In this declaratory judgment proceeding, the petitioner, Thomas Todd, appeals an order of the Superior Court {Nicolosi, J.) denying his cross-motions for summary judgment and granting summary judgment in favor of the respondents, Vermont Mutual Insurance Company (Vermont Mutual) and Hanover Insurance Company (Hanover). The trial court ruled that neither respondent had a duty to provide a defense to Todd in a civil stalking action. We affirm.
The summary judgment record reflects the following pertinent facts. Todd, a Massachusetts resident, is a member of the New Hampshire Chapter of the Appalachian Mountain Club (AMC). He has been a member of the AMC’s paddling committee since 1989 and was the committee’s co-chair in 2009 and 2010. Todd has also served as the AMC’s webmaster. The webmaster is “responsible for maintaining and updating the Chapter website.”
Sally Leonard is also a member of the AMC’s paddling committee. In January 2014, Leonard filed a stalking petition against Todd. See RSA 633:3-a (Supp. 2014). Leonard alleged that Todd “hacked” her computer and broke her vehicle’s window after she had voiced her opinion at an AMC meeting that Todd should not be allowed to participate in a paddling committee event “due to his history of aggressive behavior toward females.” Leonard further alleged that she was afraid for her well-being.
At all relevant times, Todd was insured under a homeowner’s insurance policy and an umbrella liability policy issued to him by Vermont Mutual. After the stalking petition was filed, Todd notified Vermont Mutual of the action and requested that it provide a defense under one or both of the policies. Vermont Mutual informed Todd that it did not believe that either policy covered the allegations in the stalking petition and declined to provide him with a defense.
The AMC was insured by Hanover under an employment practices liability (EPL) policy and a nonprofit directors, officers and organizations liability (D & 0) policy. Todd informed the AMC of the stalking petition and requested that it notify Hanover to provide him with a defense. Hanover declined to provide Todd with a defense.
In March 2014, the Circuit Court (.Bamberger, J.) held a final hearing on the stalking petition. The court found that Leonard “failed to sustain [her] burden of proof,” and, therefore, the court did not issue a restraining order against Todd. Todd incurred approximately $18,000 in attorney’s fees and costs in defending against the stalking petition.
In June 2014, Todd filed the present declaratory judgment proceeding, seeking a declaration that Vermont Mutual and Hanover owed a duty to defend him against the stalking petition and to reimburse him for the attorney’s fees and costs incurred in defending against the stalking petition. In addition, he sought attorney’s fees and costs for bringing the declaratory judgment proceeding. See RSA 491:22-b (2010).
The parties filed cross-motions for summary judgment. In its motion, Vermont Mutual argued that Massachusetts law governs interpretation of the policies because the policies are Massachusetts policies that were “issued to [Todd,] a Massachusetts resident, to provide insurance coverage for his Massachusetts home.” The trial court determined that Vermont Mutual had no obligation to defend Todd against the stalking petition under either Massachusetts or New Hampshire law. The court further found that Hanover had no duty to defend Todd. Accordingly, the court granted the respondents’ motions and denied Todd’s motions. This appeal followed.
II. Standards of Review
“In reviewing the trial court’s rulings on cross-motions for summary judgment, we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is
Resolution of this dispute requires us to interpret the language in the relevant insurance policies. Interpretation of an insurance policy is a question of law.
Id.
Our analysis in interpreting an insurance policy begins with an examination of the insurance policy language.
Great Am. Dining v. Philadelphia Indem. Ins.
Co.,
III. The Duty to Defend
An insurer’s obligation to defend its insured is determined by whether “the cause of action against the insured alleges sufficient facts in the pleadings to bring it within the express terms of the policy.”
N. Sec. Ins. Co.,
A. Vermont Mutual
On appeal, Todd argues that the trial court erred by ruling that he was not entitled to a defense under the Vermont Mutual homeowner’s and umbrella liability policies. Applying both New Hampshire and Massachusetts law, the trial court determined that Vermont Mutual did not owe Todd a duty to defend because the allegations in the stalking petition did not constitute an “occurrence” under either policy. The court further found that the actions alleged in the petition did not constitute an “offense” under the terms of the umbrella liability policy.
1. Choice of Law
We first turn to the choice of law issue. Our analysis is confined to the arguments presented by the parties. Todd contends that Vermont Mutual’s duty to defend must be determined based upon New Hampshire law, and not Massachusetts law. Vermont Mutual maintains that Massachusetts law need only be applied if we determine that the trial court erred in its interpretation of the policies under New Hampshire law. We hold that the trial court did not err in its interpretation of the policies under New
Hampshire law. Accordingly, we need not conduct a choice of law analysis.
