu es Arch iss ued to Triage, for claims asserted against the defendants by patients of indemnify Triage, Exeter, and AHSA, pursuant to two insurance policies that summary judgment. The court ruled that Arch is requi red to defend and petitions for declaratory judgment, and denying Arch’s cross - motion for Inc. (Exeter), and American Healthcare Services Association (AHSA) on their summary judgment to defendants Triage Staffing, Inc. (Triage), Exeter Hospital, multiple orders of the S uperior C ourt (McHugh and Anderson, JJ.), granting LYNN, J. D efe ndant Arch Specialty Insurance Company (Arch) appeals p. 3 3

Exeter’s insurer, Hanover Insurance Company, is not a party to this action. 1

Triage, Exeter, and AHSA. The Exeter Patients filed a counterclaim for claims for declaratory judgment that Arch owed no duty to defend or indemnify the primary insurer responsible for defense and indemnity of AHSA and cross indemnity. Arch filed a counterclaim for decl aratory judgment that MBIC was for declaratory judgment that Arch was required to provide them a defense and under the Arch and MBIC policies. Triage and Exeter each filed a cross - claim 1 a declaratory judgment to determine the scope of coverage available to AHSA MBIC initiated the present action in February 201 p. 3 3 when it petitioned for

RSA chapter p. 3 358 - A (2009 & Supp. 2016). for willful or knowing violation of the New Hampshire Consumer Protection Act, Kwiatkowski; for negligent or intentional infliction of emotional distress; and medical negligence; for negligent ly hiring, employing, training, and su pervising in hiring, employing, training, and s upervising him. They sued Exeter for the doctrine of respond eat superior, as well as for its alleged direct negligence The Exeter P atients su ed Triage for Kwiatkowski’s actions based up on

saline syringes, some of them became infected. with the virus. When the Exeter Patients were subsequently injected with the Kwiatkowski was infected with Hepatitis C, these saline syringes were tainted contaminated syringes with saline to cover the diversions. Because himself with fentanyl from diverted syringes, Kwiatkowski refilled the now containing fentanyl for syringes that he had filled with saline. After injecting approximately 50 occasions, prior to a me dical procedure, he swapped syringes federal criminal charges, Kwiatkowski admitted in f ederal court that, on nor authorized to administer the drugs. In connection with his plea of guilty to secure machine. Kwiatkowski was neither authorized to access the machine preparation for a procedure, n urses and physicians remove the drugs from a procedures, patients are often administered t wo drugs: fentanyl and versed. I n catheterization lab, where patients undergo invasive procedures. As part of the During his time at Exeter, Kwiatkowski worked in the cardiac

leave on May 21, 2012, and subsequently terminated him on June 29, 2012. cont inued to work for Exeter until the hospital placed him on administrative Kwiatkowski, at which point he ceased to be a Triage employee. Kwiatkowski Exeter Hospital on April 1, 2011. On or about October 1 6, 2011, Exeter hired Pursuant to the AHSA staffing agreement, Triage pla ced Kwiatkowski at

li ability, which covers both professional and general liability. different coverage forms: professional liability; general liability; and umbrella for the coverage periods, the policies are identical. Each policy includes three policy providing coverage from January 1, 2012, to January 1, 201 p. 3 3. Except providing coverage from January 1, 2011, to January 1, 2012, and a second To that end, Triage purchased two relevant polic i es from Arch: one policy p. 4 4

standing. In June 2013, the trial court dismissed the Exeter Patients’ cross - claim against Arch for lack of 2

because the court’s orders did not finally resolve all issues among all parties. court. We d ismissed Arch’s appeal as an improper interlocutory appeal In July 201 p. 4 4, Arch appealed the trial court ’ s coverage rulings to this

reexamination at the close of discovery. professional services” did not bar coverage, with the ruling subject t o that the Arch policies’ general liability coverage form exclusion for “healthcare acts” did not bar coverage based up on Kwiatkowski’s conduct; and (3) ruled the Arch policies’ exclusion for “dishonest, fraudu lent, malicious, uninsurable policies nor the MBIC policies were in excess of the other’s policies; (2) ruled 201 p. 4 4, the trial court: (1) reaffirmed its prior ruling that neither the Arch Exeter, MBIC, and Arch a ll filed motions for reconsideration. In June

coverage to AHSA. policies and MBIC’s policies equally provide d primary, rather than excess, coverage form provided coverage to both Exeter and AHSA; and (6) Arch’s under both the 2011 and 2012 Arch policies; (5) the Arch policies’ umbrella occurrences under the Arch policies; ( p. 4 4) the underlying acts were cover ed general liability coverage form; (3) the underlying acts constitute d multiple liability coverage form; (2) the underlying acts trigger ed the Arch policies’ determined under the professional liability coverage form, n ot the general judicially estopped from asserting that coverage under its policies should be denied Exeter ’s motion and issued an order ruling that: (1) Arch was not was required to share Exeter’s defe nse costs with Arch. In May 2014, the court Exeter moved for reconsideration of the trial court’s ruling that MBIC

seek reimbursement of defense costs at the close of the litigation. with MBIC to Exeter’s past and future defense costs, subject to Arch’s right to at the close of discovery. The second order required Arch to contribute equally coverage based up on Exeter’s conduct, with the ruling subject to reexamination exclusion for “dishonest, fraudulent, malicious, uninsurable acts” did not bar trial court issued two orders. In the first order, it ruled that the Arch policies’ exclusion for “a buse or molestation” did not bar coverage. In April 201 p. 4 4, the January 2014, the trial court issued an order rul ing that the Arch policies’ objections, and responses, all of which led to a series of trial court orders. In motions for partial summary judgment, cross - motions for summary judgment, Thereafter, the parties filed numerous motions for summary judg ment,

coverage to Triage, Exeter, and AHSA. 2 and a cross - claim for declaratory judgment that Arch was obligated to provide declaratory judgment that MBIC was obligated to provide coverage to AHSA p. 5 5

