EnergyNorth v . Century 99-CV-49-JD 6/28/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
EnergyNorth Natural Gas, Inc.
v. Civil N o . 99-cv-49-JD Opinion N o . 2007 DNH 083 Century Indemnity Company
O R D E R
Following an award of attorneys' fees and costs to
EnergyNorth Natural Gas, Inc., Century Indemnity Company paid the
amount of the award and has sought to have liability for the
award allocated equally between it and its former co-defendant,
Certain Underwriters at Lloyd's, London, and Certain London
Market Insurance Companies ("Lloyd's"). Century moves for
contribution from Lloyd's and, alternatively, for leave to file a
cross claim for contribution. Because Lloyd's reached a
settlement with EnergyNorth, it is no longer participating in
this case. EnergyNorth, however, opposes Century's motions.
I. Motion for Contribution
Century moves for contribution from Lloyd's pursuant to New
Hampshire Revised Statutes Annotated ("RSA") § 507:7-g(I) and New
Hampshire common law. As a preliminary matter, Lloyd's status in
this case is somewhat ambiguous. Although EnergyNorth and Lloyd's filed a notice of settlement on May 1 8 , 2006, and filed a
stipulation of dismissal on November 1 4 , 2006, Century did not
sign the stipulation, as is required for a voluntary dismissal
under Federal Rule of Civil Procedure 41(a)(1)(ii). William P.
Lalor is still listed as Lloyd's lead attorney to be noticed.
Nevertheless, Lloyd's has not participated in the post- stipulation motions pertaining to contribution, and instead,
EnergyNorth has responded to Century's motions. Therefore, while
Lloyd's is still a party, due to the lack of Century's signature
on the voluntary dismissal, EnergyNorth, apparently, is acting in
Lloyd's place pursuant to their settlement agreement.
A. RSA 507:7-g(I)
For purposes of RSA 507:7-g(I), Century relies on its
request, first raised in its motion for reconsideration of the
order denying its motion for relief from judgment, that the court
allocate liability for the fees and costs award equally between
it and Lloyd's, pursuant to RSA 507:7-e(III). The motion for
reconsideration, however, has been denied. In the absence of an
allocation under RSA 507:7-e(III), there appears to be no basis
for Century's motion for contribution under the New Hampshire
statute. See RSA 507:7-g(I).
2 B. Common Law
Alternatively, Century argues that it is entitled to
contribution under a common law equity theory.1 Century first
argues that Liberty Mutual v . Home Ins. Co., 117 N.H. 269 (1977),
requires an equal contribution toward the award. Century also contends that as a co-debtor under the amended judgment, Lloyd's
bears equal responsibility for the fees and costs incurred so
that equity would support a contribution of half of the award.
In Liberty, where two insurers disputed their liability for
fees and costs under RSA 491:22-b, the New Hampshire Supreme
Court held that the statutory obligation applied to both of the
insurers because the statute was in force at the conclusion of
the insured's action against them and because they both
wrongfully refused coverage. 117 N.H. at 272. The court ordered each to pay half of the insured's court costs and reasonable
attorneys' fees. Id. In making that determination, however, the
court did not consider issues of joint and several liability or
equitable contribution. Therefore, Liberty holds that RSA
491:22-b obligates insurers who wrongfully refuse coverage to pay
1 Although the parties have not raised i t , a question might arise as to whether equitable relief is available if a statutory remedy exists. See, e.g., Hammons v . Ehney, 924 S.W. 2d 843, 846-47 (Mo. 1996).
3 costs and fees but does not require that an award of fees will
always be allocated evenly between defendant insurers.
The New Hampshire Supreme Court has stated that "the
historic purpose of equity [is] to secure complete justice . . .
. A court of equity will order to be done that which in fairness
and good conscience ought to be or should have been done." Chase v . Ameriquest Mortgage Co., 921 A.2d 369, 374 (N.H. 2007).
Contribution is based on a maxim that equality is equity,
assuming that the parties are equally obligated to pay. See
Century Indem. C o . v . Maryland Cas. Co., 89 N.H. 1 2 1 , 122 (1937);
see also Valley Ins. C o . v . Wellington Cheswick, LLC, 2007 WL
419321 at *4-*5 (W.D. Wash. Jan. 3 1 , 2007); Rodehorst v . Gartner,
669 N.W. 2d 679, 684 (Neb. 2003). The obligations of two
defendants who are jointly and severally liable for a post-trial
award of attorneys' fees, at least in this case, does not implicate the factual complexities that may arise in determining
relative tort liabilities in complex cases. Cf., e.g., Puget
Sound Energy v . Certain Underwriters at Lloyd's, 138 P.3d 1068,
1079 (Wash. C t . App. 2006); Thermos C o . v . Spence, 735 A.2d 4 8 4 ,
489 (Me. 1999).
