Hansen v. Sentry Insurance Company

Filing 21

///ORDER granting in part as to plaintiff's declaratory judgment claim in Count I under RSA 491:22 and otherwise denying 11 Motion to Dismiss. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Mark A. Hansen
v.

Civil No. 12-cv-466-JD
Opinion No. 2013 DNH 017

Sentry Insurance Company
O R D E R
Mark A. Hansen brought suit against his liability insurer,
Sentry Insurance Company, seeking coverage for claims brought
against Hansen by his former employer.

Sentry moves to dismiss

Count I of the complaint in which Hansen seeks a declaratory
judgment pursuant to RSA 491:22 and 28 U.S.C. § 2201 as to his
rights and Sentry’s obligations under the insurance policies.1
Hansen objects to the motion.

Standard of Review
After filing an answer to the complaint, a party may move
for judgment on the pleadings.2

Fed. R. Civ. P. 12(c).

The

court uses the same standard as is used for a motion to dismiss

1

RSA is used in place of New Hampshire Revised Statutes
Annotated.
2

Although Sentry titles its motion as a motion to dismiss,
it had filed its answer before filing the motion.

under Federal Rule of Civil Procedure 12(b)(6).
of N.H., 664 F.3d 8, 13 (1st Cir. 2011).

Collins v. Univ.

Under the applicable

standard, the court takes the well-pled allegations as true,
views all of the facts in the light most favorable to the nonmoving party, and determines whether the complaint alleges facts
to support a claim “that is plausible on its face.”

Downing v.

Glove Direct LLC, 682 F.3d 18, 22 (1st Cir. 2012) (internal
quotation marks omitted).
Hansen filed letters, deposition testimony, and an affidavit
in support of his opposition to Sentry’s motion.

“If, on a

motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56.”

Fed. R. Civ. P. 12(d).

To avoid an unnecessary delay in

resolving the issue raised by Sentry’s motion, the court excludes
from consideration the extrinsic matters filed by Hansen.

Discussion
Sentry moves to dismiss Hansen’s claim for a declaratory
judgment on the ground that the claim is untimely under RSA
491:22.

Hansen objects, arguing that his declaratory judgment

claim under § 2201 is unaffected by the time limitation in RSA
491:22 and that the limitation does not apply based on the
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tolling provision.

In its reply, Sentry acknowledges that Count

I can be maintained under § 2201 but argues that the claim under
RSA 491:22 must be dismissed.

A.

Declaratory Judgment under § 2201

The parties agree that the part of Hansen’s declaratory
judgment claim in Count I brought under § 2201 is not affected by
this motion.

B.

Declaratory Judgment under RSA 491:22

Under RSA 491:22,I, “[a]ny person claiming a present legal
or equitable right or title may maintain a petition against any
person claiming adversely to such right or title to determine the
question as between the parties, and the court’s judgment or
decree thereon shall be conclusive.”3

An action under RSA

491:22,I to determine insurance coverage must be “filed within 6
months after the filing of the writ, complaint, or other pleading
initiating the action which gives rise to the question . . . .”
RSA 491:22,III.

The time limitation will not apply, however,

3

The statute was amended effective January 1, 2013. Because
this action was filed before the amendment took effect and the
parties have not suggested that the amended version of the
statute would apply here, the pre-amendment version of RSA 491:22
governs.
3

“where the facts giving rise to such coverage dispute are not
known to, or reasonably discoverable by, the insurer until after
expiration of such 6-month period . . . [or] the failure to file
such petition was the result of accident, mistake or misfortune
and not due to neglect.”4

Id.

In that event, the declaratory

judgment action must be filed “within a reasonable time frame.”
Binda v. Royal Ins. Co., 144 N.H. 613, 616 (2000).
Wilcox Industries filed suit against Hansen in this court on
November 28, 2011.
(Nov. 28, 2011).

Wilcox Indus. Corp. v. Hansen, 11-cv-551-PB
On March 5, 2012, Hansen, through counsel,

tendered the defense in the Wilcox suit to Sentry.

Sentry issued

a denial of coverage letter on March 13, 2012, stating that the
claims against Hansen were not covered, in part, because the
conduct alleged in the underlying complaint occurred when Hansen
was no longer a Wilcox employee.

