Cam-Sam Real Estate Holding, LLC v. Merchants Mutual Insurance Company et al

Filing 58

///ORDER granting 42 Motion for Summary Judgment. For the foregoing reasons, and for those given in defendant's memorandum in support of its motion, Sentinel's motion for summary judgment (document no. 42) is GRANTED. So Ordered by Judge Steven J. McAuliffe. (lw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Cam-Sam Real Estate Holding, LLC,
Plaintiff
Case No. 18-cv-433-SM
Opinion No. 2019 DNH 107

v.
Merchants Mutual Insurance Company
and Hartford Fire Insurance Company,
Defendants
Sentinel Insurance Company, Ltd.
a/k/a Hartford Fire Insurance Company,
Counter Claimant and
Third Party Plaintiff
v.
Cam-Sam Real Estate Holding, LLC,
Counter Defendant,
and
D La Pooch Hotel, LLC, n/k/a
D La Pooch Resort, LLC, and
Lindsey Todt,
Third Party Defendants

O R D E R
In this insurance coverage dispute, Sentinel Insurance
Company, Limited (improperly named as Hartford Fire Insurance
Company) (“Sentinel”) moves for summary judgment that Sentinel
has no obligation to provide coverage, and no duty to defend or
indemnify with regard to the claims asserted in the complaint.
Cam-Sam Real Estate Holding, LLC, (“Cam-Sam”) and D La Pooch

Hotel, LLC, (“D La Pooch”), along with Lindsey Todt, object.
For the reasons discussed, Sentinel’s motion is granted.

Background
Cam-Sam is the owner of a multi-unit commercial building
and property located at 21 Londonderry Turnpike, in Hooksett,
New Hampshire.

On June 2, 2016, Cam-Sam rented Unit 1 of the

building to D La Pooch for a term of five years.

D La Pooch

operated a pet daycare and grooming business in the leased
premises.

The lease between Cam-Sam and D La Pooch required D La
Pooch to obtain “comprehensive liability insurance on the Leased
Premises” carried “in the name of and for the benefit of Tenant
and Landlord,” written on “an occurrence” basis.
15, ¶ 10.

Document No.

The lease further mandated the following with respect

to coverage: at least $1,000,000 “in case of death or injury to
one person;” $1,000,000 “in case of death or injury to more than
one person in the same occurrence;” and $250,000 “in case of
loss, destruction or damage to property.”

Document No. 15, ¶

10.

D La Pooch obtained insurance coverage from Sentinel.

The

policy issued by Sentinel consists of three types of coverage:
(1) Commercial General Liability/Pet Groomer’s Professional

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Liability; (2) Workers Compensation and Employers’ Liability;
and (3) Building and Business Personal Property.

The Commercial

General Liability coverage and Building and Business Personal
Property coverage both fall within policy number “81 SBA PP8836”
(the “Policy”).

The Worker’s Compensation and Employers’

Liability coverage is policy number 81WECBQ7144.

Cam-Sam is an

additional insured with regard to the Policy’s Commercial
General Liability coverage.

Cam-Sam contends that, during its tenancy, D La Pooch
caused extensive damage and contamination of Unit 1 by, inter
alia, failing to properly clean up after the pets, and failing
to exercise reasonable care in its use of the plumbing and water
fixtures.

After unsuccessfully attempting to work with D La

Pooch to solve the problem, Cam-Sam began eviction proceedings.
D La Pooch vacated Unit 1 on or about August 20, 2017.
then discovered the extent of the damage.
contaminated by pet urine and feces.

Cam-Sam

Unit 1 was severely

And, water from

overflowing toilets and spillage/seepage had caused substantial
damage.

Those damages required significant repairs, including:

removal of all building materials from Unit 1 down to the
building’s shell; remediation of odor, mold and bacteria in the
air and duct system; and shot blasting the concrete floor.

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Cam-Sam filed suit against D La Pooch, asserting claims for
negligence and breach of contract.

Cam-Sam contends that D La

Pooch breached its lease agreement with Cam-Sam by:
•

Failing to make monthly rental and fit-up payments;

•

Allowing noxious fumes to permeate the building
materials;

•

Injuring and defacing Unit 1;

•

Allowing dog urine and feces to permeate into Unit 1’s
building materials;

•

Engaging in “extra hazardous” activities by failing to
properly contain and clean up dog urine, feces and
other noxious waste;

•

Failing to return Unit 1 to Cam-Sam in the “same
condition . . . as at the commencement of the term;”
and

•

Breaching the lease by vacating the premises before
expiration of the lease term.

