137 A.3d 1115
N.H.2016Background
- Thomas Todd, an AMC member and webmaster, was accused in a New Hampshire stalking petition of hacking Sally Leonard’s computer and smashing her vehicle window; the court denied the petition after a hearing.
- Todd sought defense and indemnity from his Vermont Mutual homeowner’s and umbrella policies and from Hanover’s EPL and D&O policies (the AMC was Hanover’s insured).
- Vermont Mutual refused to defend, asserting the allegations did not allege an "occurrence" or covered "offense." Hanover refused, asserting Todd’s acts were outside his employment and not covered "wrongful acts."
- Todd sued for declaratory relief and reimbursement of defense fees; the superior court granted summary judgment to insurers and denied Todd’s cross-motions.
- The Supreme Court of New Hampshire affirmed, holding (1) alleged hacking and property damage were not accidental "occurrences" under Vermont Mutual’s policies and hacking did not fall within the umbrella provision for "invasion of private occupancy," and (2) Todd’s acts were outside the course and scope of AMC employment and outside the D&O policy’s “personal injury”/"wrongful act" coverage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vermont Mutual’s homeowner/umbrella policies must defend because the petition alleges an "occurrence" or covered "offense" | Todd: Alleged hacking and window-shattering could be accidental or ambiguous and thus trigger a duty to defend | Vermont Mutual: Policies cover only accidental "occurrences"; alleged hacking and intentional property damage are inherently injurious and not accidental; umbrella offense language concerns real-property invasions | Held: No duty to defend — hacking and breaking a window are inherently injurious (not accidental), and "invasion of private occupancy" is read as relating to real property, so umbrella does not cover hacking |
| Whether Hanover’s EPL policy covers Todd (acts within course and scope of employment) | Todd: Alleged misconduct arose from AMC membership/committee interactions and thus could be within course and scope | Hanover: Allegations (hacking, vandalism) are unrelated to webmaster or paddling-committee duties and were not to serve AMC | Held: No coverage — alleged acts were not of the kind performed for AMC nor actuated to serve AMC, so Todd was not an insured under EPL |
| Whether Hanover’s D&O policy covers Todd ("wrongful act" or "personal injury") | Todd: Hacking could be an "invasion of the right of privacy" and thus a personal injury/wrongful act; his conduct related to committee membership | Hanover: "Personal injury"/"invasion" language construed with "wrongful entry/eviction" limits it to real-property contexts; acts were not in his capacity for AMC | Held: No coverage — Todd was not acting in his capacity as an insured individual for AMC, and hacking does not fall within the policy’s definition of "personal injury" as construed in context |
| Choice of law (New Hampshire v. Massachusetts law for policy interpretation) | Todd: New Hampshire law should govern | Vermont Mutual: Massachusetts law may apply; court need not decide if NH analysis is correct | Held: Court applied New Hampshire law and resolved issues on that basis; choice-of-law analysis not necessary because NH-law interpretation controlled outcome |
Key Cases Cited
- Bovaird v. N.H. Dep’t of Admin. Servs., 166 N.H. 755 (standard for reviewing cross-motions for summary judgment)
- N. Sec. Ins. Co. v. Connors, 161 N.H. 645 (duty to defend determined by pleadings compared to policy terms; resolve doubt for insured)
- Amica Mut. Ins. Co. v. Mutrie, 167 N.H. 108 (definition/analysis of "occurrence" as "accident")
- Marikar v. Peerless Ins. Co., 151 N.H. 395 (two-part accidental-inquiry: subjective intent and objective inherently-injurious test)
- Vermont Mut. Ins. Co. v. Malcolm, 128 N.H. 521 (accidental contributing cause test discussion)
- Energynorth Natural Gas v. Continental Ins. Co., 146 N.H. 156 (inherently injurious acts certain to cause injury are not accidental)
- Town of Goshen v. Grange Mut. Ins. Co., 120 N.H. 915 (construing "invasion of the right of private occupancy" in context of real-property use and rights)
- Jespersen v. U.S. Fidelity & Guaranty Co., 131 N.H. 257 (natural consequences of acts can include mental/physical distress)
- Bartlett v. Commerce Ins. Co., 167 N.H. 521 (ambiguities construed against insurer only when a reasonable meaning favors insured)