AHSA, MBIC, and the Exeter Patients are not participat ing in this appeal. 3

(citations omitted). “Such language must be so clear, however, as to create no Progressive N. Ins. Co. v. Concord Gen. Mut. Ins. Co., 1 p. 5 51 N.H. 649, 653 (2005) through use of a policy exclusion, provided it violates no statutory provision.” “Insurers are free to contractu ally limit the extent of their liability

(quotation omitted). “This is an objective standard.” Id. (quotation omitted). insured based on more than a casual reading of the policy as a whole.” Id. the terms of the policy as would a reasonable person in the position of the plain and ordinary meaning of the policy’s words in context, and we construe review questions of law de novo.” Id. (quotation omitted). “We first look to the court to decide.” Cogswell Farm, 167 N.H. at 2 48 (quotation omitted). “We “The interpretation of insurance policy language is a question of law for this Inc., 167 N.H. 24 p. 5 5, 248 (2015) (quotation omitted); see RSA 491:22 - a (2010). which party brings the petition.” Cogswell Farm Condo. Ass’n v. Tower Group, insurance policy, the burden of proof is always on the insurer, regardless of “In a declaratory judgment action to determine the coverage of an

(quotation omitted). review the trial court’s application of the law to the facts de novo.” Id. will affirm the grant of summar y judgment.” Id. (quotation omitted). “We fact and if the moving party is entitled to judgment as a matter of law, then we omitted). “If our review of that evidence discloses no genuine issue of material matter of law.” Conant v. O’Meara, 167 N.H. 644, 648 (201 p. 5 5) (quotation exists, we determine whether the moving party is entitled to judgment as a its capacity as the nonmoving party and, if no genuine issue of material fact judgment, w e “consider the evidence in the light most favorable to each party in In reviewing a trial court’s rulings on cross - mo tions for summary

Exeter’s defense costs. it now asks us to consider the issue of Arch’s obligation to contribute to the policies. Additionally, although Exeter did not file a notice of cross - appeal, form; and (3) the underlying actions constitute only a single occur rence under coverage form; (2) two exclusions barred coverage under the umbrella coverage Exeter because: (1) three exclusions barred coverage under the general liability that the trial court erred by granting summary ju dgment in favor of Triage and Arch subsequently filed the present appeal. On appeal, Arch argues 3

and reasonable attorney ’ s fees from Arch pursuant to RSA 491:22 - b (2010). Exeter, and AHSA w ere the prevailing parties, they were entitled to their costs accordance with its prior orders. The court also ruled that, because Triage, summary judgment against Arch and in favor of Triage, Exeter, and AHSA in In May 201 p. 6 6, the trial court issued an order finalizing its grant of 6

Neither Triage nor Exeter argue s that the Exeter Patients did not allege “bodily injury.” 5 In addition to raising their own arguments, Exeter and Triage each join in the other’s arguments. 4

with Hepatitis C) that resulted from a medical procedure (their injection with in this case: the Exe ter Patients ’ claims allege a bodily injury (their infection provision of medical services. That is precisely the type of ha rm that occurred harm for which coverage is excluded: bodily injury that results from the which Triage provided the medical services. The exclusion sets forth a type of and Exeter’s interpretations, the exclusion is not restricted to situations in regardless of whether Triage performed those services. Contrary to Triage’s alleges bodily injury that results from the provision of medical services, t he healthcare professional services exclusion plainly applies to any claim that According the words their plain and ordinary meanings, we conclude that

connection with [the foregoing] services.” dispensing of food, beverages, medications or medical supplies or appliances in similar ‘health care profe ssional services’ or treatments” and “[p] roviding or to include, as relevant: “Medical, surgical, dental, x - ray, nursing, mental, or professional services.’” Th e policy defines “Health care professional services” 5 damage’ that result [s] from the performance of or failure to perform ‘health care insurance does not apply to any claim that alleges “‘ B odily injury’ or ‘property T he healthcare professional services exclusion provides that the

Triage performed medical services. 4 Triage’s coverage; thus, it contends, the exclusion applies to Exeter only if exclusion does not apply. Exeter argues that its own coverage is derivative of supervised Kwiatk owski, but not that Triage performed medical services, the that because the Exeter Patient s allege that Triage negligently hired and damage resulted from medical services that it performed. Thus, Triage argues medical services. Triage argues that the exclusion only bars coverage if provision of medical services, regardless of whether Triage per formed those exclusion bars coverage for claims that allege damage resulting from the the general liability coverage form excludes coverage. Arch contends that the Arch first argues that the “health care professional services” exclusion in

coverage ... bears the burden of proving that the exclusion applies.” Id. it to mean.” Id. (quotation omitted). “The insurer asser ting an exclusion of interpret exclus ion language to mean what a reasonable person would construe reasonably differ about the interpretation of the language.” Id. “Ultimately, we (quotation omitted). “Policy terms create an ambiguity when the parties may words used according to their plain, ordinary, and popular definitions.” Id. the claimed ambiguity, consider it in its appropriate context, and construe th e (quotation omitted). “In determining whether an ambiguity exists, we look to ambiguity that might affect the insured’s reasonable expectations.” Id. p. 7 7

‘suit’ is brought. b. S eparately to each insured against whom ‘claim’ is made or

a. A s if each Named Insured w ere the only Named Insured; and

Insured, this insurance applies: duties specifically assigned in this endorsement to the first Named Except with respect to the L imits of Insurance, and any rights or

a n endorsement that affects all three of the insurance coverage forms, provides: in bodily injury. The separation of insureds clause, which is contained within exclusion to apply only when Triage performs the medical services that resulted clause in the pol icy meaningless, and, therefore, we must interpret the healthcare professional services exclusion render s the “separation of insureds” Exeter and Triage next argue that the above interpretation of the

upon its applicability. the health care professional services is a relevant consideration that bears exclusion contains no language indicating that who performs or fails to perform the performance or failure to perform health care professional services; the which coverage is excluded — bodily injury or property damage resulting from intended.”). As discussed above, the exclusion sets fo rth a type of harm for policy against the insurer and create coverage where it is clear that none was linguistic gymnastics to find a purported ambiguity simply to construe the (Whe n “policy language is clear, this court will not perform amazing feats of Colony Ins. Co. v. Dover Indoor Climbing Gym, 158 N.H. 628, 630 - 31 (2009) T r ombly v. Blue Cross/Blue Shield, 120 N.H. p. 7 764, 770 - 71 (1980); see also manipulate the exclusion ’s language in an effort to create an ambiguity. See circumstances in which Triage itself performs the medical services. We will not exclusion’s language suggests in any way that the exclusion is limited to performs the medical services, it did not need to do so because no part of the have added language stating that the exclusion applies regardless of who from the performance of healthcare professional services. Although Arch could The provision plainly applies to any claim that alleges bodily injury that results We find no ambiguity in the healt hcare professional services exclusion.