As a result, Hansen was not an

insured under the Sentry policy during the time of the conduct
alleged in the underlying action.
Hansen re-tendered the defense to Sentry on August 14, 2012,
based on, among other things, rulings in the underlying suit and
the June 5, 2012, deposition testimony of Wilcox’s CEO, James

4

The New Hampshire Supreme Court has broadened the late
discovery exception to include insureds as well as insurers.
Mottolo v. U.S. Fidelity & Guar. Co., 127 N.H. 279, 282 (1985).
4

Teetzel.

Sentry again denied coverage on August 24, 2012.

Hansen filed this action on November 30, 2012.
Hansen did not bring suit in this case, which includes a
claim under RSA 491:22, within six months after the Wilcox suit
was filed against him.

In opposing Sentry’s motion to dismiss,

Hansen argues that the facts giving rise to the coverage dispute
were not known or reasonably discoverable until June 5, 2012,
when Teetzel was deposed.

Hansen represents that Teetzel

testified in his deposition that Wilcox’s claims against Hansen
were based, at least in part, on statements he made after Hansen
formed his own company but before he was terminated from his
position at Wilcox.

Based on that testimony, Hansen argues that

the circumstances in this case fit the late discovery exception
under RSA 491:22,III, as applied in Binda, 144 N.H. at 618-20,
because Teetzel’s testimony changed both Hansen’s and Sentry’s
understanding of Wilcox’s false statements claim and
recharacterized the claim for purposes of the Wilcox suit.
Sentry states that Teetzel’s testimony about Hansen’s
statements was equivocal at best.

Sentry also contends that the

late discovery exception does not apply because Hansen should
have known, on his own, when he made the statements that are the
basis of Wilcox’s claims.

Further, Sentry contends that Binda

does not apply in these circumstances.
5

In Binda, the insured was sued after he assaulted the town
police chief.

144 N.H. at 614.

September of 1995.

The writ was returnable in

In March of 1996, the insurer sent the

insured a letter, acknowledging receipt of the writ and stating
that it would undertake an investigation to determine whether the
insured’s conduct was intentional, which would not be covered by
the policy.

On May 16, 1996, the insurer denied coverage.

Id.

In October of 1996, the plaintiffs in the underlying action
moved to amend their writ to add claims of negligence, and the
motion was granted on December 16, 1996.

The insured filed a

declaratory judgment action on November 15, 1996, seeking
coverage for the underlying action.

The insurer moved to dismiss

on the ground that the declaratory judgment action was not timely
filed.

Id.

Because the insured did not bring the declaratory action
within six months of when the writ in the underlying action was
filed, the New Hampshire Supreme Court considered whether the
late discovery exception applied.

The court held that the

insured had notice of the coverage dispute when the insurer sent
him the March 1996 letter.

Id. at 617.

The court further held

that the petition for a declaratory judgment was not filed within
a reasonable time after that notice because more than six months
had passed, which “was not reasonable as a matter of law.”
at 618.
6

Id.

The court held, however, that the amendment of the
underlying writ in December of 1996, which added allegations of
negligence, restarted the six-month limitation period under RSA
491:22,III.

Id. at 620.

The court gave the insured sixty days

from the date of the decision to file a declaratory judgment
action.

Id. at 621.

In this case, Hansen argues that Teetzel’s deposition
testimony in June of 2012 introduced the possibility of coverage
for the first time because Teetzel testified that Hansen’s
statements were made while he was employed by Wilcox.

Wilcox did

not amend the complaint in the underlying suit, however.
Therefore, Hansen provides no basis to restart the six-month
limitation period as occurred in Binda.
Instead, the late discovery exception would apply if
Teetzel’s deposition testimony meets the standard of “facts
giving rise to such coverage dispute [that were] not known to, or
reasonably discoverable by [Hansen].”

RSA 491:22,III.

In that

event, the claim under RSA 491:22 would be timely if suit were
filed within a reasonable time after June 5, 2012.
144 N.H. at 617-18.
2012.

See Binda,

Hansen did not file suit until November 30,

The delay of almost six months was not reasonable.

Therefore, the claim in Count I for a declaratory judgment
under RSA 491:22 is barred by the time limitation.
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Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document no. 11) is granted as to the plaintiff’s declaratory
judgment claim in Count I under RSA 491:22 and is otherwise
denied.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
February 7, 2013
cc:

Michael F. Aylward, Esquire
Stephen B. Mosier, Esquire
Clark Proffitt, Esquire
Todd A. Sullivan, Esquire

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