Michael Newell v. Markel Corporation & a.
169 N.H. 193
| N.H. | 2016Background
- On June 12, 2010, Michael Newell slipped on a wet bathroom floor at Brames, Inc., and later sued (settled with) Brames and separately sued Ivy Banks, a cleaner who had been maintaining the bathrooms during Motorcycle Week for tips.
- Brames was insured under an Amusement Park General Liability Policy issued by Essex Insurance Company (Essex); Markel Corporation and Markel Services are related entities (Essex is a subsidiary; Markel Services handles claims).
- Banks performed cleaning services for tips only (estimated $75–$100/day) under an arrangement with Brames’s co-owner; Banks neither sought nor received other payment and provided similar services elsewhere.
- Newell obtained a default judgment against Banks for $300,000 after Banks failed to appear; Banks had notice but Essex declined to defend or indemnify him.
- Newell sued Essex seeking coverage of the $300,000 default judgment, alleging Banks was an insured “volunteer worker” and that Essex breached the policy by failing to defend/indemnify; cross-motions for summary judgment followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Markel Corp. and Markel Services are proper defendants | Newell did not oppose Essex-only adjudication; case concerns Essex | Markel entities moved for summary judgment because they issued no policy and had no contract with Brames | Court reversed trial denial and remanded for summary judgment for Markel Corp. and Markel Services (they are not proper defendants) |
| Whether Banks "donates" his work (falls within "volunteer" definition) | "Donate" means act by choice/free will; must be read with other definition terms — supports volunteer status | "Donate" means give without consideration; Banks benefited from use of premises so did not "donate" services | Term is ambiguous; construed for coverage — favors Newell (Banks may be a volunteer) |
| Whether tips constitute "fee, salary or other compensation" (bar to volunteer) | Tips are gratuities, not compensation owed; policy language ambiguous and lacks "by you or anyone else" modifier | Tips amount to compensation under ordinary meaning and precedents equating tips with wages/compensation | Term ambiguous as applied; construed for coverage — tips do not necessarily bar volunteer status here |
| Whether Banks acted "at your direction" / within scope of duties | For unskilled work, "at your direction" can mean authorized/with knowledge and approval of policyholder; Banks was engaged by Brames to clean bathrooms | "At your direction" requires supervision, guidance, or orders; Brames did not supervise or instruct Banks | Phrase ambiguous in this context; construed for coverage — Banks acted at Brames’s direction for policy purposes |
Key Cases Cited
- Conant v. O’Meara, 167 A.3d 644 (N.H. 2015) (summary judgment standard and review)
- Great American Insurance Co. v. Christy, 164 A.3d 196 (N.H. 2012) (insurance policy interpretation is question of law)
- Colony Insurance Co. v. Dover Indoor Climbing Gym, 158 A.3d 628 (N.H. 2009) (policy terms construed objectively; ambiguities resolved against insurer)
- Great American Dining v. Philadelphia Indemnity Ins. Co., 164 A.3d 612 (N.H. 2013) (if more than one reasonable interpretation exists, construe for coverage)
- High Country Associates v. New Hampshire Ins. Co., 139 A.3d 39 (N.H. 1994) (ambiguities construed against insurer)
- North Carolina Farm Bureau Mutual Insurance v. Burns, 767 S.E.2d 109 (N.C. Ct. App. 2014) (construed “donate” in volunteer definition to require choice/free will)