failure to do so makes the exclusion ambiguous. exclusion applies regardless of who per forms the medical services and that its favor of coverage. They contend that Arch could have spec ified that the performs the medical services, and that the ambiguity must be construed in services exclusion is ambiguous as to whether it applies only when Triage Triage and Exeter alternatively argue that the healthcare professional

Patients ’ claims. exclusion bars coverage under the general li ability coverage form for the Exeter tainted medication). Accordingly, the healthcare professional services p. 8 8

put, i f a claim alleges bodily injury that resulted from the prov ision of medical insured,” “any insured,” or even by a person who is not an insured. Simply It does not matter if the medical services were provided by “the insured,” “an services, without regard for whether an insured provided the medical services. of claims that allege bodily injury that results from the provision of medical services exclusion. Instead, the exclusion is plainly written to exclude coverage insured,” and “any insured” are not at issue in the healthcare professional However, as Triage acknowledges, the phrases “the insured,” “an

innocent insure d based on the conduct of a co - insured). that applied based on the conduct of “any insured” barred coverage to an severability of insurance clause would be rendered meaningless if an exclusion Ins. Co. v. Marnell, 4 p. 9 96 N.E.2d 15 p. 8 8, 16 1 (Mass. 1986) (holding that a ambiguity which must be construed in favor of coverage”), and Worcester Mut. conjunction with a severability ... clause like the one at issue here, creates an that “an exclusion of coverage for the intentional acts of ‘an insured,’ read in Minkler v. Safeco Ins. Co. of Am erica, 232 P. 3d 612, 614 (Cal. 2010) (holding coverage” even if the policy contains a separation of insureds clause), with holding that “such language has a collective effect and bars all insureds from meaningful difference between the terms “an insured” and “any insured,” and Companies v. Woodward, 45 A.3d 89, 94 (Vt. 2012) (noting that there is no rendered a separation of insureds clause meaningless), and Co - ope rative Ins. innocent co - insured” and rejecting the argument that this interpretation contractual intent to create joint obligations and to prohibit recovery by an that the phrase “any insured” in an exclusion “unambiguously expresse [d] a v. Am erican Family Mut. Ins. Co., 788 P.2d 748, 751 - 52 (Colo. 1990) (holding joint obligations and to prohibit recovery by an innocent co - insured”), Chacon has been consi stently interpreted as expressing a contractual intent to create a separation of insureds clause and holding that “[t]he language ‘any insured’ coverage took the action. Compare i d. at 721 (interpreting a policy containing while other courts apply the exclusion only if the insured who is seeking action, some courts apply the exclusion when any one insured took the action, that coverage is excluded if “an insured” or “any insured” takes a specific the other hand, a policy containing a separation of insureds clause provides coverage to innocent insureds based up on the conduct of a co - insured). If, on obligations be several rather than joint,” such an exclusion does not bar phrase “the insured” in an exclusion “evidences [an] intention that the policy containin g a separation of insureds clause and holding that, because the Hampshire Ins. Co., 716 F. Supp. 718, 720 - 21 (D. Conn. 1989) (interpreting a determine if the exclusion applies. See McCauley Enterprises v. New who is seeking coverage, rather than the conduct of the other insured s, to “the insured” takes a specific action, courts look at the cond uct of the insured containing a separation of insureds clause provides that coverage is excluded if “separation of insureds” or “severability of insur ance” clause. If a policy contain the phrases “the insured,” “an insure d,” and “any insured” in light of a Triage points to numerous cases that interpret insurance exclusion s that 9

separation of insureds provision located within an endorsement modifying the policy. between the effect of a separation of insureds provision located withi n a policy and the effect of a A reasonable person in the position of the insured would not expect any substantive difference an endorseme nt ‘modifying’ the policy forms.” We find this to be a distinction without a difference. provisions in those cases did not appear “in a specifically named ‘Separation of Insureds’ clause in Triage argues that these cases are “not useful precedent” because the separation of insureds 6 Ins. Co. v. Bruns, 156 N.H. 708, 713 (2008) (reasoning that the scope of a that the negligence claims were excluded. Id. at 763 - 64; see also State Farm assault, which was excluded by the assault and battery endorsement, we held Because the damages alleged against the insured arose entirely out of an endorsement that excluded coverage for assault and battery. Id. at 761 - 62. claim against the insured. Id. at 763. The insured’s policy contained an The administrator of the victim’s estate subsequently brought a negligence and fatally shoot another person. Preferred Nat’l Ins. Co., 14 p. 9 9 N.H. at 761. the insured used information that he obtained from the insured to trac k down Insurance Co. v. Docusearch, 149 N.H. 759 (2003). In that case, a customer of We previously rejected a similar argument in Preferred National

medical services. We disagree. resulted from negligent employment practices, not the negligent prov ision of that, for the purposes of the claims against Triage, the alleged bodily injury be predicated that controls whether the exclusion applies. Thus, they argue Triage argue that it is the nature of the claim up on which liability is sought to not allege damage that result ed from medical services. Essentially, Exeter and hired, employed, trained, and supervised Kwiatkowski because those claims do exclusion should not apply to the Exeter Patients’ claims that Tria ge negligent ly Exeter and Triage next argue that the healthcare professional services

coverage for conduct of “any insured” did apply). 6 based up on the conduct of a co - insured while a second exclusion that barred coverage for conduct of “the insured” did not apply to an innocent insured separation of insureds clause and holding that an exclusion that barred Enterprises, 716 F. Supp. at 720 - 21 (interpreting a policy containing a not meaningless becaus e it modified other exclu sions); see also McCauley that a separation of insureds clause which did not modify one exclusion was Inc. v. General Acc. Ins. Co., p. 9 937 F. Supp. 413, 422 - 23 (E.D. Pa. 1996) (finding affect the healthcare pro fessional services exclusion. See Michael Carbone, other exclusions, it is not rendered meaningless simply because it does not also “any insured.” Because the separation of insureds clause can affect these form contains other exclusions that apply based on conduct of “the insured” or insureds clause meaningless, as Triage argues. The general liability cover age Furthermore, this interpretation does not render the separation of

coverage form provides no coverage. Because that is precisely what occurred in this case, the general liability services, the general liability coverage form excludes coverage for that claim. p. 10 10

