Colony Ins. Co. v. Dover Indoor Climbing Gym

• Citation: 974 A.2d 399,158 N.H. 628
• Decision Date: 24 April 2009
• Docket Number: No. 2008–759.,2008–759.
• Court: Supreme Court of New Hampshire
• Parties: COLONY INSURANCE COMPANY v. DOVER INDOOR CLIMBING GYM and another.

158 N.H. 628
974 A.2d 399

COLONY INSURANCE COMPANY
v.
DOVER INDOOR CLIMBING GYM and another.

No. 2008–759.

Supreme Court of New Hampshire.

Argued: March 18, 2009.
Opinion Issued: April 24, 2009.

974 A.2d 400

Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor, on the brief and orally), for the plaintiff.

Mallory & Friedman, P.L.L.C., of Concord (Mark L. Mallory, on the brief and orally), for defendant Dover Indoor Climbing Gym.

Shaheen & Gordon, P.A., of Dover, for defendant Richard Bigelow, filed no brief.

DUGGAN, J.

158 N.H. 629

The plaintiff, Colony Insurance Company (Colony), appeals an order of the Superior Court (McHugh, J. ) denying its motion for summary judgment and granting that of the defendants, Dover Indoor Climbing Gym (the gym) and Richard Bigelow. We reverse and remand.

The trial court found, or the record supports, the following facts. Colony issued a commercial general liability insurance policy to the gym, which was in effect from January 5, 2007, to January 5, 2008. An endorsement to the policy stated: "All ‘participants' shall be required to sign a waiver or release of liability in your favor prior to engaging in any ‘climbing activity.’ " It further stated: "Failure to conform to this warranty will render this policy null and void as [sic] those claims brought against you."

On August 14, 2007, Bigelow accompanied friends to the climbing gym, but did not sign a waiver. He testified that he was never asked to sign a waiver; the gym owner's affidavit stated that the owner asked the group of climbers if they had waivers on file and received no negative answers. It is undisputed, however, that Bigelow did not sign a waiver or release. While climbing, Bigelow fell and sustained serious injuries. The gym then put Colony on notice to defend and pay any verdict obtained by Bigelow. In response, Colony filed a petition for declaratory judgment, arguing that the gym's failure to obtain a release from Bigelow absolved Colony of any duty to defend or indemnify the gym.

Both Colony and the defendants filed motions for summary judgment, which the trial court addressed in a written order. The trial court found that Colony's failure to provide the gym with a sample waiver rendered the endorsement provision ambiguous. The trial court therefore denied Colony's motion for summary judgment, and granted the defendants' cross-motion

974 A.2d 401

for summary judgment. This appeal followed.

158 N.H. 630

On appeal, Colony argues that the trial court erred in finding that the endorsement was ambiguous, and contends that the gym's failure to obtain a waiver from Bigelow renders the policy inapplicable as to his claims. Alternatively, Colony argues that even if the endorsement is ambiguous, the gym is not entitled to coverage because it had actual knowledge of the policy's waiver requirement.

In reviewing the trial court's grant or denial of summary judgment, we consider the evidence, and all inferences properly drawn from it, in the light most favorable to the non-moving party. Everitt v. Gen. Elec. Co., 156 N.H. 202, 208, 932 A.2d 831 (2007) ; Sintros v. Hamon, 148 N.H. 478, 480, 810 A.2d 553 (2002). If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment is proper. Everitt, 156 N.H. at 209, 932 A.2d 831; Sintros, 148 N.H. at 480, 810 A.2d 553. We review the trial court's application of the law to the facts de novo. Everitt, 156 N.H. at 209, 932 A.2d 831; Sintros, 148 N.H. at 480, 810 A.2d 553.

The interpretation of insurance policy language is a question of law for this court to decide. Godbout v. Lloyd's Ins. Syndicates, 150 N.H. 103, 105, 834 A.2d 360 (2003). We construe the language of an insurance policy as would a reasonable person in the position of the insured based upon a...