Hansen v. Sentry Insurance Company

Filing 35

ORDER denying 23 Motion for Reconsideration. So Ordered by Judge Joseph A. DiClerico, Jr.(lt)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Mark A. Hansen
v.

Civil No. 12-cv-466-JD

Sentry Insurance Company
O R D E R
Mark A. Hansen moves for reconsideration of the court’s
order issued on February 7, 2013, in which that part of Hansen’s
declaratory judgment claim based on state law, RSA 491:22, was
dismissed.

In support of his motion, Hansen argues that the

court misapplied RSA 491:22,III to the circumstances of his
claim.

Sentry Insurance Company objects to reconsideration.

Standard of Review
Reconsideration of a prior order is “an extraordinary remedy
which should be used sparingly.”

Fabrica de Muebles J.J.

Alvarez, Inc. v. Inversiones Mendoza, Inc., 682 F.3d 6, 31 (1st
Cir. 2012) (internal quotation marks omitted).

In the context of

an interlocutory order, a party seeking reconsideration must
“demonstrate that the order was based on a manifest error of fact
or law . . . .”

LR 7.2(e).

Discussion
In granting Sentry’s motion to dismiss Hansen’s declaratory
judgment claim under RSA 491:22, the court concluded that the
claim was untimely and did not fall within the late discovery
exception provided in RSA 491:22,III.

Hansen contends that the

decision was based on a manifest error of law in interpreting
RSA 491:22,III.

Specifically, Hansen argues that under RSA

491:22,III he had six months to file his declaratory action from
June 5, 2012, when James Teetzel was deposed in the underlying
suit, or from August 24, 2012, when Sentry denied coverage based
on Hansen’s theory that James Teetzel’s testimony changed the
nature of the underlying claim against him.

Sentry objects to

reconsideration and contends that the court properly applied RSA
491:22,III and that in any case Teetzel’s deposition testimony
did not provide newly discovered facts within the meaning of RSA
491:22,III.
In the prior order, the court considered Hansen’s arguments
that Teetzel’s testimony provided newly discovered facts under
RSA 491:22,III which restarted the six-month limitation period
and, alternatively, that Hansen’s delay in filing the declaratory
judgment action was reasonable.

Without deciding whether

Teetzel’s testimony satisfied the requirement of new facts under
RSA 491:22,III, the court concluded that the filing was not
2

timely.

Hansen’s argument that the court cannot find that a

delay of less than six months was unreasonable is contrary to the
reasoning and holding in Binda v. Royal Ins. Co., 144 N.H. 613,
618 (2000).
Hansen also argues in support of reconsideration that the
court failed to consider his argument that he did not have notice
of the coverage dispute until Sentry rejected his second tender
on August 24, 2012, and that he was entitled to six months after
that date to file his declaratory judgment action.

As in the

context of Teetzel’s deposition, the six-month time period did
not restart because the complaint in the underlying case was not
amended.

See Binda, 144 N.H. at 618-21.

To the extent Hansen argues that he was entitled to a
reasonable time to file after first learning of facts leading to
a coverage dispute when Sentry rejected his second tender, the
facts do not support that theory.

Hansen argued in objecting to

Sentry’s motion to dismiss that Teetzel’s deposition provided new
information “that contradicted Sentry Insurance’s assumptions and
factual predicate for its March 13, 2012 denial letter.”
6.

Obj. at

Hansen also stated that Teetzel’s deposition testimony

provided “key predicate facts . . . giving rise to this coverage
dispute.”

Further, Hansen stated that “[t]he re-tender of

defense (and the facts predicated thereon), form a distinct and
3

independent basis for Hansen’s request for declaratory relief . .
. .”

Obj. at 7.
If Teetzel’s June 5, 2012, deposition testimony provided new

facts, Hansen knew of those facts and their import at the time of
the deposition.

“An insurer’s denial of coverage is not

necessary to render declaratory relief justiciable.”

Kierstead

v. State Farm Fire & Cas. Co., 160 N.H. 681, 687 (2010).
Instead, the time for filing a declaratory judgment action begins
when the insured “know[s] or [is] able to reasonably discover
facts which form the basis of a coverage dispute.”
N.H. at 616.

Binda, 144

Hansen lacks a factual basis to argue that he first

had notice of new facts giving rise to a coverage dispute when
Sentry rejected his second tender of the defense.
Because Hansen then waited until November 30, 2012, to file
his declaratory judgment claim under RSA 491:22, the claim was
untimely filed.

Hansen has not shown a manifest legal error in

the order granting Sentry’s motion to dismiss Hansen’s claim
under RSA 491:22.

4

Conclusion
For the foregoing reasons, the plaintiff’s motion for
reconsideration (document no. 23) is denied.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
April 17, 2013
cc:

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

5