(emphasis added)). injuries and, therefore, no damage under the negligence claims absent the sexual m olestation.” whether the exclusion applies. See Philbrick, 156 N.H. at 393 (“Indeed, there would have be en no necessary contributors to produce the harm, we have employed the “but for” test to determine case. Rather, in cases in which both a covered cause and an excluded cause were claimed to be and Philbrick v. Liberty Mut. Fire Ins. Co., 156 N.H. 389 (2007) demonstrate that this is not the concurrent cause language. On the contrary, both Preferred Nat’l Ins. Co., 149 N.H. at 763 - 64 that the excluded cause can be effective to bar covera ge only if the exclusion contains anti not follow from the inapplicability of the efficient proximate cause doctrine in this circumstance 150 (citation omitted). But, contrary to what the Harleysville court appeared to assume, it does and none of the causes is sufficient by itself to cause the loss.” Harleysville, 561 F. Supp. 2 d at analysis does not apply in cases, such as this one, “in which there is more than one cause of loss 561 F. Supp. 2d 138 (D.N.H. 2008), on which Exeter and Triage rely, the efficient proximate cause the harm. As the court recognized in Amherst Country Club v. Harleysville Worcester Ins. Co., of producing the harm, which means that the excluded cause may have played no role in causing covered cause of harm and the excluded cause of harm each alone appears to have been capable In the foregoing cases, in which we applied the efficient proximate cause doctrine, the N.H. 117, 119 (1968). Insurance Co., 96 N.H. 182, 185 - 87 (1950) and Nassif Realty Co. v. Nation al Fire Ins. Co., p. 10 109 the “efficient proximate cause” test, which they assert we applied in such cases as Therrien v. any injuries. Exeter and Triage argue that, instead of applying a “but for” test, we should employ but for the provision of health care services to the Exeter Patients, they would not have suffered professional services exclusion bars coverage under the general liability coverage form because, opinion, Exeter and Triage argue that the court erred in concluding that the healthcare In motions for reconsideration and/or rehearing filed subsequent to the original release of this 7

preserve this alternative argument. Arch primarily appealed whether specific under the [professional liability coverage form].” However, Exeter did not liability cove rage form], the Court should find coverage for Triage and Exeter Healthcare Professional Services Exclusion bars coverage under the [general Exeter also argues that “[s]hould the Court determine that the

coverage form for their negligence claims. 7 professional services exclusion excludes coverage under the general liability damage arose out of the provision of medical services, the healthcare caused the Exeter Patients’ injuries. Accordingly, because the Exeter Patients’ negligent hiring and supervision but for the provision of medical services that injury, and the claimants in this case would not have been injured by Triag e’s not be liable for negligent hiring and supervision unless a claimant suffered an the healthcare professional services exclusion. Put another way, Triage could alleged injury resulted from the provision of medical services, thereby triggering previously filled with a tainted saline solution. Thus, the Exeter Patients’ course of their receiving medical treatment with s yringes that Kwiatkowski had with Hepatitis C — resulted from Exeter employee s injecting them during the and supervision claims against Triage. The injury that they alleged — infection Here, the Exeter Patients brought negligent hiring, employment, training,

that the plaintiff used to frame the suit). and the facts pled in the underlying suit rather than the legal nomenc lature liability policy’s coverage should be determined based up on the policy language p. 11 11

Arch cited the umbrella coverage form’s provision that “[a]dditional insured insurance we re found to provide no coverage. In support of this statement, umbrella coverage form would provide no coverage for Triage if the underlying With regard to Triage, Arch stated during oral argument that the

coverage form also provides no coverage for Exeter. the underlying insurance provides no coverage for Exeter, the umbrella is no coverage for Exeter under that coverage form either. Therefore, because that the healthcare professional liability coverage form was inapplicable, there Additional ly, because neither Exeter nor Triage appealed the trial court’s ruling coverage form is barred by the healthcare professional services exclusion. As discussed above, coverage for Exeter under the general liability

under the underlying insurance. cover age, as any coverage would necessarily be broader than the coverage coverage forms provide no coverage, the umbrella coverage form cannot provide additional insured, if the general liability and healthcare professional liability that Exeter is an additional insured under the policies. Because Exeter is an and healthcare professional liability coverage forms. Neither part y disputes ‘underlying insurance.’” “Underlying insurance” refers to the general liability provided by this insurance will not be broader than coverage provided by the The umbrella coverage form provides that “[a]dditional insured coverage

With regard to Exeter ’s claim for umbrella coverage, we agree with Arch. argues that the umbrella coverage form consequently provides no coverage. healthcare pr ofessional liability cover age form provides no coverage, Arch because Triage and Exeter did not appeal the trial court’s ruling that the found that there is no coverage under the general liability coverage form, and liability and healthcare professional liability coverage forms. Because we have coverage form does not provide broader coverage than the underlying general the umbrella coverage form was not excluded. Arch argues that the umbrella Arch next argues that the trial court erred by finding that coverage under

