UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Missy J, LLC
v. Case No. 21-cv-848-SE Opinion No. 2022 DNH 157 Westchester Surplus Lines Insurance Company
O R D E R
In July 2020, a young boy was injured when a dog attacked
him in an apartment complex owned by Missy J, LLC. After the
boy’s mother brought suit on his behalf against Missy J to
recover for his injuries, Missy J sought coverage from its
insurer, Westchester Surplus Lines Insurance Company, under its
commercial general liability policy. Westchester denied coverage
and refused to defend Missy J in the lawsuit, relying on an
“Animals Exclusion” provision in the policy.
Missy J filed a declaratory judgment action in New
Hampshire state court against Westchester seeking a ruling that
the parties’ commercial liability policy provided coverage for
the lawsuit against Missy J and the boy’s injuries. Westchester
removed the case to this court. Both parties now move for
summary judgment.
The court held a hearing on the parties’ motions on
December 16, 2022. After consideration of the parties’ filings
and arguments, the court grants Westchester’s motion and denies
Missy J’s motion. Standard of Review
The court treats cross-motions for summary judgment
separately, drawing inferences in the nonmoving party’s favor.
AJC Intern., Inc. v. Triple-S Propiedad, 790 F.3d 1, 3 (1st Cir.
2015). Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A material fact is one that “carries with it the
potential to affect the outcome of the suit.” French v. Merrill,
15 F.4th 116, 123 (1st Cir. 2021) (quotation omitted). A
material fact is in genuine dispute if “a reasonable jury could
resolve the point in the favor of the non-moving party.” Id. In
considering a motion for summary judgment, the court may review
materials cited in the motion and other materials in the record.
Fed. R. Civ. P. 56(c)(1)(3).
Background
There are no disputed facts in this case. Missy J owns an
apartment complex in Manchester, New Hampshire. From January 9,
2020, to January 9, 2021, Westchester insured Missy J under a
commercial general liability insurance policy. Doc. no. 24-2.
The policy provides that Westchester “will pay those sums that
the insured becomes legally obligated to pay as damages because
of ‘bodily injury’ or ‘property damage’ to which this insurance
2 applies” and will have “the right and duty to defend the insured
against any ‘suit’ seeking those damages.” Id. at 77, Sec.
I(A)(1). An endorsement to the policy titled “Limitation of
Coverage to Designated Premises or Project” limits the policy’s
coverage to injuries, damages, and medical expenses arising out
of the “ownership, maintenance, or use of the premises shown in
the Schedule and operations necessary or incidental to those
premises.” Id. at 108. The Schedule shows the “premises” as the
complex’s address. Id.
The policy also lists certain injuries and damages for
which it does not provide coverage. Relevant here, the policy
includes an “Animals Exclusion” provision as follows:
This insurance does not apply to “bodily injury”, “property damage” or “personal and advertising injury” arising out of or resulting from the ownership, existence, maintenance, presence, training or use of animals on an insured’s premises or in an insured’s operations, including:
a. dogs;
. . .
This exclusion applies even if negligence or other wrongdoing is alleged in the supervision, hiring, employment, training, investigation, reporting to authorities, or monitoring of others by an insured if the “occurrence” which caused the “bodily injury”, “property damage”, or "personal and advertising injury" involves the ownership, existence, maintenance, presence, training or use of animals on an insured’s premises or in an insured’s operations.
Id. at 75.
3 On July 10, 2020, a pitbull attacked a young boy who was
visiting at one of the apartments in the complex. The boy’s
mother, Briona Reed-Sounia, brought suit against Missy J on her
son’s behalf. After initially defending Missy J in the action,
Westchester denied coverage on the basis of the policy’s animal
exclusion provision. This action followed.
Discussion
Missy J seeks a declaratory judgment that Westchester
wrongfully denied coverage for the dog attack at the complex. In
support, Missy J contends that the animal exclusion provision in
the policy is ambiguous and can reasonably be interpreted to
apply only to an animal Missy J or its agents owned, controlled,
or used in its operations (such as a guard dog). Missy J argues
that because the exclusion provision is ambiguous, the court
must construe it against the insurer and in favor of coverage.
Westchester disagrees and contends that the animal exclusion
provision is clear and unambiguous and precludes coverage for
the boy’s injuries because they arose from the existence or
presence of a dog on Missy J’s premises. Both parties move for
The interpretation of an insurance policy is a question
of law. Town of Londonderry v. N.H. Mun. Ass’n Prop. Liab. Ins.
Tr., Inc., 140 N.H. 440, 441 (1995). Insurance companies may
4 limit coverage through exclusions that are “written in clear and
unambiguous policy language.” Mellin v. N. Sec. Ins. Co., Inc.,
167 N.H. 544, 547 (2015). “[T]he burden of proving lack
of insurance coverage is on the insurer.” Maville v. Peerless
Ins. Co., 141 N.H. 317, 320 (1996) (quotation omitted).
