2026 N.H. 19, In the Matter of Liquidation of Home Ins. Co.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by email at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court’s home page is: https://www.courts.nh.gov/our-courts/supreme-court. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack Case No. 2025-0178 Citation: In the Matter of Liquidation of Home Ins. Co., 2026 N.H. 19 IN THE MATTER OF THE LIQUIDATION OF THE HOME INSURANCE COMPANY Argued: January 27, 2026 Opinion Issued: April 24, 2026 Morrison & Foerster LLP, of New York, New York (Joseph R. Palmore, James A. Newton, and Alexandra M. Avvocato on the brief, and Joseph R. Palmore orally), and Orr & Reno, PA, of Concord (Lisa Snow Wade on the brief), for the appellant. John M. Formella, attorney general (Christopher G. Bond, associate attorney general, on the brief), and Davis, Malm & D’Agostine, P.C., of Boston, Massachusetts (J. David Leslie and Eric A. Smith on the brief, and Eric A. Smith orally), for the appellee. DONOVAN, J. [¶1] The appellant, Century Indemnity Company (CIC), challenges the Superior Court’s (Kissinger, J.) denial of CIC’s motion to recommit or return the Referee’s (Gehris, R.) order regarding CIC’s contribution claim. The referee and the trial court ruled that under RSA chapter 402-C (2018 & Supp. 2025), the Insurers Rehabilitation and Liquidation Act (Act), the full amount of The Home Insurance Company’s (Home) settlement with Home and CIC’s common insured should determine the extent of CIC’s contribution rights. We agree and, accordingly, affirm. I. Facts [¶2] The trial court found, or the record supports, the following facts. CIC and Home both issued insurance policies to a common insured (Insured) that covered the same risks. CIC also reinsures Home, which obligates it to indemnify Home’s liabilities to its policyholders under certain circumstances. The Insured filed insurance claims against Home and CIC. [¶3] In 2003, Home became insolvent and entered liquidation proceedings under the Act. In 2023, the appellee, the New Hampshire Insurance Commissioner (Liquidator), settled Home’s liability to the Insured. The settlement establishes the amount of Home’s liability to the Insured, thereby permitting the Insured to collect up to the settlement figure as a “Class II” claim from Home’s estate. See RSA 402-C:44 (2018) (providing that policyholders’ claims receive second priority in distributions from an insolvent insurer’s estate). Because Home’s assets are inadequate to pay its Class II claims in full, however, it will not pay the Insured the full settlement amount.1 [¶4] In January 2023, CIC asserted a contribution claim against Home for the shortfall between the settlement figure and the amount that Home actually distributes to the Insured.2 CIC argued that the Insured would seek indemnity in the amount of this shortfall from CIC, Home’s co-insurer, in addition to “CIC’s own share of the coinsured risk.” CIC sought to set off an allowed contribution claim against its separate reinsurance obligation to Home. See RSA 402-C:34, I (2018) (stating that, in general, an insolvent insurer’s “[m]utual debts or mutual credits” with another entity “shall be set off and the balance only shall be allowed or paid”). [¶5] The Liquidator disallowed CIC’s contribution claim, maintaining that Home satisfied its share of the Insured’s loss by settling for an allowed Class II claim that represented its liability to the Insured. The parties therefore asked the referee to determine whether, as an initial matter, “the allowed settlement amount or the amount paid in distributions should be considered in determining the extent of any right of CIC to contribution from Home.” See 1 As of November 2024, the Liquidator had distributed forty-five percent of Home’s estate. 2 CIC disputes its liability to the Insured. Nonetheless, it asserted a contribution claim, contingent on its being held liable under the Insured’s insurance policy, because the trial court set Home’s Claim Amendment Deadline for January 26, 2023. See RSA 402-C:37, I (2018) (mandating that claims be filed by deadline); RSA 402-C:39, III (2018) (allowing contingent claims). RSA 402-C:41, I (2018) (allowing a claimant to submit a disputed claim for a court’s consideration following the Liquidator’s denial of the claim). The referee found that: (1) under the Act, for the purpose of CIC’s right to contribution, Home had paid its “fair share” by settling with the Insured; and (2) therefore, CIC could not assert contribution rights against Home deriving from the shortfall between the full settlement figure and Home’s actual distributions to the Insured. [¶6] CIC moved to recommit the referee’s order. The trial court held a hearing and subsequently denied CIC’s motion, largely adopting the referee’s reasoning. This appeal followed. II. Analysis [¶7] The thrust of CIC’s argument on appeal is that its contribution claim against Home should be calculated using the amount that Home actually distributes to the Insured, rather than the nominal settlement figure. “The aim of equitable contribution is to apportion a loss between two or more insurers who cover the same risk so that each pays its fair share of a common obligation.” 44A Am. Jur. 2d Insurance § 1766 (2003). As a threshold matter, we note that, because the parties agree that the nominal settlement figure equals Home’s total liability to the Insured, calculating CIC’s contribution rights based on the settlement amount would foreclose CIC’s contribution claim. See id. CIC’s claim will only proceed if we hold that Home’s actual distributions to the Insured determine whether it has borne “its fair share” of the Insured’s loss. Id. [¶8] CIC first argues that the Act, which “is silent on contribution claims,” does not abrogate the common law regarding contribution. CIC therefore contends that the Act does not bear on the question of whether CIC may assert a right to contribution from Home. Addressing this argument requires us to construe the Act. “We review the trial court’s statutory interpretation de novo.” Boucher v. Town of Moultonborough, 176 N.H. 271, 274 (2023). “We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning.” Id. “We give effect to every word of a statute whenever possible and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. “We also construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Id. “However, we do not construe statutes in isolation; instead, we attempt to construe them in harmony with the overall statutory scheme.” Id. [¶9] As CIC observes, no provision of the Act specifically dictates how to calculate a co-insurer’s claim for contribution from the liquidating insurer. “Generally, we will not construe a statute . . . as abrogating the common law unless the statute clearly expresses such an intention.” Petition of Willeke, 169 N.H. 802, 806 (2017) (quotation and brackets omitted). “However, when a statute revises the entire …