Marston v. United States Fidelity & Guaranty Co.

609 A.2d 745, 135 N.H. 706, 1992 N.H. LEXIS 106
CourtSupreme Court of New Hampshire
DecidedJune 30, 1992
DocketNo. 91-302
StatusPublished
Cited by19 cases

This text of 609 A.2d 745 (Marston v. United States Fidelity & Guaranty Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marston v. United States Fidelity & Guaranty Co., 609 A.2d 745, 135 N.H. 706, 1992 N.H. LEXIS 106 (N.H. 1992).

Opinion

JOHNSON, J.

The plaintiffs, Donald and Linda Marston, appeal from a Superior Court (Dalianis, J.) order granting an amended motion for summary judgment filed by the defendant, United States Fidelity and Guaranty Company (USF&G), in a declaratory judgment action. On appeal, the plaintiffs argue that the superior court erred in: (1) allowing USF&G to relitigate issues of fact after its [708]*708insured, A&E Forklift Company (A&E), had defaulted in the underlying tort action; (2) allowing USF&G to file an amended motion for summary judgment; and (3) finding that USF&G was not obligated to insure A&E under the relevant insurance policy language. We affirm.

The record establishes the following facts. Donald Marston was employed by Sandhill Warehouse Wholesale Company (Sandhill). Sandhill had purchased a forklift from A&E that continually leaked hydraulic fluid onto the warehouse floor. On October 6,1982, Marston slipped on the hydraulic fluid while working and sustained serious injuries.

A&E maintained a comprehensive general liability insurance policy underwritten by USF&G. The policy did not cover A&E for “completed operations hazards,” defined to include

“bodily injury and property damage arising out of operations . . . but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the Named Insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise completed, shall be deemed completed.”

This policy was in effect at the time of the accident.

In July 1985, the plaintiffs sued A&E to recover for Donald Marston’s injuries. Several months later, USF&G determined that the injury was not covered under A&E’s insurance policy. Accordingly, USF&G informed all parties that it would not defend A&E in any further proceedings. In response to USF&G’s refusal to defend A&E, the plaintiffs initiated a declaratory judgment action against A&E and USF&G in January 1986 to determine whether A&E was covered under the insurance policy.

[709]*709USF&G moved for summary judgment in the declaratory judgment action, claiming that A&E’s operations were “completed” under the “completed operations hazards” provision. The Superior Court (Holman, J.) denied this motion in December 1987. It was

“unable to determine whether [A&E] had a continuing duty to service and maintain the forklift, such as would arise, for example, under an agreement to provide routine service on an ongoing basis, or whether [A&E] merely had an obligation to provide service and maintenance sporadically .... If [A&E] had an ongoing service contract with [Sandhill] for routine maintenance, then its operations would not have been completed within the meaning of the [“completed operations hazards” exclusion]____In that situation, the insurer would have an obligation to defend [A&E] in the underlying tort action. If, on the other hand, [A&E] had merely agreed to repair the forklift if and when necessary, then the operation performed by it in this case would be considered as ‘completed’ for purposes of the policy exclusion.”

In October 1988, after A&E had filed for bankruptcy, A&E’s attorney withdrew from the declaratory judgment and the tort actions. It was advised to obtain new counsel or default. A&E failed to obtain new counsel. Accordingly, it defaulted in both the declaratory judgment action and the tort action.

Having obtained a default order against A&E in the underlying tort action, the plaintiffs filed a motion in limine to preclude USF&G from relitigating issues of fact in the ongoing declaratory judgment action. A&E argued that such issues were “already decided in the underlying [tort] action.” The Superior Court (Goode, J.) denied this motion.

Next, USF&G filed an amended motion for summary judgment addressing the factual issue that the superior court had been unable to decide in December 1987: “whether A&E had a continuing duty to service and maintain the forklift.” USF&G attached the affidavit of Edward G. Robinson, a former president of A&E, to its amended motion. According to Mr. Robinson, “although [A&E] after the sale did perform maintenance work on the subject forklift for [Sandhill], on each occasion necessary maintenance work was completed with no obligation or plans to return and perform further work.” Based on this new information, the Superior Court (Dalianis, J.) granted USF&G’s amended motion for summary judgment. The plaintiffs appeal from this ruling.