Document No. 10, Exh. 2.

In support of its negligence claim,

Cam-Sam alleges that Cam-Sam breached its duty to exercise
reasonable care in the operation of its business by failing to
regularly clean up animal waste, or take precautions to prevent
its escape into the building’s materials.

Cam-Sam also sought

contractual attorney’s fees, and to hold Lindsey Todt, D La
Pooch’s owner, personally liable for all sums due under the
lease (under a personal guarantee executed by Todt).

Id.

In

response, D La Pooch and Todt asserted counterclaims against
Cam-Sam for breach of contract, and breach of the implied

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covenant of good faith and fair dealing.

See Document No. 10,

Exh. 3.

Cam-Sam also filed this declaratory judgment action against
Merchants Mutual, Cam-Sam’s insurer, and Sentinel.

Sentinel now

seeks summary judgment, contending that it has no coverage
obligations under its policy.

Legal Standard
When ruling on a motion for summary judgment, the court
must “constru[e] the record in the light most favorable to the
nonmoving party and resolv[e] all reasonable inferences in that
party’s favor.”
(1st Cir. 2014).

Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301
Summary judgment is appropriate when the

record reveals “no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

In this context, “[a]n issue is ‘genuine’ if it

can be resolved in favor of either party, and a fact is
‘material’ if it has the potential of affecting the outcome of
the case.”

Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206,

215 (1st Cir. 2016) (citations and internal punctuation
omitted).

Nevertheless, if the non-moving party’s “evidence is

merely colorable, or is not significantly probative,” no genuine
dispute as to a material fact has been proved, and “summary
judgment may be granted.”

Anderson v. Liberty Lobby, Inc., 477
5

U.S. 242, 249–50 (1986) (citations omitted).

In other words,

“[a]s to issues on which the party opposing summary judgment
would bear the burden of proof at trial, that party may not
simply rely on the absence of evidence but, rather, must point
to definite and competent evidence showing the existence of a
genuine issue of material fact.”

Perez v. Lorraine Enterprises,

Inc., 769 F.3d 23, 29–30 (1st Cir. 2014).

The key, then, to defeating a properly supported motion for
summary judgment is the non-movant’s ability to support his or
her claims concerning disputed material facts with evidence that
conflicts with that proffered by the moving party.
generally Fed. R. Civ. P. 56(c).

See

It naturally follows that

while a reviewing court must take into account all properly
documented facts, it may ignore a party’s bald assertions,
speculation, and unsupported conclusions.

See Serapion v.

Martinez, 119 F.3d 982, 987 (1st Cir. 1997).

Analysis
“The interpretation of insurance policy language, like any
contract language, is ultimately an issue of law for this court
to decide.”

Mellin v. N. Sec. Ins. Co., Inc., 167 N.H. 544, 547

(2015) (quoting Amica Mut. Ins. Co. v. Mutrie, 167 N.H. 108, 111
(2014)).

“Policy terms are construed objectively; and where the

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terms are clear and unambiguous, we accord the language its
natural and ordinary meaning.”

Mellin, 167 N.H. at 547 (quoting

Barking Dog v. Citizens Ins. Co. of America, 164 N.H. 80, 83
(2012)).

“Where disputed terms are not defined in the policy,

we construe them in context, and in the light of what a more
than casual reading of the policy would reveal to an ordinarily
intelligent insured.”

Mellin, 167 N.H. at 547 (quoting Great

Am. Dining v. Philadelphia Indem. Ins. Co., 164 N.H. 612, 625,
(2013)).

As mentioned, the Policy consists of three parts: (1)
Commercial General Liability/Pet Groomer’s Professional
Liability; (2) Workers Compensation and Employers’ Liability;
and (3) Building and Business Personal Property.

Only two of

those parts are relevant to the parties’ dispute: the “Building
and Business Personal Property” coverage (“Property Coverage”),
which the Policy also calls “Special Property Coverage;” and the
Commercial General Liability coverage (“Liability Coverage”).

1.

Property Coverage

The Policy’s Property Coverage includes coverage for
physical damage to “Covered Property.”

