Wells v. Acceptance Indemnity Ins. Co.

2018 DNH 027

• Court: District Court, D. New Hampshire
• Decided: February 8, 2018
• Docket: 17-cv-669-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Noah Wells d/b/a Centerpoint Chimney

v. Civil No. 17-cv-669-JD Opinion No. 2018 DNH 027 Acceptance Indemnity Insurance Company

O R D E R

Acceptance Indemnity Insurance Company moves for

reconsideration of the court’s order denying its motion to

dismiss. In support, AIIC argues that the court erroneously

failed to dismiss Noah Wells’s claims based on two policy

exclusions. Wells objects.1

Standard of Review

Reconsideration of a prior order is appropriate only “‘if

the moving party presents newly discovered evidence, if there

has been an intervening change in the law, or if the movant can

demonstrate that the original decision was based on a manifest

error of law or was clearly unjust.’” United States v. Zimny,

1 AIIC moved for leave to file a reply. Under Local Rule 7.1(e)(1), AIIC was required to file its reply within seven days of service of the objection. The court has reviewed the proposed reply, which does not change the outcome, and denies the motion for leave to file a reply. 846 F.3d 458, 467 (1st Cir. 2017) (quoting United States v.

Allen, 573 F.3d 42, 53 (1st Cir. 2009)). For that reason, “[a]

motion for reconsideration is not the venue to undo procedural

snafus or permit a party to advance arguments it should have

developed [before the court issued its order].” Biltcliffe v.

CitiMorgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014). It is

also not “a mechanism to regurgitate old arguments previously

considered and rejected.” Id. (internal quotation marks

omitted).

Discussion

In his complaint, Wells seeks a declaration that AIIC, the

company that provided indemnity insurance for his business, owes

him a defense and indemnification in an underlying suit brought

by an agent of a subcontractor, and brings a claim that AIIC

breached the policy by denying coverage. AIIC moved to dismiss

the claims based on two exclusions in the policy that purport to

exclude coverage for injury to independent contractors. Wells

objected, arguing that the policy is at least ambiguous, based

on the declarations page and an endorsement that imposed a

special condition for coverage of independent contractors.

As explained previously, “[t]he language of a contract is

ambiguous if the parties to the contract could reasonably

disagree as to the meaning of that language.” Found. for

2 Seacoast Health v. Hosp. Corp. of Am., 165 N.H. 168, 172 (2013)

(internal quotation marks omitted). To determine whether an

ambiguity exists, the “court should examine the contract as a

whole, the circumstances surrounding execution and the object

intended by the agreement, while keeping in mind the goal of

giving effect to the intentions of the party.” Id. The process

of determining whether an ambiguity exists “necessarily involves

factual findings.” Sunapee Difference, LLC v. State, 164 N.H.

778, 790 (2013).

The court found that the cited provisions appeared to be at

odds with each other and that additional explanation was needed

to understand the operation of the policy as a whole. Because

of the limited context of a motion to dismiss, there was

insufficient information to determine what the policy covered or

whether it was ambiguous. AIIC contends that conclusion was

erroneous because interpretation of the policy is a legal

question and attempts to provide the additional explanation that

was lacking in the motion to dismiss.

In support, counsel for AIIC represents that the

“Declarations” part of the policy merely provides “rating

information” and cites a District of Rhode Island case to show

that “rating information” may be limited by exclusions in the

3 policy. Counsel then continues on to explain that the

Declarations do not grant coverage. Counsel also addresses the

purpose of the Independent Contractors Special Condition and

represents that it “compliments, rather than conflicts with, the

exclusionary provisions.”

As such, counsel for AIIC raises factual issues about the

meaning of the policy and the intent of the parties. Counsel

for AIIC attempts to augment the motion to dismiss by providing

explanation and information that was missing in the motion to

dismiss. It is far from clear that counsel is qualified to

provide opinions on the structure and operation of an insurance

policy or on the intent of the parties. In any event, such

information is not appropriate for purposes of a motion to

dismiss or a motion for reconsideration of the denial of a

motion to dismiss.2 Instead, these matters may be presented in

an appropriate format to be considered in the context of a

motion for summary judgment.

2 It is therefore not necessary or appropriate to hold a hearing to allow counsel to provide these opinions and theories through oral argument, as AIIC has requested. See LR 7.1(d).

4 Conclusion

For the foregoing reasons, the defendant’s motion for

reconsideration (document no. 20) and motion for leave to file a

reply (document no. 22) are denied.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

February 8, 2018

cc: Melissa Brill, Esq. Laura Dowgin, Esq. J. Bruce Maffeo, Esq. Peter J. Nicosia, Esq.