One Beacon Insurance v. M&M Pizza, Inc.

160 N.H. 638
CourtSupreme Court of New Hampshire
DecidedAugust 19, 2010
DocketNo. 2009-533
StatusPublished
Cited by3 cases

This text of 160 N.H. 638 (One Beacon Insurance v. M&M Pizza, Inc.) 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
One Beacon Insurance v. M&M Pizza, Inc., 160 N.H. 638 (N.H. 2010).

Opinion

DUGGAN, J.

The defendant, M&M Pizza, Inc., appeals an order of the Superior Court {McHugh, J.), denying its motion for summary judgment and granting summary judgment in favor of the plaintiff, One Beacon Insurance, LLC. We affirm in part, reverse in part, and remand.

The following facts appear in the trial court’s order on the parties’ motions for summary judgment. M&M owns and operates a Domino’s Pizza franchise located in a strip mall at 61 Crystal Avenue in Derry. Centercorp Retail Properties, Inc. owns the property and is M&M’s commercial landlord. In November 2002, Nathaniel Box, an M&M employee, slipped and fell behind the premises. During the evening dinner rush, M&M required its delivery employees to park behind the mall and enter through the rear door of the pizzeria. In compliance with this policy, after returning [640]*640from a pizza delivery, Box parked near the rear door to the pizzeria. While walking around the front of his vehicle, he slipped and fell on ice and was injured.

Box sued Centercorp and other parties, but did not sue M&M. Following mediation, Centercorp settled with Box. One Beacon, Centercorp’s insurer and subrogee, paid Box $185,000 to release his claims against Centercorp. Although One Beacon invited M&M to attend the mediation, M&M declined to do so. Subsequently, One Beacon brought suit against M&M, seeking indemnification for payments it made to Box on behalf of Centercorp. M&M moved for summary judgment, and One Beacon filed a cross-motion for summary judgment. The trial court granted judgment in favor of One Beacon. The trial court denied M&M’s motion for reconsideration, and this appeal followed.

When reviewing the trial court’s grant of summary judgment, we consider the affidavits and other evidence, and inferences properly drawn from them, in the light most favorable to the non-moving party. S. N.H. Med. Ctr. v. Hayes, 159 N.H. 711, 715 (2010). If this review does not reveal any genuine issues of material fact, i.e., facts that would affect the outcome of the litigation, and if the moving party is entitled to judgment as a matter of law, we will affirm. Id. We review the trial court’s application of the law to the facts de novo. Id.

M&M raises two arguments on appeal: (1) that its lease with Centercorp did not require it to indemnify One Beacon for Box’s injuries; and (2) that, although M&M did not attend the mediation between Centercorp and Box, M&M did not waive its right to challenge the subsequent settlement. We address each of M&M’s arguments in turn.

First, M&M argues that section seventeen of the lease does not require it to indemnify One Beacon for Box’s injuries because they occurred outside the pizzeria, and neither Box’s, nor M&M’s, action involved the use or operation of the premises at the time of his injury. One Beacon counters that indemnification is required under section seventeen because: (1) Box’s delivery work was an integral part of M&M’s pizza operations; (2) Box was employed by M&M; (3) Box was acting within the scope of his employment when he was injured; and (4) Box parked behind the rear entrance pursuant to M&M policy.

The interpretation of the language of a lease, like any contract language, is ultimately an issue for the court to decide. Cf. Merchants Mut. Ins. Co. v. Laighton Homes, 153 N.H. 485, 487 (2006); Gulf Ins. Co. v. AMSCO, 153 N.H. 28, 34 (2005) (‘When there is an express contract for indemnity, the rights of the surety are not to be determined by general indemnity principles, but by the letter of the contract for indemnification.”). [641]*641Because the interpretation of a contract is a question of law, we review the trial court’s interpretation de novo. In the Matter of Taber-McCarthy & McCarthy, 160 N.H. 112, 115 (2010). When interpreting a written agreement, we give the language used by the parties its reasonable meaning, considering the circumstances and the context in which the agreement was negotiated, and reading the document as a whole. Id.

Absent ambiguity, we determine the parties’ intent from the plain meaning of the language used in the contract. Id. The words and phrases used by the parties will be assigned their common meaning, and we will ascertain the intended purpose of the contract based upon the meaning that would be given to it by a reasonable person. Found, for Seacoast Health v. HCA Health Servs. of N.H., 157 N.H. 487, 492 (2008). We construe express indemnity agreements narrowly, Dunn v. CLD Paving, 140 N.H. 120, 122 (1995), particularly when they purport to shift responsibility for an entity’s negligence to another. Merrimack School Dist. v. Nat'l School Bus Serv., 140 N.H. 9, 12 (1995).

Section seventeen of the lease provides that M&M must “indemnify and save [Centercorp] harmless from and against any and all liability and damages, costs and expenses, including reasonable counsel fees, and from and against any and all suits, claims and demands of any kind or nature ... growing out of the condition, maintenance, repair, alteration, use, occupation or operation of the leased premises.” We have interpreted the phrase “growing out of’ as synonymous with “arising out of.” Pro Con Constr. v. Acadia Ins. Co., 147 N.H. 470, 472 (2002); see also Philbrick v. Liberty Mut. Fire Ins. Co., 156 N.H. 389, 391 (2007).

In Pro Con, we examined a commercial general liability policy, which provided that:

WHO IS AN INSURED is amended to include as an insured any person or organization for whom you are performing operations if you and such person or organization have agreed in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured.

Pro Con, 147 N.H. at 471. In Pro Con, we reasoned that, “to warrant coverage arising out of [the] ongoing operations performed for Pro Con, the ongoing operations need not have been the proximate cause of the injuries but the causal connection between the two must be more than tenuous.” Id. at 472; see also Akerley v. Hartford Ins. Group., 136 N.H. 433, 439 (1992). In other words, “some causal nexus must link [the] ongoing operations and [642]*642the injuries.” Pro Con, 147 N.H. at 472. “While the causal connection need not be ‘proximate’ as that term is used in the more demanding evidentiaryarea of tort law, the causal connection must still exist.” Id.

Applying this standard, the trial court here concluded that “Box’s delivery mission and the location where he parked his car . . . were” governed by the indemnification provision because they were “circumstances ‘growing out of the . . . use, occupation or operation of the leased premises.’ ” We agree. According to the lease, M&M used the premises as “a bakery, store, and carry-out for pizza and related foods and beverages and those items customarily sold ... in a Domino’s Pizza store and for all other operations necessary or incidental to the conduct of its business.” Given that the pizzeria offered delivery services to its customers, “[t]he delivery of pizza and related products” was “an operation ‘necessary or incidental to the conduct’ ” of the pizzeria.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
160 N.H. 638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/one-beacon-insurance-v-mm-pizza-inc-nh-2010.