Sup. Ct. R. 7(5) (providing for the filing of a notice of cross - appeal). party neither filed a cross - appeal nor moved to add the question on appeal); Assoc., 137 N.H. 680, 686 (1993) (declining to review an issue because the review.”); Concord Hosp. v. N.H. Medical Malpractice Joint Underwriting is not raised in a party’s notice of appeal is not preserved for appellate address it. See State v. Blackmer, 149 N.H. 47, 49 (2003) (“An argument that Exeter’s alternative argument is not preserved for our review, we decline to nor Triage raised this argument in a cross - appeal. Accor dingly, because professional liability coverage form did not provide coverage, and neither Exeter under those forms. Arch did not appeal the trial court’s ruling that the exclusions in the general liability a nd umbrella coverage forms barred coverage p. 12 12

healthcare professional services exclusion. Unlike the general liability coverage form, the umbrella co verage form does not contain a 8

unambiguously applies to non - sexual conduct, Arch cites multiple cases that In support of its argument that the abuse or molestation exclusion

favor of the insured ....” (quotation o mitted)). ambiguous, the language subject to different interpretations is construed in v. N. Sec. Ins. Co., 167 N.H. 544, 554 (2015) (“When policy language is reasonable, we construe the exclusion narrowly to permit coverage. See Mellin can also trigger the exclusion. Because we find both interpretations under Arch’s interpretation, non - sexual harassment and non - sexual assault sexual nature even if consensual” only modifies the word “intimacy.” Thus, nature, such as Kwiatkowski’s conduct. Arch argues that the phrase “of a under its interpretation, the exclusion cannot apply to conduct of a non - sexual consensual” modifies the words “harassment,” “assault,” and “intimacy.” Thus, a non - sexual nature. Triage argue s that the phrase “of a sexual nature even if conduct of a sexual nature, or whether the exclusion also applies to conduct of nature.” However, t he parties dispute whether this exclusion applies only to The parties agree that Kwiatkowski’s conduct was not “of a sexual

harassment, assault or intimacy of a sexual nature even if consensual.” Molestation’ includes but is not limited to any physical, mental, or moral umbrella policy defines ‘abuse or mol estation’ as follows: “‘Abuse or in any way related to, in whole or in part, ‘abuse or molestation. ’” The form does not apply to any claim or loss that alleges “[i]njury or damage that is Molestation” exclusion. That exclusion provides that the umbrella coverage The first exclusion that Arch argues bars coverage is the “Abuse or

each exclusion in turn. “Dishonest, Fraudulent, Malicious, Uninsurable Acts” exclusion. We address 8 barred b y two exclusions: (1) an “Abuse or Molestation” exclusion; and (2) a Arch argues that coverage for Triage under the umbrella coverage form is

umbrella policy may “drop down” and become primary). broader coverage than underlying policies and that, in such a case, the 1529, 1531 n.1 (10th Cir. 1992) (explaining that umbrella policies may provide insurance. See, e.g., Coleman Co., Inc. v. California Union Ins. Co., 960 F.2d Triage, even though there is no coverage for Triage under the underlying argues bar coverage, the umbrella coverage form may still pr ovide coverage for Arch cited is inapplicable. Accordingly, subject to the exclusions that Arch under the underlying insur ance, not an additional insured, the provision that by the ‘underlying insurance.’” How ever, because T riage is a named insured coverage provided by this insurance will not be broader than coverage provided p. 13 13

molestation exclusion in a manner that more clearly excluded coverage only for However, the issue is not whether Arch could have written the abuse or

conduct of a sexual nature.”). abuse, sexual harassment, sexual exploitation or other verbal or physical advances, requests for sexu al favors, sexual molestation, sexual assault, sexual limitation sexual intimacy (even if consensual), sexual contact, sexual incident, claim, or suit arising out of ... [a]ny sexual act, including without 22, 2006) (Exclusion provided: “T his insurance does not apply to any medical Co. v. KidsPeace Corp., No. 05 - 0652, 2006 WL 2456468, at *3 (E.D. Pa. Aug. act, including but not limited to molestation, incest or rape.”); Lexington Ins. Payments to others do not apply to bodily injury ... arising out of any sexual Schrum, 149 F.3d 878, 880 (8th Cir. 1998) (Exclusion pr ovided: “Medical not, which arises out of any sexual act.”); St. Paul Fire & Marine Ins. Co. v. claims made against you, whether the injury or damage itself was intended or App’x 293, 295 (5th Cir. 2011) (Exclusion provided: “We will not cover any sexual acts exclusions. See, e.g., Nat’l Fire Ins. v. R adiology Assoc iates, 439 F. support of its argument, it cites multiple cases that have differently worded narrowly — only to conduct of a sexual nature — the exclusion says so.” In Arch next argues that “when an exclusion is intended to apply more

definition controls the meaning of the term). that, whe n an insurance contract defines a term, the language of that See Vaillancourt v. Concord Gen. M ut. Ins. Co., 117 N.H. 48, 50 (1977) (ruling ambiguous regarding whether it applies only to conduct of a sexual nature. authority for whether the definition of “abuse or molestation” used here is the u mbre lla coverage form at issue here. Thus, none of the cases provide any definition for “abuse or molestation,” let alone the same definition contained in However, none of the insurance policies in th o se cases provided a

N.E.3d 738 (Ohio 2016). was not limited to sexual abuse or molestation), rev’d on other grounds, 68 11 (Ohio Ct. App. Dec. 24, 20 p. 13 13) (ruling that an abuse or molestation provision Church v. Grange Mut. Cas. Co., 2013 - Ohio - 5707, 2013 WL 6843615, at *10 molestati on where insurance policy did not define the terms); World Harvest “molestation,” and “abuse or molestation,” w ere not limited to sexual abuse or (Mich. Ct. App. June p. 14 14, 2011) (ruling that the plain meaning s of “abuse,” exclusion); Cincinnati Ins. Co. v. Hall, No. 297600, 2011 WL 2342704, at * 3 - 5 assault allegation and related claims were covered by an abuse or molestation F. Supp. 947, 952 (E.D. Mich. 1994) (i nsured did not dispute that a non - sexual the offending conduct ....”); see also Mount Vernon Fire Ins. Co. v. Hicks, 871 be sexually motivated or calculated to arouse the person or persons involved in molestation] exclusion to indicate that the alleged abuse or molestation must 1074, 1083 (Conn. 2000) (“There is nothing in the language of the [abuse or exclusion. See, e.g., Community Action v. American Alliance Ins., 7 5 7 A.2d have found coverage for non - sexual conduct barred by an abuse or molestation 14