Under New Hampshire law, when disputed terms are not
defined in a policy or by New Hampshire cases, the court
construes the terms in the context of the agreement as a whole
“as would a reasonable person in the position of the insured.”
Cath. Med. Ctr. v. Exec. Risk Indem., Inc., 151 N.H. 699, 701
(2005); accord Great Am. Dining, Inc. v. Phil. Indem. Ins. Co.,
164 N.H. 612, 625 (2013). Ambiguity exists in policy language
when there are two reasonable interpretations. White v. Vt. Mut.
Ins. Co., 167 N.H. 153, 157 (2014). The court construes
ambiguities in a policy in favor of coverage. Philbrick v.
Liberty Mut. Fire Ins. Co., 156 N.H. 389, 391 (2007).
Missy J and Westchester agree that Missy J’s liability for
the dog attack would have been covered under the policy but for
the animal exclusion provision. In other words, the parties
agree that the entire complex, including the apartments where
tenants live and where the dog attack occurred, is within the
scope of the liability coverage provided by the policy,
regardless of whether liability arose out of Missy J’s
operations.
5 The animal exclusion provision modifies the “commercial
general liability coverage” of the policy. Doc. no. 24-2 at 75.
It states that the insurance does not apply to “bodily injury”
arising out of or resulting from the “existence” or “presence”
“of animals on an insured’s premises,” including dogs. Id.
That plain language encompasses the factual circumstances for
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Missy J, LLC
v. Case No. 21-cv-848-SE Opinion No. 2022 DNH 157 Westchester Surplus Lines Insurance Company
O R D E R
In July 2020, a young boy was injured when a dog attacked
him in an apartment complex owned by Missy J, LLC. After the
boy’s mother brought suit on his behalf against Missy J to
recover for his injuries, Missy J sought coverage from its
insurer, Westchester Surplus Lines Insurance Company, under its
commercial general liability policy. Westchester denied coverage
and refused to defend Missy J in the lawsuit, relying on an
“Animals Exclusion” provision in the policy.
Missy J filed a declaratory judgment action in New
Hampshire state court against Westchester seeking a ruling that
the parties’ commercial liability policy provided coverage for
the lawsuit against Missy J and the boy’s injuries. Westchester
removed the case to this court. Both parties now move for
summary judgment.
The court held a hearing on the parties’ motions on
December 16, 2022. After consideration of the parties’ filings
and arguments, the court grants Westchester’s motion and denies
Missy J’s motion. Standard of Review
The court treats cross-motions for summary judgment
separately, drawing inferences in the nonmoving party’s favor.
AJC Intern., Inc. v. Triple-S Propiedad, 790 F.3d 1, 3 (1st Cir.
2015). Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A material fact is one that “carries with it the
potential to affect the outcome of the suit.” French v. Merrill,
15 F.4th 116, 123 (1st Cir. 2021) (quotation omitted). A
material fact is in genuine dispute if “a reasonable jury could
resolve the point in the favor of the non-moving party.” Id. In
considering a motion for summary judgment, the court may review
materials cited in the motion and other materials in the record.
Fed. R. Civ. P. 56(c)(1)(3).
Background
There are no disputed facts in this case. Missy J owns an
apartment complex in Manchester, New Hampshire. From January 9,
2020, to January 9, 2021, Westchester insured Missy J under a
commercial general liability insurance policy. Doc. no. 24-2.
The policy provides that Westchester “will pay those sums that
the insured becomes legally obligated to pay as damages because
of ‘bodily injury’ or ‘property damage’ to which this insurance
2 applies” and will have “the right and duty to defend the insured
against any ‘suit’ seeking those damages.” Id. at 77, Sec.
I(A)(1). An endorsement to the policy titled “Limitation of
Coverage to Designated Premises or Project” limits the policy’s
coverage to injuries, damages, and medical expenses arising out
of the “ownership, maintenance, or use of the premises shown in
the Schedule and operations necessary or incidental to those
premises.” Id. at 108. The Schedule shows the “premises” as the
complex’s address. Id.
The policy also lists certain injuries and damages for
which it does not provide coverage. Relevant here, the policy
includes an “Animals Exclusion” provision as follows:
This insurance does not apply to “bodily injury”, “property damage” or “personal and advertising injury” arising out of or resulting from the ownership, existence, maintenance, presence, training or use of animals on an insured’s premises or in an insured’s operations, including:
a. dogs;
. . .
This exclusion applies even if negligence or other wrongdoing is alleged in the supervision, hiring, employment, training, investigation, reporting to authorities, or monitoring of others by an insured if the “occurrence” which caused the “bodily injury”, “property damage”, or "personal and advertising injury" involves the ownership, existence, maintenance, presence, training or use of animals on an insured’s premises or in an insured’s operations.
Id. at 75.
3 On July 10, 2020, a pitbull attacked a young boy who was
visiting at one of the apartments in the complex. The boy’s
mother, Briona Reed-Sounia, brought suit against Missy J on her
son’s behalf. After initially defending Missy J in the action,
Westchester denied coverage on the basis of the policy’s animal
exclusion provision. This action followed.