2. “Occurrence” Under the Homeowner’s and, Umbrella Liability Policies
We next examine whether the allegations in the stalking petition constituted an “occurrence” under either of the Vermont Mutual policies. This analysis begins with an examination of the policies’ language.
Amica Mut. Ins. Co. v. Mutrie,
We have “developed two inquiries to determine whether an insured’s act was an accidental cause of injury, one subjective, the other objective.”
Marikar v. Peerless Ins. Co.,
As to the first inquiry, we have explained that an insured’s act is not an accidental contributing cause of injury when the insured actually intended to cause the injury that results.
Marikar,
Against this framework, we review the allegations in the stalking petition. In the petition, Leonard alleged that, after she had spoken against having Todd participate in a paddling committee event, Todd “hacked” her computer and shattered a window on her vehicle. Because the objective “inherently injurious” inquiry is dispositive, we need not analyze Todd’s subjective intent.
See Marikar,
We reach a similar conclusion with respect to the allegation that Todd shattered a window on Leonard’s vehicle. Because the causation of injury to the vehicle itself is inherent in the act of shattering the vehicle’s window, it cannot be accidental. Moreover, some degree of the fear Leonard alleged to have suffered is certainly the natural consequence of having her computer hacked and her vehicle’s window shattered.
See Jespersen v. U.S. Fidelity & Guaranty Co.,
Todd argues that the trial court erred by failing to consider Vermont Mutual’s denial letter, which he claims “establishes that[,] at the time it denied a duty to defend, Vermont Mutual could not determine whether the Petition alleged conduct by [Todd] that was expected or intended to result
in injury to” Leonard. Todd, however, offers no evidence that the court failed to consider Vermont Mutual’s denial letter. Nonetheless, even if the trial court failed to consider the letter, we find no error as the language in the denial letter is irrelevant to the determination of whether Vermont Mutual had a duty to defend Todd. That determination required only an examination of the allegations in the stalking petition and the express terms of the policies.
See N. Sec. Ins. Co.,
Todd further contends that the trial court erred in finding that his alleged conduct was not accidental because “[n]ot all things that one could consider ‘hacking’ are inherently injurious, and, without more in the pleading, it was reasonable to conclude [his] actions were potentially harmless.” For example, he contends that the alleged hacking could mean that someone else obtained access to his email account and sent inappropriate emails to Leonard or that he sent Leonard an email that she considered inappropriate. The allegation in the petition, however, does not suggest such potentially harmless conduct. Rather, the allegation is that Todd himself hacked Leonard’s computer. As explained above, the nature of hacking belies the possibility that such an activity is harmless.
3. “Offense” Under the Umbrella Liability Policy
We next address whether the trial court erred by determining that the allegations in the stalking petition did not constitute an “offense” under the Vermont Mutual
Todd argues that the trial court erred by ruling that this phrase unambiguously refers to real property offenses and, therefore, does not encompass hacking. Relying upon
Town of Goshen v. Grange Mutual Insurance Company,
In Town of Goshen, we examined the phrase “other Invasion of the Right of Private Occupancy” in an insurance policy to determine whether it referred to more than the right to be free from physical intrusions onto land. Id. We concluded that there need not be “an appreciable and tangible interference” with physical property to constitute an “invasion of the right of private occupancy.” Id. at 917 (quotation omitted). As a result, we found that the allegations in the underlying complaint concerning the effect of the planning board’s actions on the development of the complainant’s property, which caused substantial damages and denied the complainant’s right to the free enjoyment of his property without due process of law, constituted an “invasion of the right of private occupancy.” Id. at 917-18 (quotation omitted). Because we found that the phrase “other Invasion of the Right of Private Occupancy” lacked clarity as to the scope of coverage, we determined that the policy should be construed against the insurance company and in favor of the insured. Id. at 918. We therefore held that the subject endorsement provided coverage for the civil rights violation claims at issue in that case. Id.
Thus,
Town of Goshen
involved an examination of the relevant policy language in the context of an alleged interference with the use of real property,
id.
at 917-18, whereas, here, the allegations involve claims relating to an interest in personal property. Although the policy language at issue in this case is similar to the language we construed in
Town of Goshen,
we conclude that this case is distinguishable because, to the extent that the phrase is ambiguous, when read in the context of this case, it cannot reasonably be interpreted to encompass claims unrelated to real property.
See Bartlett v. Commerce Ins. Co.,
As relevant here, the word “occupancy” is defined as “[t]he act, state, or condition of holding, possessing, or residing in or on something; actual possession, residence, or tenancy, esp. of a dwelling or land” and “[t]he act of taking possession of something that has no owner (such as abandoned property) so as to acquire legal
Other courts have similarly interpreted analogous language. In
Nichols v. Great American Insurance Companies,
“Occupancy” ordinarily refers to “the taking and holding possession of real property under a lease or tenancy at will.” The association of “occupancy” with real property in the instant case is reinforced by its conjunction with the words “wrongful entry or eviction.” “Eviction” is a term almost exclusively associated with real property. We perceive that the “personal injury” contemplated by the business liability policies was the “wrongful entry, eviction or other invasion of the right to private occupancy” relating to some interest in real property.