sufficiently developed for appellate review”). See Blackmer, p. 14 149 N.H. at 49 (stating that we do not address arguments that “were not Accordingly, Exeter’s argument that Kwiatkowski’s conduct was not malicious is deemed waived. “malicious”; or (4) develop its argument regarding why Kwiatkowski’s conduct was not malici ous. “malicious” as it is used in the insurance policies; (3) cite any case law interpreting the term actions were a ‘malici ous act’”; (2) brief any argument regarding the meaning of the term argue that the trial court erred when it found that “[t]here is no dispute that Mr. Kwiatkowski’s drug diversion activities, Kwiatkowski intended to infect [the Exeter Patients],” Exeter did not: (1) of Kwiatkowski’s conduct as being “malicious” because “[t]here is no evidence that, in engaging in Exeter took exception. However, other than statin g that it disagrees with Arch’s characterization In its brief, Arch argues that Kwiatkowski’s conduct was malicious — an argument to which 9

performing duties related to t he conduct of Triage’s business because he Arch asserts that Kwiatkowski committed a malicious act while he was broader than that encompassed by the scope of Kwiatkowski’s employment. duties related to the conduct of [Triage’s] business” covers conduct that is “scope of his employment.” Arch contends that the phrase “or while performing effectively limited its analysis to whether Kwiatkowski’s acts were with in the Arch argues that the t rial court’s analysis was erroneous because it

tainted blood. Triage’s business is the provision of temporary staffing — not the provision of Hepatitis C,” which is not part of his job. The trial court also reasoned that court reasoned that Kwiatkowski “diverted drugs and replaced them with Kwiatkowski’s acts were not withi n the scope of his employment. The trial related to the conduct of [Triage’s] business.” The trial court found th at within the scope of their employment by [Triage] or while performing duties Triage’s employees are “insureds” under the Umbrella Policy, “but only for acts because Kwiatkowski was not an “insured” as that term is defined in the policy. ‘malicious act.’” Nevertheless, it ruled that the exclusion was inapplicable 9 The trial court found “no dispute that Mr. Kwiatkowski’s actions were a

law, committed by any insured.” including reckless violation of any statute, or any act deemed uninsurable by professional injury’ arising out of any dish onest, fraudulent or malicious act, claim or loss that alleges: “‘ B odily injury’, ‘property damage’ or ‘medical That exclusion provides that the umbrella coverage form does not apply to any Fraudulent, Malicious, Uninsurable Acts” exclusion (malicious acts exclusion). The final exclusion that Arch argues bars coverage is the “Dishonest,

exclusion in favor of coverage. See Mellin, 167 N.H. at 554. exclude coverage only for conduct of a sexual nature, we interpret the nature. Because the abuse or molestation exclusion c an reasonably be read to molestation exclusion unambiguously applies to conduct that is not sexual in conduct of a sexual nature. Rather, t he issue is whether the abuse or p. 15 15

a fire; court held that the act of flicking the cigarette into trash can after work after hours when she flicked her cigarette ash into a trash can, thereby causing Cir. 2006) (e mployee was in the process of locking up her employer’s business policies. See, e.g., Fed eral Ins. Co. v. Ward, 166 F. App ’ x 24, 26, 28 - 29 (4th employment tend to find employees not t o be insureds under their employer’s Courts that focus up on whether the specific wrongful act was a duty of

performing a duty related to the conduct of his employer’s business). c ommitted the act “in lieu of performing his duties” and therefore was not drive was not an insured under his employer’s insurance because he assaulted one of his students while he was supposed to be teaching her to 242 F. App’x 104, 108 (4th Cir. 2007) (ruling that a driving instructor who employer] to perform” (emphasis added)), with Selective Ins. Co. v. Oglebay, “occurred while he was performing the very task he was directed by [his bus was an “insured” under employer’s policy because his criminal acts bus driver who assaulted two girls while transporting them on his employer’s American Ins. Co. v. Burns, 971 F.2d 438, 445 (10th Cir. 1992) (ruling that a duties related to the conduct of the employer’s business.” Compare All whether such conduct falls within broader phrase s such as “while performing “within the scope of employment,” but they reach varying results regarding agree that an employee’s intentional wrongful conduct does not usually fall employer’s busines s. Other courts that have address ed this issue generally wrongful conduct can occur w hile performin g duties related to conduct of the We have not previously interpreted whether an employee’s intentional

purpose to serve the employer.” (quotation omitted)). authorized time and space limits; and (3) it is actuated, at least in part, by a [the employee] is employed to perform; (2) it occurs sub stantially within the employee’s conduct falls within the scope of employmen t if: “(1) it is of the kind employment”); Porter v. City of Manchester, p. 15 155 N.H. 149, 152 (2007) (An employer’s] business” add to and expand upon the phrase “within the scope of that phrases such as “while performing duties related to the conduct of [the Mut. v. Sec urity Taxicab, 144 F. App’x 513, 518 - 20 (6th Cir. 2005) (concluding not presum e language in a policy to be mere surplus.”); see also State Auto. Ins. Co. v. Mfgs. & Merchants Mut. Ins. Co., 140 N.H. 15, 19 (1995) (“We will the policy language “within the scope of employment.” See Int’l Su r plus Lines effect, it must encompass at least some conduct that is not encompassed by while performing duties related to conduct of [Triage’s] business” i s to be given We agree with the trial court and Arch that if the policy language “or