[710]*710The plaintiffs first contend that the doctrine of res judicata barred USF&G from litigating in the declaratory judgment action whether A&E’s operations were completed. Under res judicata, “a final judgment by a court of competent jurisdiction is conclusive upon the parties in a subsequent litigation involving-the same cause of action.” Eastern Marine Const. Corp. v. First Southern Leasing, 129 N.H. 270, 273, 525 A.2d 709, 711-12 (1987) (citations and quotation omitted); see also Barton v. Barton, 125 N.H. 433, 435, 480 A.2d 199, 200 (1984) (res judicata applies to proceedings following default judgments). The term “cause of action” is defined as “the right to recover, regardless of the theory of recovery.” Eastern Marine Const. Corp., supra at 274, 525 A.2d at 712.

We hold that the underlying tort action did not involve the same cause of action as the declaratory judgment action from which the plaintiffs now appeal. In the tort action, the court had to determine whether A&E was liable to the plaintiffs for the slipping incident. In the declaratory judgment action, the court had to determine whether the insurance policy underwritten by USF&G entitled A&E to coverage. The declaratory judgment action did not involve A&E’s liability to the plaintiffs and was, therefore, completely independent of the plaintiffs’ right to recover from A&E for injuries incurred.

The plaintiffs also argue that the doctrine of collateral estoppel barred USF&G from litigating the completed operations issue in the declaratory judgment proceeding. We disagree. Collateral estoppel “bars a party to a prior action, or a person in privity with such a party, from relitigating any issue or fact actually litigated and determined in the prior action.” Daigle v. City of Portsmouth, 129 N.H. 561, 570, 534 A.2d 689, 693 (1987) (emphasis added). “In the case of a judgment entered by ...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Marie Miller v. Nationstar Mortgage
2012 DNH 130 (D. New Hampshire, 2012)
Qualters v. Winchester
2005 DNH 014 (D. New Hampshire, 2005)
Torromeo v. Fremont
2004 DNH 148 (D. New Hampshire, 2004)
McNair v. McNair
856 A.2d 5 (Supreme Court of New Hampshire, 2004)
Donovan v. Greenfield
2002 DNH 187 (D. New Hampshire, 2002)
Patterson v. Patterson
306 F.3d 1156 (First Circuit, 2002)
Blevens v. Town of Bow
767 A.2d 446 (Supreme Court of New Hampshire, 2001)
West Gate Village Ass'n v. Dubios
145 N.H. 293 (Supreme Court of New Hampshire, 2000)
Stephan v. Rocky Mountain Chocolate Factory
129 F.3d 414 (Seventh Circuit, 1997)
Stephan v. Rocky Mountain Chocolate Factory, Inc.
129 F.3d 414 (Seventh Circuit, 1997)
Angus v. Wald (In Re Wald)
208 B.R. 516 (N.D. Alabama, 1997)
Gadson v. Royal/Concord Gardens
D. New Hampshire, 1996
Raineri v. Hills. Cty. Correct.
D. New Hampshire, 1996
Kelley v. City of Manchester
D. New Hampshire, 1995
M.A. Crowley Trucking, Inc. v. Moyers
665 A.2d 1077 (Supreme Court of New Hampshire, 1995)
White Mountain Cable Construction Corp. v. Transamerica Insurance
631 A.2d 907 (Supreme Court of New Hampshire, 1993)
Kerouac v. Federal Deposit Insurance
825 F. Supp. 438 (D. New Hampshire, 1993)
Stone v. Hamel
D. New Hampshire, 1993
In re Donovan
623 A.2d 1322 (Supreme Court of New Hampshire, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
609 A.2d 745, 135 N.H. 706, 1992 N.H. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marston-v-united-states-fidelity-guaranty-co-nh-1992.