In this case, Century and Lloyd's pursued their defenses
through more than six years of pretrial litigation, trial, entry
of judgment against them, and a dispute over the award of
4 attorneys' fees and costs.2 Only then did Lloyd's reach an
agreement with EnergyNorth as part of a global settlement of many
other cases.3 Despite the settlement agreement, Lloyd's remains
a party in this case. While there is no evidence that the
litigation was exacerbated by Lloyd's participation, it now
appears to be undisputed that Lloyd's shared equally with Century
in pursuing their mutual defenses. It now also appears to be
undisputed that EnergyNorth and Lloyd's reached an accord as to
the issue of fees and costs and that EnergyNorth is acting in
Lloyd's stead for purposes of this issue.
Although Liberty does not require an equal allocation of
obligation for an award of attorneys' fees under RSA 491:22-b, it
provides support for such a division under equitable principles.
Lloyd's participation in all aspects of the litigation of this
case as an apparently equal partner with Century also supports an
equal division of responsibility for the first award of fees and
costs. In addition, the record does not suggest that
contribution would upset the settlement, in as much as Lloyd's
2 Seventeen insurers were named as defendants at the beginning of this case. Over the intervening years, most reached settlements with EnergyNorth. No contribution is sought in this case against the other settling defendants. 3 Lloyd's continued to participate in litigating the fees and costs issue until May 1 8 , 2006, when Lloyd's and EnergyNorth filed a notice of their settlement.
5 was a party in this case when the amended judgment was entered,
and remains a party now. Therefore, the circumstances of this
case, taken as a whole, support granting Century's motion for
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EnergyNorth v . Century 99-CV-49-JD 6/28/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
EnergyNorth Natural Gas, Inc.
v. Civil N o . 99-cv-49-JD Opinion N o . 2007 DNH 083 Century Indemnity Company
O R D E R
Following an award of attorneys' fees and costs to
EnergyNorth Natural Gas, Inc., Century Indemnity Company paid the
amount of the award and has sought to have liability for the
award allocated equally between it and its former co-defendant,
Certain Underwriters at Lloyd's, London, and Certain London
Market Insurance Companies ("Lloyd's"). Century moves for
contribution from Lloyd's and, alternatively, for leave to file a
cross claim for contribution. Because Lloyd's reached a
settlement with EnergyNorth, it is no longer participating in
this case. EnergyNorth, however, opposes Century's motions.
I. Motion for Contribution
Century moves for contribution from Lloyd's pursuant to New
Hampshire Revised Statutes Annotated ("RSA") § 507:7-g(I) and New
Hampshire common law. As a preliminary matter, Lloyd's status in
this case is somewhat ambiguous. Although EnergyNorth and Lloyd's filed a notice of settlement on May 1 8 , 2006, and filed a
stipulation of dismissal on November 1 4 , 2006, Century did not
sign the stipulation, as is required for a voluntary dismissal
under Federal Rule of Civil Procedure 41(a)(1)(ii). William P.
Lalor is still listed as Lloyd's lead attorney to be noticed.
Nevertheless, Lloyd's has not participated in the post- stipulation motions pertaining to contribution, and instead,
EnergyNorth has responded to Century's motions. Therefore, while
Lloyd's is still a party, due to the lack of Century's signature
on the voluntary dismissal, EnergyNorth, apparently, is acting in
Lloyd's place pursuant to their settlement agreement.
A. RSA 507:7-g(I)
For purposes of RSA 507:7-g(I), Century relies on its
request, first raised in its motion for reconsideration of the
order denying its motion for relief from judgment, that the court
allocate liability for the fees and costs award equally between
it and Lloyd's, pursuant to RSA 507:7-e(III). The motion for
reconsideration, however, has been denied. In the absence of an
allocation under RSA 507:7-e(III), there appears to be no basis
for Century's motion for contribution under the New Hampshire
statute. See RSA 507:7-g(I).
2 B. Common Law
Alternatively, Century argues that it is entitled to
contribution under a common law equity theory.1 Century first
argues that Liberty Mutual v . Home Ins. Co., 117 N.H. 269 (1977),
requires an equal contribution toward the award. Century also contends that as a co-debtor under the amended judgment, Lloyd's
bears equal responsibility for the fees and costs incurred so
that equity would support a contribution of half of the award.
In Liberty, where two insurers disputed their liability for
fees and costs under RSA 491:22-b, the New Hampshire Supreme
Court held that the statutory obligation applied to both of the
insurers because the statute was in force at the conclusion of
the insured's action against them and because they both
wrongfully refused coverage. 117 N.H. at 272. The court ordered each to pay half of the insured's court costs and reasonable
attorneys' fees. Id. In making that determination, however, the
court did not consider issues of joint and several liability or
equitable contribution. Therefore, Liberty holds that RSA
491:22-b obligates insurers who wrongfully refuse coverage to pay
1 Although the parties have not raised i t , a question might arise as to whether equitable relief is available if a statutory remedy exists. See, e.g., Hammons v . Ehney, 924 S.W. 2d 843, 846-47 (Mo. 1996).