Id.
at 421 (citations omitted);
see also Liberty Mut. Ins. v. East Central Oklahoma Elec.,
Todd contends that interpreting the phrase to refer only to interests in real property would be “more appropriate” if the provision defined “offense” as “wrongful eviction, wrongful entry or
other
invasion of private occupancy.” (Quotation omitted.) We are not persuaded. When construing an insurance policy, we look to the plain and ordinary meaning of the policy’s words in context and read the policy as a whole from the vantage point of an ordinary person.
Great Am. Dining,
Moreover, the cases from other jurisdictions cited by Todd are inapposite because, unlike the claims here, they address claims relating to real property.
See City of Glendale v. Nat’l Union Fire Ins. Co.,
No. CV-12-380PHX-BSB,
Accordingly, given its context in the language of the policy, we conclude that the phrase applies to claims involving an interest in real property. Because the allegation that Todd hacked Leonard’s computer does not involve real property, it is not covered by the policy provision at issue. The trial court did not err in determining that Vermont Mutual had no obligation, under the umbrella policy, to defend Todd against the stalking petition.
B. Hanover
Todd contends that the trial court erred in determining that Hanover was not obligated to provide a defense under either the EPL policy or the D & O policy. The trial court concluded that Todd’s alleged actions did not fall within the scope of his employment with the AMC and, therefore, he was not an “insured” under the terms of the EPL policy. As to the D & O policy, the court determined that the conduct alleged in the stalking petition did not constitute a “wrongful act” under the policy terms. We will address Todd’s challenges to the trial court’s rulings regarding each policy in turn.
1. EPL Policy
Hanover’s EPL policy provides that Hanover “will pay on behalf of the ‘insureds’, all ‘loss’which [the insured is] legally obligated to pay because of ‘claims’ first made against [the insured] during the ‘policy period’ and reported to [Hanover] in accordance with [section VII of the policy] for any ‘wrongful act’ to which this insurance applies.” The policy defines “insured,” in relevant part, as: “Any ‘executive’ of the ‘insured organization’ while acting solely within the course and scope of employment with the ‘insured organization,’ ” and “Any past, present or future ‘employees’ of the ‘insured organization’while acting solely within the course and scope of employment with the ‘insured organization’. . . .”
Assuming, without deciding, that Todd qualified as an “executive” or “employee” of the AMC, we conclude that the trial court did not err by determining that Todd’s alleged conduct of hacking a computer and shattering a vehicle’s window did not fall within the course and scope of his employment with the AMC and, therefore, he was not an “insured” under the terms of the EPL policy. We have said that conduct falls within the scope of employment if: “(1) it is of the kind the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; and (3) it is actuated, at least in part, by a purpose to serve the employer.”
Tessier v. Rockefeller,
In the stalking petition, Leonard alleged that, the morning after speaking out against Todd’s participation in an AMC
Todd argues that the trial court erred by disregarding a letter sent to him from the AMC suspending him from all activities and operations associated with the AMC pending resolution of the stalking petition. He maintains that the language in the letter stating that his “suspension is to remain in place pending ... the determination by the AMC regarding the validity of the allegations
related to your conduct while participating in club sponsored activities and endeavors”
demonstrates that his alleged conduct was within the course and scope of his employment. (Emphasis added.) As explained above, however, the question of whether there was a duty to defend requires a court to compare the policy language to the facts pleaded in the underlying suit to see if the claim falls within the express terms of the policy.
See N. Sec. Ins. Co.,
Nonetheless, relying upon
Alvarez v. Coregis Insurance Company,
Relying upon this interpretation, Todd argues that the stalking petition could fairly be read to encompass acts that were connected with the business of the AMC because his relationship with Leonard “derived solely from their joint membership on the Paddling Committee, and because [Leonard] attributed the alleged misconduct to actions that occurred at AMC meetings.” Simply because Todd and Leonard’s relationship derived solely from their respective membership in the AMC does not render the alleged conduct connected to the business of the AMC. Nor does Leonard’s allegation that Todd’s conduct occurred after she spoke out against him participating in a paddling committee event mean that his alleged conduct was connected to the business of the AMC. Indeed, it could not reasonably be said that hacking a computer and shattering the window on another committee member’s
2. D & 0 Policy
We next address whether the trial court erred by concluding that Hanover had no obligation to defend Todd under the terms of the D & 0 Policy. Under the D & 0 policy, Hanover promised to pay a “loss” on behalf of each “insured individual” for any “wrongful acts” to which the insurance applies, except for certain “loss” in which the “ ‘insured organization’ pays to or on behalf of the ‘insured individual[’] as indemnification.” The policy defines “wrongful act” to mean, in relevant part, “[a]ny actual or alleged act... committed or attempted by... [a]n ‘insured individual’ in his or her capacity as an ‘insured, individual’ ” or “[a]ny ‘personal injury’. ” (Emphases added.)
