149 N.H. 759 | N.H. | 2003
In this declaratory judgment action, the respondents, Docusearch, Inc. (Docusearch) and Helen Remsburg, appeal an order of the Superior Court (Hampsey, J.) granting summary judgment in favor of the petitioner, Preferred National Insurance Company (Preferred). We affirm in part, reverse in part and remand.
Preferred sought a declaratory judgment that it is under no obligation to defend or indemnify Docusearch in a lawsuit filed by Remsburg, Administratrix of the Estate of Amy Lynn Boyer, in the United States
The disputed insurance policy issued by Preferred to Docusearch provides commercial general liability coverage for bodily injury and property damage (Coverage A), as well as personal and advertising injury damage (Coverage B). Coverage A provides that the insurer will pay “those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” “Bodily injury” is defined as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.” Coverage B provides that the insurer will pay “those sums that the insured becomes legally obligated to pay as damages because of ‘personal and advertising injury’ to which this insurance applies.” “Personal and advertising injury” means “injury, including consequential ‘bodily injury’, arising out of one or more of the following offenses: ... e. Oral or written publication of material that violates a person’s right to privacy.”
The policy also includes a “Detective or Patrol Agency Endorsement” (detective endorsement), which modifies the commercial general liability coverage and provides “coverage for sums which you become legally obligated to pay because of any Negligent Act, Error or Omission committed during the Policy Period in the conduct of ... operations,” subject to “those Exclusions already found in the Coverage Form.”
The parties’ dispute centers primarily upon the interpretation of an “Assault & Battery Endorsement” attached to the policy, which provides:
[T]he policy to which this endorsement is attached, is amended and modified as follows:
Actions and proceedings to recover damages for bodily injuries or property damage arising from the following are excluded from coverage, and the Company is under no duty to defend or to indemnify an insured in any action or proceeding alleging such damages:
*762 1. Assault and Battery or any act or omission in connection with the prevention or suppression of such acts;
Regardless of degree of culpability or intent and without regard to:
A. Whether the acts are alleged to be by or at the instruction or at the direction of the insured, his officers, employees, agents, or servants; or by any person lawfully or otherwise on, at or near premises owned or occupied by the insured; or by any other person____
Preferred filed a motion for summary judgment arguing that the assault and battery endorsement excluded coverage because the claimed damages arose out of Youens’ assault and battery. The trial court granted the motion, finding that the respondents “failed to rebut, with evidence sufficient to raise a genuine issue of material fact, Preferred’s showing that the exclusive source of the underlying plaintiff’s injuries (and therefore [the] claims) was the murder of Amy Boyer and its attendant excluded acts.” On appeal, the respondents argue that the trial court erred in: (1) concluding that the assault and battery endorsement excluded coverage' for bodily injury claims where the harm alleged was caused by the insured’s negligence in disclosing information; and (2) applying the assault and battery endorsement to exclude claims brought under either Coverage B or the detective endorsement.
In its brief, Preferred argues that the trial court erred by applying New Hampshire law, rather than Florida law, to interpret the policy. Preferred has not cross-appealed the trial court’s ruling that New Hampshire law applies, however, and thus has waived its choice of law argument. See Federal Bake Shop v. Farmington Cas. Co., 144 N.H. 40, 43 (1999). Accordingly, we address the respondents’ arguments under New Hampshire law.
In reviewing the trial court’s grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. See Del Norte, Inc. v. Provencher, 142 N.H. 535, 537 (1997). “If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment.” Id. (quotation and brackets omitted). Pursuant to RSA 491:22-a (1997), “the burden of proving lack of insurance coverage is on the insurer.” Maville v. Peerless Ins. Co., 141 N.H. 317, 320 (1996) (quotation omitted).
The respondents argue that Preferred has a duty to defend and indemnify Docusearch against Remsburg’s negligence claim. The claim alleges that Docusearch negligently disseminated information by providing Boyer’s social security number and place of employment to Youens, who allegedly used the information in connection with his murder of Boyer. The claim alleges “damages including but not limited to the fear, anxiety and mental and physical pain suffered by Amy Lynn Boyer as she lay dying, the reasonable expenses occasioned to the estate by her death, the loss of the probable duration of her life but for her death.”
The respondents argue that the assault and battery endorsement does not apply to the negligence claim because the damages alleged arose from the insured’s negligence, not from an assault and battery. Preferred counters that the exclusion applies because the negligence claim alleges damages comprised solely of bodily injuries arising from Youens’ assault and battery.
We disagree with the respondents’ contention that Preferred’s obligations under the policy are determined solely by the actions of the insured. Damages are an essential part of a negligence claim. Ross, 146 N.H. at 472. Thus, where the damages arise entirely out of an act that would not be covered under an insurance policy, the negligence claim is not one that would be covered under the policy. Id. We applied this principle in Ross where we held that the insured was not covered by his insurance policy for claims of negligent hiring and supervision because the underlying damages arose out of a rape which was not covered under the policy. Id. Other courts have applied a similar rule in interpreting exclusionary clauses similar to the one at issue here. See, e.g., Stiglich v. Tracks, D.C., Inc., 721 F. Supp. 1386, 1388 (D.C. 1989) (no coverage for negligence claim because proof of excluded act necessary to make the claim); Perrine Food Retailers v. Odyssey LTD., 721 So. 2d 402, 404 (Fla. Dist. Ct. App. 1998) (no coverage for negligence claim where exclusion
The respondents argue that our reasoning in Ross does not apply to the present case because the policy at issue in Ross was a professional liability policy rather than a general liability policy. While we agree with the respondents’ contention that different policy types serve different purposes, we do not share the respondents’ interpretation of Ross. Our analysis in Ross concerned whether the policy covered the act which caused the damages, not whether the policy was of a particular type. See Ross, 146 N.H. at 472.
