EnergyNorth v. Century, et al.

• Court: District Court, D. New Hampshire
• Decided: March 8, 2000
• Docket: CV-97-064-M
• Status: Published

Opinion

EnergyNorth v . Century, et a l . CV-97-064-M 03/08/00 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

EnergyNorth Natural Gas, Inc., Plaintiff

v. Civil N o . 97-64-M Opinion N o . 2000DNH062 Century Indemnity Company; Indemnity Insurance Company of North America; Insurance Company of North America; Lloyd’s Underwriters of London; S t . Paul Fire & Marine Insurance Co.; Utica Mutual Insurance Company; and Westport Insurance Corporation, Defendants

O R D E R

Plaintiff EnergyNorth Natural Gas, Inc. (“EnergyNorth”)

moves for partial summary judgment (document n o . 135) with

respect to the meaning of apparently disputed terms in insurance

policies sold to it by Defendant S t . Paul Fire & Marine Insurance

Company (“St. Paul”) and by Defendant Utica Mutual Insurance

Company (“Utica”). Essentially, EnergyNorth says the policies in

effect from 1974 to 1984 provide general liability coverage, are

of the “occurrence” type, and each, as a matter of law, embodies

a “continuous injury-in-fact” trigger of coverage. Defendants

S t . Paul’s and Utica object, but not persuasively. Putting aside the ultimate question of whether the policies

at issue provide coverage under the pertinent facts of the case,

an issue not raised by EnergyNorth’s motion, and focusing on the

construction dispute actually presented by the motion, it appears

that the policies, as a matter of law, do embody a continuous

injury-in-fact trigger of coverage theory. The language of the

policies at issue is substantively indistinguishable from that

construed by Chief Judge Barbadoro in EnergyNorth Natural Gas,

Inc. v . Associated Electric & Gas Insurance Services, Inc., C-95-

591-B. While S t . Paul’s and Utica devote most of their

respective objections to arguing lack of coverage on the merits,

they do seem to also claim that the policies embody a

“manifestation” trigger theory, and therein lies the real dispute

here. Whether a continuous injury-in-fact, or a manifestation

theory, is embodied in the policies will necessarily determine

what facts are pertinent to establishing coverage under the

policies.

Adopting and applying Chief Judge Barbadoro’s analysis in

his Memorandum and Order dated September 3 0 , 1998, in Associate

Electric, to the occurrence policies issued by S t . Paul’s and

Utica, it is clear that plaintiff is entitled to partial summary

2 judgment. As a matter of law, then, the S t . Paul’s and Utica

policies embody a continuous injury-in-fact trigger of coverage

theory.

Whether coverage under those policies extends to the claims

at issue remains to be proven.

Conclusion

Plaintiff’s motion for partial summary judgment (document

n o . 135) is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 8 , 2000

cc: Bruce W . Felmly, Esq. Emily G. Rice, Esq. Paul A . Leodori, Esq. Doreen F. Connor, Esq. John A . Guarascio, Esq. Michael F. Aylward, Esq. Kimball A . Lane, Esq. George w . Lindh, Esq.