3 costs and fees but does not require that an award of fees will
always be allocated evenly between defendant insurers.
The New Hampshire Supreme Court has stated that "the
historic purpose of equity [is] to secure complete justice . . .
. A court of equity will order to be done that which in fairness
and good conscience ought to be or should have been done." Chase v . Ameriquest Mortgage Co., 921 A.2d 369, 374 (N.H. 2007).
Contribution is based on a maxim that equality is equity,
assuming that the parties are equally obligated to pay. See
Century Indem. C o . v . Maryland Cas. Co., 89 N.H. 1 2 1 , 122 (1937);
see also Valley Ins. C o . v . Wellington Cheswick, LLC, 2007 WL
419321 at *4-*5 (W.D. Wash. Jan. 3 1 , 2007); Rodehorst v . Gartner,
669 N.W. 2d 679, 684 (Neb. 2003). The obligations of two
defendants who are jointly and severally liable for a post-trial
award of attorneys' fees, at least in this case, does not implicate the factual complexities that may arise in determining
relative tort liabilities in complex cases. Cf., e.g., Puget
Sound Energy v . Certain Underwriters at Lloyd's, 138 P.3d 1068,
1079 (Wash. C t . App. 2006); Thermos C o . v . Spence, 735 A.2d 4 8 4 ,
489 (Me. 1999).
In this case, Century and Lloyd's pursued their defenses
through more than six years of pretrial litigation, trial, entry
of judgment against them, and a dispute over the award of
4 attorneys' fees and costs.2 Only then did Lloyd's reach an
agreement with EnergyNorth as part of a global settlement of many
other cases.3 Despite the settlement agreement, Lloyd's remains
a party in this case. While there is no evidence that the
litigation was exacerbated by Lloyd's participation, it now
appears to be undisputed that Lloyd's shared equally with Century
in pursuing their mutual defenses. It now also appears to be
undisputed that EnergyNorth and Lloyd's reached an accord as to
the issue of fees and costs and that EnergyNorth is acting in
Lloyd's stead for purposes of this issue.
Although Liberty does not require an equal allocation of
obligation for an award of attorneys' fees under RSA 491:22-b, it
provides support for such a division under equitable principles.
Lloyd's participation in all aspects of the litigation of this
case as an apparently equal partner with Century also supports an
equal division of responsibility for the first award of fees and
costs. In addition, the record does not suggest that
contribution would upset the settlement, in as much as Lloyd's
2 Seventeen insurers were named as defendants at the beginning of this case. Over the intervening years, most reached settlements with EnergyNorth. No contribution is sought in this case against the other settling defendants. 3 Lloyd's continued to participate in litigating the fees and costs issue until May 1 8 , 2006, when Lloyd's and EnergyNorth filed a notice of their settlement.
5 was a party in this case when the amended judgment was entered,
and remains a party now. Therefore, the circumstances of this
case, taken as a whole, support granting Century's motion for
equitable contribution from Lloyd's of one half of the amount of
fees and costs as awarded in the amended judgment on October 1 6 ,
2006. No contribution is sought or granted as to fees and costs incurred in pursuing the attorneys' fees and costs issue.
II. Motion for Leave to File Cross Claim for Contribution
Alternatively, Century seeks leave to file a cross claim
against Lloyd's for contribution toward the fees and costs award.
Because the contribution claim is resolved in the context of
Century's motion for contribution, the alternative of filing a
cross claim is moot.
6 Conclusion
For the foregoing reasons, the defendant's motion for
contribution (document n o . 470) is granted to the extent that
Lloyd's shall pay one half of the amount of the fees and costs,
$1,013,892.06, as awarded in the amended judgment entered on
October 1 6 , 2006. The defendant's alternative motion for leave to file a cross claim (document n o . 471) is denied as moot.
SO ORDERED.
Foseph A. DiClerico, Jr. United States District Judge June 2 8 , 2007
cc: John L . Altieri, Esquire Walter J. Andrews, Esquire Richard T . Apiscopa, Esquire Michael F. Aylward, Esquire Charles P. Bauer, Esquire Edmund J. Boutin, Esquire Kevin E . Buchholz, Esquire Doreen F. Connor, Esquire Stephen A . Duggan, Esquire Bruce W . Felmly, Esquire John D. Frumer, Esquire Robert J. Gallo, Esquire Rachel A . Hampe, Esquire Paul W . Hodes, Esquire Ruth S . Kochenderfer, Esquire William P. Lalor, Esquire Jeffrey B . Osburn, Esquire Stephen H . Roberts, Esquire Lawrence A . Serlin, Esquire
7 Michael J. Balch, Esquire Robert J. Bates, Esquire Ann Bickford, Esquire John A . Guarascio, Esquire Jeffrey P. Heppard, Esquire Jeffrey H . Karlin, Esquire Theodore A.Keyes, Esquire Scott E.Levens, Esquire George W . Lindh, Esquire John L . Putnam, Esquire