Moreover, in Ross, we cited Winnacunnet v. National Union, 84 F.3d 32, 38 (1st Cir. 1996), which held that an insurer had no duty to provide coverage under an errors and omissions policy because the complaint against the insured alleged only damages that arose out of an uncovered act. In Winnacunnet, the complaint against the insured sought damages for the insured’s negligent hiring and supervision of an employee. Id. at 33-34. The plaintiffs claimed that the insured’s negligence resulted in “inappropriate relationships and dangerous effects,” and alleged a variety of damages. Id. at 34. The court found, however, that all the claimed damages were the result of the murder of the employee’s husband. Id. at 37. Because the policy at issue excluded coverage for “any claim arising out of ... assault or battery” as well as “any claim arising out of bodily injury to, or ... death of any person,” id. at 34, the court concluded that the complaint alleged damages arising entirely out of an act — the murder — that was excluded under the policy and denied coverage. Id. at 37.
Similarly, here, the negligence claim alleges damages arising entirely from Youens’ assault and battery against Boyer. The respondents have failed to allege any damage from the alleged negligence other than Boyer’s bodily injuries inflicted by Youens. Remsburg could not prevail on the negligence claim -without proving damages from Boyer’s murder. Cf. Ross, 146 N.H. at 472; Winnacunnet, 84 F.3d at 36. Thus, because the damages arose out of the assault and battery which is excluded by the assault and battery endorsement, the respondents’ negligence claim is excluded as well. See Ross, 146 N.H. at 472.
The respondents argue that the assault and battery endorsement, if read to exclude coverage for the insured’s negligence in this case, removes coverage for the principal activity of the insured’s operations for which the premium was paid. We disagree. Excluding claims for damages arising from assault and battery does not entirely remove coverage for the risks against which Docusearch insured itself. Rather, the exclusion merely singles out a particular risk. Moreover, while we agree with the respondents that the policy’s detective endorsement is intended to insure Docusearch against liability arising out of mistakes inherent in the practice of its profession, see Watkins Glen Cent. v. Nat. Union Fire, 732 N.Y.S.2d 70, 72 (App. Div. 2001), we disagree that Preferred is not permitted to limit this coverage to certain types of risks with clear and unambiguous language, see Ross, 146 N.H. at 471. Given the variety of harms risked by the dissemination of information, we cannot conclude, as the respondents urge, that excluding a certain type of bodily injury from coverage “would wholly vitiate coverage and frustrate the reasonable expectations of the insured.” Watkins Glen Cent., 732 N.Y.S.2d at 71.
Nor do we agree that section 493.6110, Florida Statutes (2002), which requires a private investigator to carry comprehensive general liability for “death, bodily injury, property damage, and personal injury” to be licensed in Florida, necessitates a finding of coverage here. Section 493.6110 does not require that an insurer provide a particular type of coverage, but rather places a duty upon private investigators to make sure they have obtained comprehensive liability coverage consistent with the statute in order to be licensed. See Southern Adj. v. American Bankers Ins., 723 So. 2d 285, 286 (Fla. Dist. Ct. App. 1998). Regardless of whether the coverage obtained by Docusearch complies with the statute, nothing in the statute required Preferred to provide coverage for damages for bodily injuries arising from assault and battery. See id.
The respondents next argue that the assault and battery endorsement applies only to Coverage A, and does not preclude coverage under either
The assault and battery endorsement is not attached to a particular section of the policy and is not restricted to a certain type of coverage within the coverage form. Rather, the endorsement states, “the policy to which this endorsement is attached, is amended and modified as follows.” Unlike an exclusion limited to a particular section within the policy, an endorsement attached to a policy must be read together with the entire policy. See 4 E. HOLMES, APPLEMAN ON INSURANCE 2d § 20.1, at 153 (1998). The endorsement excludes coverage for any action to recover damages for bodily injuries arising from assault and battery. Thus, the assault and battery endorsement excludes coverage under Coverage B for actions to recover damages for bodily injury in the same way that it does under Coverage A. Likewise, the assault and battery endorsement applies to the detective endorsement. The detective endorsement is modified by the exclusions found in the coverage form, which includes the attached assault and battery endorsement.
The respondents finally argue that Preferred must provide coverage under Coverage B for the invasion of privacy claim and the claim under the Consumer Protection Act, see RSA ch. 358-A (1995 & Supp. 2002). These claims allege other damages in addition to the damages arising from Boyer’s bodily injuries caused by the assault and battery. The trial court did not specifically address these other damages but instead found that all the damages alleged in Remsburg’s complaint were the result of the excluded assault and battery. We agree with the respondents that this was error.
An action for intrusion upon seclusion does not require a claimant to prove any harm beyond the intrusion itself. See RESTATEMENT (SECOND) OF TORTS § 652H comment a at 402 (1977) (“[0]ne who suffers an intrusion upon his solitude or seclusion ... may recover damages for the deprivation
Accordingly, we remand to the trial court for further proceedings consistent with this opinion.
Affirmed in part; reversed in part; and remanded.