The trial court assumed that Todd was an “insured individual” under the policy, but, nonetheless, ruled that he was not entitled to a defense because the stalking petition could not be read to allege that Todd committed a “wrongful act.” The court determined that Todd’s “alleged actions were not committed in his capacity as AMC’s webmaster or as a member of the paddling committee.” It further concluded that the alleged acts did not constitute a “personal injury” as defined in the policy. (Quotation omitted.)
Todd argues that the trial court erred by determining that his alleged conduct was not committed in his capacity as an “insured individual.” He contends that, because the allegations suggest that his alleged conduct was done in retaliation for Leonard speaking out against his participation in a paddling committee event, the alleged conduct “arises from and is directly related to [his] membership on the Paddling Committee.” We disagree.
In this context, “capacity” is defined as “[t]he role in which one performs an act; esp., someone’s job, position, or duty.” BLACK’S LAW DICTIONARY,
supra
at 249. Todd does not dispute the trial court’s findings that the paddling committee is “responsible for planning, scheduling and implementing safe paddling and related activities” and that the webmaster is “responsible for maintaining and updating the Chapter website.” (Quotations omitted.) Given these responsibilities, it cannot be reasonably concluded that while allegedly hacking Leonard’s computer or shattering her vehicle’s window Todd was acting in his capacity as webmaster. Neither does the fact that Todd’s alleged conduct occurred after Leonard spoke out against him participating in a paddling committee event reasonably support a conclusion that Todd was acting in his capacity as a paddling committee member when he allegedly committed the alleged conduct.
See Federal Ins. Co.,
Again relying upon the letter sent to him from the AMC, Todd contends that his alleged actions were committed in his capacity as an “insured individual.” As we have explained, however, the letter from the AMC was immaterial to the trial court’s determination of whether Hanover had a duty to defend Todd against the stalking petition.
See N. Sec. Ins. Co.,
Finally, with respect to the allegation that he hacked Leonard’s computer, Todd argues that the trial court erred in concluding that the hacking did not constitute a “personal injury” as defined in the D & 0 Policy. Todd maintains that the trial court erred by interpreting the phrase “other invasion of the right of privacy” as referring only to claims involving an interest in real property.
Under the D & 0 Policy:
“Personal Injury” means any actual or alleged:
1. Defamation of character, libel, slander, or publication of material in violation of a person’s right of privacy; or
2. The wrongful entry or eviction or other invasion of the right of privacy, or
3. False arrest, wrongful detention or imprisonment; or
Malicious prosecution; or xii
Infringement of copyright or trademark, unauthorized use of title, plagiarism, or misappropriation of advertising ideas. lO
(Emphasis added.) The policy does not define the phrase “other invasion of the right of privacy” contained in the second definition of “Personal Injury” (Definition 2).
Todd argues that, because in
Goshen
we found the language “other invasion of the right of private occupancy” did not require a physical invasion of real property, and held that language to be ambiguous, we should similarly find the language at issue in this case ambiguous and construe the provision against the insured.
See Goshen,
The “invasion of the right to privacy” phrase in Definition 2 of “personal injury” immediately follows the phrase “wrongful entry or eviction.” As explained above, the words “entry” and “eviction” relate to interests in real property.
See
BLACK’S Law DICTIONARY,
supra
at 650,673. It logically follows that the phrase “other invasion of the right of privacy” is “intended to encompass actions of the same general type as, though not specifically embraced within, ‘wrongful entry or eviction.’ ”
Waranch,
Todd contends that the act of hacking “requires an invasion of one’s home” because “the hacker must send and receive data” and, therefore, the hacker “crosses the threshold of the victim’s physical property.” As explained above, however, we do not construe the act of hacking a computer to require the hacker to cross the threshold of the victim’s real property. See Black’s Law Dictionary, supra at 827 (defining “hack” and “hacker”). Although a hacker may intrude upon another’s personal information as contained on his or her computer, we are not persuaded that this requires a physical invasion of real property so as to fall within the definition of “personal injury” in the D & O Policy.
Accordingly, because Todd was not acting in his capacity as an “insured individual,” and computer hacking does not fall within the definition of “personal injury,” we agree with the trial court that the allegations in the petition do not constitute a “wrongful act” under the D & O Policy. We, therefore, conclude that Hanover had no duty to defend Todd.
Affirmed.