This case comes to us on appeal by the plaintiff, Lido Company of New England, Inc. (“Lido”), from а summary judgment entered in favor of the defendant, Fireman’s Fund Insurance Company (“Fireman’s Fund”), in the Superior Court (Androscoggin County, Alexander, /.). We affirm the judgment.
Lido owned and leased service stations which distributed gasoline and diesel fuel in Maine, New Hampshire and Massachusetts. During 1985, gasoline was discovered beneath a Lido statiоn in Plaistow, New Hampshire. The environmental consulting firm hired by Lido determined that gasoline had leaked from the station and spread throughout the ground, resulting in groundwater contamination. The consultants rеcommended that a gasoline recovery system be installed to prevent further contaminаtion. Lido acted on that recommendation and hired an engineering firm to install such a system. As a result, over 3000 gallons of gasoline were recovered at a cost of over $150,000. Lido’s service station remained open for business during the recovery operation.
Fireman’s Fund, Lido’s comprehensive general liability insurer, agreed to defend and indemnify Lido for the third party damages arising out of the leakage, but refused to compensate it for the costs incurred in cleaning up Lidо’s own property. Lido brought this action to recover those cleanup costs from Fireman’s Fund.
1
The parties agree that this action, brought by a New Hampshire corporation to reсover the cost of cleaning up property located in that state, is governed by New Hampshire law.
See Baybutt Const. Corp. v. Commercial Union Ins. Co.,
The policy at issue provides that Fireman's Fund
will pay on behalf of the insured all sums which the insured shall become legally obligated tо pay as damages because of ... property damage to which this insurance applies.... 2
In 1954 New Hampshire’s highest court interpreted liability insurance language nearly identical to the language in this case.
3
In
Desrochers v. New York Cas. Co.,
Lido has failed to demonstrate that New Hampshire’s highеst court would reject the precedent set in Desrochers 4 and interpret the language оf the “damages which the insured shall become legally obligated to pay” to include responsibility for costs of cleaning up gasoline on the insured’s own property. 5
The Superior Court likewisе rejected Lido’s contention that Fireman’s Fund is estopped from denying coverage for the spill in New Hampshire because it had previously paid for cleanup of an earlier spill on Lido property in Massachusetts. Even if the scope of coverage under a policy of insurance could be expanded by estoppel,
see Cushman v. Grafton County,
The entry is:
Judgment affirmed.
All concurring.
Notes
. Lido amended its complaint to add Count II, a claim of breach of goоd faith and fair dealing and Count III, alleging estoppel. The Superior Court entered summary judgment for Fireman’s Fund on all counts. -Lido pursues its original contract claim and the estoppel claim in this appeal.
. The policy also contains a standard owned-property exclusion clause as follows:
This insurance does not apply:
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(k) to property damage to ... property owned or occupiеd or rented to the insured....
.The policy in that case provided that the defendant insurer, New York Cаsualty Company, agreed "to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages ... because of injury to or destruction of property, including the loss of use thereof.”
Desrochers v. New York Cas. Co.,
. On February 13, 1990, the New Hampshire Supreme Court vacated as imprоvidently granted a previously accepted appeal and summarily affirmed a New Hamрshire Superior Court decision that, relying on Desrochers, concluded that clean-up costs were not dаmages under a comprehensive liability policy. Troy Mills, Inc. v. Aetna Cas. & Surety Co., No. 89-311.
. In
Patrons Oxford Mut. Ins. Co. v. Marois,