Discussion
Missy J seeks a declaratory judgment that Westchester
wrongfully denied coverage for the dog attack at the complex. In
support, Missy J contends that the animal exclusion provision in
the policy is ambiguous and can reasonably be interpreted to
apply only to an animal Missy J or its agents owned, controlled,
or used in its operations (such as a guard dog). Missy J argues
that because the exclusion provision is ambiguous, the court
must construe it against the insurer and in favor of coverage.
Westchester disagrees and contends that the animal exclusion
provision is clear and unambiguous and precludes coverage for
the boy’s injuries because they arose from the existence or
presence of a dog on Missy J’s premises. Both parties move for
The interpretation of an insurance policy is a question
of law. Town of Londonderry v. N.H. Mun. Ass’n Prop. Liab. Ins.
Tr., Inc., 140 N.H. 440, 441 (1995). Insurance companies may
4 limit coverage through exclusions that are “written in clear and
unambiguous policy language.” Mellin v. N. Sec. Ins. Co., Inc.,
167 N.H. 544, 547 (2015). “[T]he burden of proving lack
of insurance coverage is on the insurer.” Maville v. Peerless
Ins. Co., 141 N.H. 317, 320 (1996) (quotation omitted).
Under New Hampshire law, when disputed terms are not
defined in a policy or by New Hampshire cases, the court
construes the terms in the context of the agreement as a whole
“as would a reasonable person in the position of the insured.”
Cath. Med. Ctr. v. Exec. Risk Indem., Inc., 151 N.H. 699, 701
(2005); accord Great Am. Dining, Inc. v. Phil. Indem. Ins. Co.,
164 N.H. 612, 625 (2013). Ambiguity exists in policy language
when there are two reasonable interpretations. White v. Vt. Mut.
Ins. Co., 167 N.H. 153, 157 (2014). The court construes
ambiguities in a policy in favor of coverage. Philbrick v.
Liberty Mut. Fire Ins. Co., 156 N.H. 389, 391 (2007).
Missy J and Westchester agree that Missy J’s liability for
the dog attack would have been covered under the policy but for
the animal exclusion provision. In other words, the parties
agree that the entire complex, including the apartments where
tenants live and where the dog attack occurred, is within the
scope of the liability coverage provided by the policy,
regardless of whether liability arose out of Missy J’s
operations.
5 The animal exclusion provision modifies the “commercial
general liability coverage” of the policy. Doc. no. 24-2 at 75.
It states that the insurance does not apply to “bodily injury”
arising out of or resulting from the “existence” or “presence”
“of animals on an insured’s premises,” including dogs. Id.
That plain language encompasses the factual circumstances for
which Missy J seeks coverage in this case: a visitor’s bodily
injury that arose out of the existence or presence of a dog on
Missy J’s premises, the complex.
Despite this straightforward language, Missy J contends
that the animal exclusion provision is ambiguous. It argues that
a reasonable person could read the provision to exclude from
coverage only injuries arising out of or resulting from an
animal Missy J owned, controlled, or used in its business, such
as a guard dog. In support of that contention, Missy J submits
the affidavit of Oscy Cadran, one of its members and managers,
in which Cadran states that he interpreted the animal exclusion
provision in that manner. See doc. no. 10-3. Missy J also notes
that the animal exclusion provision does not reference the
complex’s tenants or residents and argues that the provision’s
language is too complicated to be unambiguous.1
1 Missy J repeatedly refers to the exclusion provision as a “word salad” in its reply.
6 Those arguments ignore the policy’s plain language. As
Missy J asserts, the animal exclusion provision excludes from
the policy’s coverage bodily injury arising out of Missy J’s
ownership of an animal or its use of an animal in its
operations. But the provision is explicitly broader than those
circumstances. It also unambiguously excludes bodily injury that
arises out of an animal’s presence on Missy J’s premises, which
specifically includes the complex. See doc. no. 24-2 at 108. As
noted above, that language covers the exact factual
circumstances for which Missy J seeks coverage here: liability
it incurred because of the boy’s bodily injury that arose out of
a dog’s presence at the complex. Despite Missy J’s protestations
to the contrary, the animal exclusion provision is written in
clear and unambiguous language and excludes from the policy’s
coverage the incident at issue in this case. See Cafe Indigo,
LLC v. Pearl River Pastry, LLC, No. 20-CV-419-JL, 2020 WL
5026745, at *6 (D.N.H. Aug. 25, 2020) (“[P]arties cannot create
ambiguity from whole cloth where none exists, because provisions
are not ambiguous merely because the parties interpret them
differently.” (quotation omitted)). Therefore, Westchester has
carried its burden to show the absence of coverage under the
policy and is entitled to summary judgment.
7 Conclusion
For the foregoing reasons, Westchester’s motion for summary
judgment (document no. 15) is granted and Missy J’s motion for
summary judgment (document no. 10) is denied.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________ Samantha D. Elliott United States District Judge
December 19, 2022
cc: Counsel of record.