Sentinel argues that

there is no Property Coverage for the alleged damage to the
leased premises because the premises do not qualify as “Covered

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Property” under the Policy.

The Policy defines “Covered

Property” as “property for which a Limit of Insurance is shown
in the Declarations,” including “Buildings” and “Business
Personal Property.”

Document No. 10-1, p. 28.

And, the Policy

defines “Buildings” as “only building(s) and structure(s)
described in the Declarations.”

Id.

Turning then to the section of the Declarations pertaining
to “Building and Business Personal Property,” with respect to
“Buildings,” the Declarations expressly state: “no coverage.”
Id., at p. 10, 12.

The Declarations provide coverage for

“Business Personal Property” up to $9,200, and for “Money and
Securities,” inside and outside the premises totaling $15,000.
D La Pooch also elected to buy optional property coverage,
including $20,000 in Animal Bailee coverage (with a $2,500
limit/animal), up to $21,000 in coverage for “Tenant
Improvements and Betterments,” and “Limited Fungi, Bacteria or
Virus Coverage” up to $50,000.

Thus, D La Pooch did not

purchase property insurance to cover the leased premises.
Instead, D La Pooch obtained “personal property” insurance.

Id.

The Policy’s Declarations are unambiguous.

There is some confusion among the parties due to the
multiple types of coverage provided by Sentinel in the Policy.
Cam-Sam, for example, conflates the Policy’s Property Coverage
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with the Policy’s Liability Coverage in support of its position
that its damages are covered.

As Sentinel points out, Cam-Sam

relies on language from the Declarations concerning the Policy’s
Liability Coverage (specifically, language which provides
coverage for “Damage to Premises Rented to You” of up to
$1,000,000).

However, that section of the Declarations setting

forth the Property Coverage that D La Pooch purchased is clear:
the Policy’s Property Coverage applies only to D La Pooch’s
personal property within the leased premises.

The damages

alleged by Cam-Sam do not fall within that coverage.

2.

Liability Coverage

Cam-Sam and D La Pooch fare no better under the Policy’s
Liability Coverage.

The Liability Coverage does, as the

Declarations state, cover property damage to “Premises Rented by
[D La Pooch]” of up to $1 million.

However, argues Sentinel,

that coverage is limited to premises that are rented by D La
Pooch for less than seven days.

D La Pooch’s Liability Coverage is set forth in the
“Business Liability Coverage Form.”

Sentinel is obligated to

“pay those sums that the insured becomes legally obligated to
pay as damages because of ‘bodily injury’, ‘property damage’ or
‘personal and advertising injury’ to which this insurance

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applies.”

Document No. 10-1, p. 55.

However, the form excludes

from coverage:

k.

Damage to Property
“Property damage” to:
(1)

Property you own, rent or occupy, including any
costs or expenses incurred by you, or any other
person, organization or entity, for repair,
replacement, enhancement, restoration or
maintenance of such property for any reason,
including prevention of injury to a person or
damage to another’s property.
. . .
Paragraph[] (1) . . . of this exclusion [does]
not apply to “property damage” (other than damage
by fire) to premises, including the contents of
such premises, rented to you for a period of 7 or
fewer consecutive days. A separate Limit of
Insurance applies to Damage to Premises Rented to
You as described in Section D. – Limits of
Insurance.

Document No. 10-1, p. 61.

Because the property at issue was

leased to D La Pooch for longer than seven days, argues
Sentinel, the limited exception does not apply.

“Normally, a liability policy does not cover damage to the
insured's property or property within his control.”

First

Londonderry Dev. Corp. v. CNA Ins. Companies, 140 N.H. 592, 594,
(1995).

“A primary function served by Owned or Leased Premises

Exclusion (k) ‘is to prevent the insured from using a liability
insurance policy as if it provided property insurance.”

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Dryden

Oil Co. of New England, Inc. v. Travelers Indem. Co., 91 F.3d
278, 284 (1st Cir. 1996) (quoting Kenneth S. Abraham,
Environmental Liability Insurance Law 163 (1991)).

Cf., Skorka

v. Amica Mut. Ins. Co., 132 N.H. 208, 210 (1989) (“Normally, a
liability policy does not cover damage to the insured's property
or property within his control.

If an insured desires coverage

on property that he owns or that is in his charge, he must
secure collision or comprehensive coverage and pay an additional
premium.”) (quoting Security Mut. Cas. Co. v. Johnson, 584
S.W.2d 703, 705 (Tex. 1979)).