“insured” for the purposes of the malicious acts exclusion. to the conduct of Triage’s business, Kwiatkowski does not qualify as an swapping a fentanyl syringe for a tainted saline syringe was not a duty related lieu of performing his duties. Triage argues that becau se the specific act of his lab technician duties. T riage argues that Kwiatkowski diverted drugs in diverted drugs at his workplace and at the same time that he was performi ng p. 16 16

syringes for tainted saline syringes whil e he assisted other medical also performing such duties. Here, because Kwiatkowski swapped fentanyl a duty related to the conduct of Triage’s business so long as Kwiatkowski was the policy, it do es not matter whether the specific act of swapping syringes was purpose of determining whether Kwiatkowski was an insured employee under rendered superfluous. See Int’l Su r plus Lines, 140 N.H. at 19. Thus, for the giving meaning and effect to both phrases and ensuring that neither phrase is encompassed by the phrase “within the scope of [his] employment,” thereby conduct of [Triage’s] business” encompasses at least some conduct that is not this interpretation ensures that the ph r ase “while performing duties related to Third New International Dictionary 2604 (una bridged ed. 2002). Furthermore, “the time during which an action takes place or a condition exists.” Webster ’ s This interpretation gives meaning and effect to the word “while,” which means incidentally to, the duties he performed that were related to Triage’s business. causing conduct in which he engaged occurred at the same time as, and was an insured within the meaning of the policy exclusion because the harm - Bearing in mind this divided case law, we determine that Kw i a tkowski

exited his vehicle and assaulted another motorist). performing duties related to the conduct of his employer’s business when he from a personal camping trip was not acting within the scope of employment or 1270 (Me. 2012) (ruling that an employee who was off the clock and returning course of his employment); cf. Travelers Indem. Co. v. Bryant, 38 A.3d 1267, only had access to the women as a result of his employment and during the business, and therefore an insured under his employer’s policy, because he employer’s van was performing duties related to the conduct of [h is employer’s] (e mployee who sexually assaulted two women while transporting them in employee to be an insured. See, e.g., State Auto. Mut., 144 F. App’x at 519 - 20 that an employee was supposed to be performing his duties, tend to find the employee was performing job duties, or was performed at the time and place wrongful act, such as whether the act was performed at the same time that the Conversely, courts that focus up on the circumstances surrounding a

performing duties related to the conduct of the employer’s business). an act within the scope of his employment n or an act performed while kind of conduct that the employee was hired to perform and thus was neither customer’s pool when he was suppose d to be servicing the pool, was not the because the employee’s wrongful conduct, sexually pleasuring himself in a pool service employee was not an “insured” under the employer’s policy Am erica, p. 17 17 F. Supp. 3d 1203, 1207 - 08, 1212 (M.D. Fla. 2014) (ruling that a within the scope of her employment); Chestnut Associates v. Assurance Co. of hours was not a duty related to the conduct of her employer’s business or 17

scope of his employment, it was certainly related to the conduct of Triage’s business. Thus, alt hough working extra shifts and assisting other employees might not have been within the these situations than the tasks he performed when he was scheduled to be in the operating room. suggested, that Kwiatkowski performed different tasks when he was in the operating room in though this was not one of his duties. We disagree. There was no evidence, and Triage has not scheduled to be on duty; (3) he assisted other employees by bring ing them lead aprons, even was not assigned; (2) in some situations he gained access to the operating room when he was not there was evidence before the trial court that: (1) Kwiatkowski inf ected some patients to whom he was performing duties related to the conduct of Triage’s business when he diverted drugs because Triag e additionally argues that there is an issue of material fact regarding whether Kwiatkowski 11 patients’ fentanyl syringes for tainted saline syringes. continued performance of his job duties is precisely what ena bled him to simultaneously swap the Kwiatkowski abandoned all of his job duties while he was diverting fentanyl. Rather, his Associates, p. 17 17 F. Supp. 3d at 1212. However, that is not the case here. There is no evidence that wrongful conduct while performing duties related to his employer’s business. See, e.g., Chestnut con duct in lieu of performing the duties. In such a situation, the employee is not engaging in his or her employer’s business completely abandons those duties and engages in wrongful That being said, the re may be situ ations in which a person who is pe rforming duties related to 10

at Exeter were related to the conduct of Triage’s business. 11 income for Triage. Thus, while Kwiatkowski was a Triage employee, hi s duties Triage employee, performing the duties of his employment, which resulted in duties related to Triage’s business during this period. Kwiatkowski was a these facts, we cannot agree with Triage that Kwiatkowski was not performing Exeter paid Triage for the hours worked by Triage employees. Based up on April 2011 and October 2011. Pursuant to the Triage - AHSA staffing contract, Th ere is no dispute that Kwiatkowski was a Triage employee between

“Medical Registry.” Description” contained within its insurance policies that lists its business as provision of health care services. Triage further relies upon a “Business p resident stating that the company’s business is medical staffing, not the care services. In support of this argument, Triage r elies upon an affidavit of it s Triage asserts that its business is medical staffing, not the provision of health technician duties were not duties related to the conduct of Triage’s business. Triage next argues that Kwiatkowski was not an insured beca use his lab

exclusion of any meaningful purpose. purposes of that act. Thus, the ir interpretation would effectively strip the employee who commits such an act sheds the definition of “insured” for the and Exeter’s interpretation, the exclusion cannot reach these acts becaus e an employment or other duties related to the employer’s business. Under Triage’s coverage for wrongs that one would not expect to fall within the scope of expectations. The purpose of the malicious acts exclusion is to exclude Moreover, this interpretation comports with the parties’ reasonable

insured under Triage’s policies. 10 professionals to prepare for and to carry out invasive procedures, he was an p. 18 18

after he became an employee of Exeter. a duty to indemnify only for liability imposed upon Triage with respect to Kwiatkowski’s actions period before and after Kwiatkowski became an employee of Exeter even though Arch would have address whether Arch may be required to defend Triage with respect to claims that span the under consideration, we do not address it either. On remand, however, the trial court should upon the distinction between these duties in their arguments addressed to the exclusion here Philadelphia Indem. Ins. Co., 164 N.H. 612, 627 - 28 (2013). Because the parties do not focus We note that the duty to defend is broader than the duty to indemnify. See Great Am. Dining v. 12

added.) Triage argues that the phrase “any insured” is ambiguous in light of act deemed uninsurable by l aw, committed by any insured.” (Emphasis fraudulent or malicious act, including reckless violation of any statute, or any damage’ or ‘medical professional injury’ arising out of any dishonest, form d oes not apply to any claim or loss that alleges: “‘ B odily injury’, ‘property is brought.” The malicious acts exclusion provides that the umbrella coverage form applies “[s]eparately to each insured against whom ‘claim’ is made or ‘suit’ The separation of insured s clause provides that the umbrella coverage

