Cogswell Farm Condominium Association v. Tower Group, Inc. & a., 167 N.H. 245

Cogswell Farm Condominium Association seeks declaratory judgment that Lemery Building’s policies issued by Acadia and Tower cover Cogswell’s underlying claims against Lemery for defective weather barrier construction.
Lemery constructed 24 condo units from 2000–2003; Acadia issued a policy (2000–2002) and Tower issued a policy (2002–2003) for Lemery’s work.
Cogswell sued Lemery in 2009 for negligence, breach of contract, and negligent supervision related to weather barriers.
Cogswell filed the declaratory judgment action against Tower (2011) and later Acadia joined; the trial court held exclusions J(1) and J(6) precluded coverage for the claims against Lemery.
The trial court reserved the damages/occurrence issues for a jury and then, on reconsideration, held exclusions J(1) and J(6) applied to bar coverage; Cogswell appealed.
On appeal, the New Hampshire Supreme Court reversed and remanded, holding exclusions J(1) and J(6) had nuanced applications and that J(6) created an ambiguity and should be construed against the insurer.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does exclusion J(1) bar coverage for post-sale unit damages?	Cogswell argues J(1) does not apply to post-sale damages.	Tower/Acadia argue J(1) excludes all property damage Lemery owned, rented, or occupied, including sold units if damaged.	J(1) does not bar post-sale damages; remand to determine which units were sold during policy periods.
Does exclusion J(6) bar all coverage or only damaged defective parts?	Cogswell contends J(6) should not bar damage to non-defective parts caused by the defective weather barriers.	Tower/Acadia contend J(6) bars all damage caused by Lemery’s defective work.	J(6) is ambiguous; it bars damage to defectively constructed parts but does not bar damage to non-defectively constructed parts damaged by the defective work; damages to non-defectively constructed parts may be covered on remand.
Is the products-completed operations hazard exception relevant to J(6)?	Not argued; Cogswell asserts the exception applies.	Policy language and exclusions govern; products-completed operations could apply if applicable.	Not addressed because J(6) already resolved in plaintiff’s favor on ambiguity; remand for extent of non-barred damages.
Was the occurrence issue preserved for review?	Cogswell contends occurrence evidence supports coverage.	Respondents argued this issue was waived for lack of preservation.	Issue waived; appellate review limited to preserved arguments.

Rivera v. Liberty Mut. Fire Ins. Co., 163 N.H. 603 (2012) (burden on insurer in insurance-declaratory actions; language interpretation is legal)
Great Am. Dining v. Philadelphia Indem. Ins. Co., 164 N.H. 612 (2013) (ambiguity construed against the insurer; plain-policy-language approach)
Colony Ins. Co. v. Dover Indoor Climbing Gym, 158 N.H. 628 (2009) (ambiguity in policy language construed against insurer)
Preferred Nat’l Ins. Co. v. Docusearch, 149 N.H. 759 (2003) (insurance companies may limit liability with clear policy language)
Sklar Realty v. Town of Merrimack, 125 N.H. 321 (1984) (issues should be raised early; fairness to parties)
Gulf Ins. Co. v. AMSCO, 153 N.H. 28 (2005) (review of arguments not adequately raised below deemed waived)