The Owned or Leased Premises

Exclusion “likewise insulates against ‘the moral hazard problem
where an insured has less incentive to take precaution owing to
the existence of insurance.’”

Dryden Oil Co., 91 F. 3d at 284

(quoting Barry R. Ostrager & Thomas R. Newman, Handbook on
Insurance Coverage Disputes § 10.03[b], at 441 (8th ed. 1995))
(further quotations omitted).

Cam-Sam argues that the seven-day limitation is
inapplicable because it is not found in the Declarations, or in
the provided Certificate of Insurance.

D La Pooch goes a step

further, arguing that the seven-day limitation conflicts with
the Policy’s Declarations.

Neither argument is persuasive.

The Policy’s Declarations are not a complete description of
the coverage provided by the Policy.
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Instead, the Declarations

succinctly summarize the Policy’s terms.

See McGair v. Am.

Bankers Ins. Co. of Fla., 693 F.3d 94, 101 n.6 (1st Cir. 2012)
(“The description offered by the Declarations Page was only a
summary, subject to exclusions and limitations contained in the
policy itself.”).

The Declaration states that D La Pooch’s

Liability Coverage includes coverage for “Damages to Premises
Rented to You” of up to $1 million.

But, the Declarations also

state: “This Spectrum Policy consists of the Declarations,
Coverage Forms, Common Policy Conditions and any other Forms and
Endorsements issued to be a part of the Policy.”
10-1, p. 9.

Document No.

Finally, the Declarations expressly note the

application of Form SS 00 08 04 05, in which “Exclusions”
applicable to Business Liability Coverage are depicted,
including the Owned or Leased Premises Exclusion.

Id. at p. 16.

Thus, the Declarations make evident that other documents are
applicable to – and may affect – the coverage disclosed in the
Declarations pages.

Moreover, an insurance policy must be read “as a whole.”
Great Am. Dining, 164 N.H. at 619.

See also 2 Couch on Ins. §

21:19 (“Coverage of an insurance contract cannot be analyzed in
a vacuum; the policy must be construed in its entirety, with
each clause interpreted in relation to others contained
therein.”).

Read as a whole, the Policy covers damage to

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premises rented by D La Pooch, as the Declaration indicates.
But, the Policy unambiguously limits that coverage to premises
rented by D La Pooch for a period of less than seven days.

That the Policy’s exclusions operate to limit the coverage
provided does not necessitate a finding that the Declarations
and Policy are in conflict, or that the Policy is ambiguous.
Cf., Merchants Ins. Grp. v. Warchol, 132 N.H. 23, 27 (1989) (“if
an insurance policy contains an exclusion purporting to limit a
broad general grant of coverage, the exclusion must be ‘in terms
which would effectively convey [it] to a reasonable person in
the position of the insured.’”) (quoting Royal Globe Ins. Co. v.
Poirer, 120 N.H. 422, 427 (1908) (further quotations omitted)).
Indeed, the language of the Owned or Leased Premises Exclusion
is not ambiguous; it precludes coverage for the damage at issue.
See First Londonderry Dev. Corp., 140 N.H. at 595 (“When an
exclusion purporting to limit a general grant of coverage is in
terms that would effectively convey its meaning to a reasonable
insured, it will ordinarily be given effect.”) (citations
omitted).

3.

Third Part Liability Coverage

Finally, Cam-Sam’s claims against D La Pooch concerning
breach of the lease, contractual attorney’s fees and Todt’s
personal guarantee are not covered by the Policy.
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Those claims

seek damages for economic losses (lost rent), not damages due to
“bodily injury,” or “property damages” or “personal and
advertising injury,” as defined by the Policy.

Nor do those

claims constitute an “occurrence” under the Policy.

Similarly,

D La Pooch’s claims against Cam-Sam are claims for economic
losses, and are not covered by the Policy.

Conclusion
For the foregoing reasons, and for those given in
defendant’s memorandum in support of its motion, Sentinel’s
motion for summary judgment (document no. 42) is GRANTED.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
July 8, 2019
cc:

David W. Rayment, Esq.
Jeffrey Christensen, Esq.
Doreen F. Connor, Esq.
Michele Carlucci Sears, Esq.
Laura Nicole Carlier, Esq.
Richard E. Heifetz, Esq.

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