Kwiatkowski. ambiguous regarding whether it can apply to Triage based up on the conduct of the separation of insureds clause renders the malicious acts exclusion Kwiatkowski was an insured during the period that he was a Triage employee, Triage next argues that, not withstanding our determination that

grant of summary judgment for either party. 12 a Triage employee, there is a disputed issue of material fact that precludes the allege dates of exposure both during and after the period that Kwiatkowski was defense or indemnity to Triage. However, for the remainin g claims, those that exclusion applies, and Arch is entitled to summary judgment that it owes no that allege dates of exposure solely within that period, the malicious acts judgment that it is covered unde r the umbrella coverage form. For the claims period that Kwiatkowski was a Triage employee, Triage is entitled to summary Therefore, for the claims that allege dates of exposure solely outside the

that resulted in the infection of each of the Exeter Patients. malicious acts exclusion depends upon when Kwiatkowski took the a ctions dates both during and after that period. Thus, the applicability of the Triage employee, some allege dates solely after that per iod, and some allege infection dates: some allege dates so lely within the period Kwiatkowski was a he ceased to be a Triage employee. The Exeter Patients allege different while he was an insured, but does not bar coverage for Kwiatkowski’s acts after The malicious acts exclusion excludes coverage for Kwiatkowski’s acts

therefore no longer an insured under Triage’s insurance policies. “performing duties related to the conduct of [Triage’s] business,” and he was Kwiatkowski ceased to be a Triage employee at that time, he was not In October 2011, however, Exeter hired Kwiatkowski. Because p. 19 19

614. conclusions. Compare Co - operative Ins. Companies, 45 A.3 d at 94, with Minkler, 232 P.3d at As we discussed above, other courts that have dealt with this issue have reached varying 13

to Triage for claims that allege dates of exposure after Kwiatkowski ceased to In light of our ruling that the umbrella coverage form provide s coverage

the general liability covera ge form, we need not address this argument. professional services exclusion precludes coverage to Triage and Exeter under general liability coverage form s. Because we have found that the healthcare Kwiatkowski’s conduct constituted multiple occurrences under the Arch Arch argues that the trial court erred when it determined th at

the period that Kwiatkowski was an insured. exclusion bars coverage to Triage for Kwiatkowski’s wrongful conduct during reasonable interpretation, it is not ambiguous. Accordingly, the malicious acts Therefore, because the malicious acts exclusion is subject to only one

(quotation omitted)). ambiguities if possible and should not torture the language to create them” interpreting an in surance policy should read policy provisions to avoid language, thereby “adher [ing] to the Third Circuit’s dictate that a court notwithstanding a separation of insureds provision, gives meaning to all of the phrase “any insured” as creating joint obligations among insureds, reasonable); cf. Carbone, 937 F. Supp. at 423 (reasoning that interpreting the explicit language of a policy and renders part of the policy meaningless is not N.H. 174, 178 (2003) (reasoning that an interpretation that contravenes the it is not a reasonable interpretation. See Weeks v. Co - Operative Ins. Cos., 149 interpretation renders meaningless the word “any” in the phrase “any insured,” Triage based upon the conduct of another insured. But because Triage’s Conversely, Triage argues that the malicious acts exclusion should not apply to to the exclusion in question. See Carbone, 937 F. Supp. at 422 - 23. “the insured,” it is not rendered meaningless simply because it does not apply apply to the policies’ other exclusion s that apply based upon the conduct of as we discussed above, because the separation of insureds clau se can still interpretation gives effect to the plain meaning of “any insured.” Furthermore, upon the malicious conduct of another insured — Kwiatkowski. This 612, 616 (201 3). Arch argues tha t the exclusion bars coverage to Triage based the insured. See Great Am. Dining v. Phila delphia Indem. Ins. Co., 164 N.H. susceptible of two reasonable interpretations, one of which affords coverage to However, for a policy to be construed to be ambiguous, it must be

exclusion narrowly in favor of coverage. 13 the separa tion of insureds clause, and, therefore, we must construe the p. 20 20

in the final vote; DALIANIS, C.J., and BASSETT, J., concurred. HICKS and CONBOY, J J., sat for oral argument but did not participate

further proceedings consistent with this opinion. pursuant to the umbrella coverage forms, and remand to the trial court for judgment in favor of Triage regarding Arch’s duty to defend and indemnify it forms, reverse in part and vacate in part the trial court’s grant of summary Arch’s duty to defend and indemnify it pursuant to the umbrella coverage reverse the trial court’s grant of summary judgm ent in favor of Exeter regarding defend and indemnify them pursuant to the general liability coverage forms, summary judgment in favor of Triage and Exeter regarding Arch’s duty to For the reasons stated above, we reverse the trial court’s grant of

at 49; Concord Hosp., 137 N.H. at 686. preserved for our review, and we decline to address it. See Blackmer, 149 N.H. However, because Exeter did not raise this argument i n a cross - appeal, it is not that Arch should be declared responsible f or 100% of Exeter’s defense costs. obligation to share Exeter’s defense costs equally with Exeter. Exeter argues Exeter asks us to consider the trial court’s ruling regarding Arch’s

up to the full amount of $3 million per policy. events, the umbrella coverage forms for both of those years will b e applicable both the p. 20 2011 and 2012 policies provide coverage to Triage for the underlying coverage. Accordingly, because Arch did not appeal the trial court’s ruling that umbrella coverage forms provide coverage, only o ne policy year should provide it did not argue that, in the event that we affirm the trial court’s ruling that the trial court’s ruling that the umbrella coverage forms provide coverage to Triage, coverage under both the 2011 and 20 12 policies. A lthough Arch appealed the Furthermore, the trial court ruled that the underlying events triggered

single occurrence is equal to the form’s total coverage. occurrences is not at issue in the umbrella policy because the coverage for a be a Triage employee, we note, however, that the question of how many