Foy Ins. Grp. v. 101 Ocean Blvd.
| Decision Date | 17 June 2022 |
| Docket Number | 2021-0500 |
| Parties | Foy Insurance Group, Inc. v. 101 Ocean Blvd., LLC |
| Court | New Hampshire Supreme Court |
Having considered the brief and reply brief filed by the plaintiff Foy Insurance Group, Inc. (Foy), the memorandum of law filed by the defendant, 101 Ocean Blvd., LLC (Ocean), and the record submitted on appeal, we conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). Foy appeals an order of the Superior Court (Messer, J.) denying Foy's petition for a new trial. We affirm.
The relevant facts follow. In November 2018, the Superior Court (Brown, J.) held a jury trial on Ocean's claim that, because of the parties' special relationship, Foy "had a duty to inform Ocean that it lacked sufficient law and ordinance coverage" to rebuild its hotel to code after a 2015 fire, and that Foy negligently failed to so inform Ocean. 101 Ocean Blvd., LLC v. Foy Ins. Grp Inc., 174 N.H. 130, 135 (2021). The jury found in favor of Ocean, and Foy appealed the verdict. See id. at 133.
One of the issues on appeal concerned the admissibility of "Exhibit 27." Id. at 136. Exhibit 27 is a "commercial lines checklist" that was used by a different insurance agency, the Cross Agency, with a different insured, Cronin, Bisson & Zalinsky, PC (the law firm representing Ocean). Exhibit 27 listed several types of insurance coverage and, for two types of coverage "increased cost of construction" and "building ordinance or law," the phrase "Higher limits available" appeared in the comments section. (Capitalization omitted.)
At trial, Ocean used Exhibit 27 to cross-examine Foy's expert. Id. Ocean did not use Exhibit 27 to examine its own expert witness. Id. Foy's expert testified that the checklist was a mechanism to discuss available coverage with an insured, but was not "a good way to go about examining specific coverages." Id. (quotations omitted). The expert testified that he did not use a similar checklist and that the applicable standard of care did not require insurance agents to maintain such a checklist. Id. Ocean also used Exhibit 27 to question one of Foy's owners, who testified that he does not use a similar form. Id.
Exhibit 27 was admitted as a full exhibit over Foy's objection. Id. On appeal, Foy argued that Exhibit 27 was improperly admitted because it was "irrelevant, improper hearsay, and highly prejudicial." Id. (quotation omitted).
We were unpersuaded that the trial court had unsustainably exercised its discretion by admitting the exhibit. Id.
After trial, Foy learned that Exhibit 27 may have been incomplete. Foy was allowed to conduct limited post-trial discovery on that issue, and Foy learned that the checklist as originally mailed to Ocean's attorney had a third page that had not been part of Exhibit 27. The third page contained the following disclaimer:
Following its discovery of the third page, Foy filed the instant petition for a new trial pursuant to RSA 526:1. See RSA 526:1 (2021). In its petition, Foy alleged that the missing third page demonstrated that Exhibit 27 should have been excluded at trial as irrelevant and prejudicial. Alternatively, Foy averred that even if Exhibit 27 with the missing third page were admissible, a new trial was warranted because: (1) Foy was not at fault for failing to discover the third page earlier: (2) the third page is relevant admissible, and material to the merits of the parties' dispute, and was not cumulative; (3) if the third page were admitted, a different result in the trial is probable; and (4) the third page demonstrates that Exhibit 27 was false and misleading.
Ocean moved to dismiss Foy's petition for a new trial, arguing that it used Exhibit 27 at trial "only [as] any example of how an agent could have used a form to discuss coverage with a potential client" and thus had no relevance to the main issue at trial, which was whether the parties had a special relationship. Ocean observed that Foy's own expert testified that "if the jury concluded" that the parties had a special relationship, "then [Foy] would have breached the standard of care." (Quotation omitted).
The trial court granted Ocean's motion to dismiss, finding that, as used at trial, The court noted that Foy's expert "clearly testified that neither he nor his agents universally use checklists, that the use of such checklists was not a requirement of the standard of care, and that the use of Exhibit 27 would not be a good method of examining specific coverages."
The court reasoned that "[b]ecause Exhibit 27 had no direct connection to the policy issued by Foy to . . . Ocean and was not used as a substantive exhibit to demonstrate the availability of coverage under . . . Ocean's policy, any disclaimers about the accuracy of the information contained on Exhibit 27 [are] immaterial." The court observed that, even without the third page, Exhibit 27 included a disclaimer on its first page that provided: The court concluded that given that there was no evidence that Exhibit 27 represented the standard of care applicable to insurance agents and had no connection to the parties or policy at issue, the fact that Exhibit 27 was missing its third page "could not have misled the jury." The court determined that, because the third page is not material to the merits of the parties' dispute Foy was not entitled to a new trial. Foy filed a motion for reconsideration, which the trial court denied. This appeal followed.
We first discuss our standard of review. The parties urge us to apply our usual standard for reviewing a trial court grant of a motion to dismiss. Under that standard, we assume that the facts alleged in the petition are true and construe all reasonable inferences in the light most favorable to the plaintiff. See Automated Transactions, LLC v. Am. Bankers Ass'n, 172 N.H. 528, 532 (2019). We need not assume the truth of statements that are merely conclusions of law. Id. We then engage in a threshold inquiry that tests the facts in the petition against the applicable law, and if the allegations constitute a basis for legal relief, we must hold that it was improper to grant the motion to dismiss. Id. However, the trial court in this case did not merely assume the truth of the facts Foy alleged in its petition. Rather, the court tested the alleged facts against the transcripts of the parties' prior trial. Under these circumstances, we treat the trial court's order as an order on the merits of Foy's petition for a new trial and review it accordingly.
RSA 526:1 provides: "A new trial may be granted in any case when through accident, mistake or misfortune justice has not been done and a further hearing would be equitable." "Whether accident, mistake, or misfortune occurred is determined by the trier of fact, and its finding will be conclusive unless it is unsupported by the evidence." In the Matter of Birmingham & Birmingham, 154 N.H. 51, 56 (2006). We will not disturb the trial court's ruling absent an unsustainable exercise of discretion. Id.
Before addressing Foy's appellate arguments, we note that, as Ocean aptly observes, although the trial court relied upon the...
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