Wells v. Acceptance Indemnity Insurance Company

Filing 23

///ORDER denying 20 Motion for Reconsideration re: 19 Order on Motion to Dismiss; denying 22 Motion for Leave to File. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

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,

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.
1

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.”
2

Found. for

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

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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.

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).
2

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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.

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