Gagnon v. New Hampshire Ins. Co., No. 89-439

CourtSupreme Court of New Hampshire
Writing for the CourtJOHNSON
Citation573 A.2d 137,133 N.H. 70
Docket NumberNo. 89-439
Decision Date13 April 1990
Parties, 1 A.L.R.5th 999 George GAGNON, Administrator, Estate of Judith Gagnon v. NEW HAMPSHIRE INSURANCE COMPANY.

Page 137

573 A.2d 137
133 N.H. 70, 1 A.L.R.5th 999
George GAGNON, Administrator, Estate of Judith Gagnon
v.
NEW HAMPSHIRE INSURANCE COMPANY.
No. 89-439.
Supreme Court of New Hampshire.
April 13, 1990.

Page 138

[133 N.H. 71] Law Office of Thomas E. Craig, P.A., Manchester (H. Nina Bernard, on the brief and orally), for plaintiff.

Wiggin and Nourie, Manchester (Gordon A. Rehnborg, Jr., on the brief and orally, and Doreen F. Connor, on the brief), for defendant.

JOHNSON, Justice.

Plaintiff brought this declaratory judgment action against defendant to determine the extent of defendant's obligation to provide insurance coverage for Sally Wade, a defendant in plaintiff's underlying wrongful death action. On August 25, 1989, the Superior Court (Pappagianis, J.) held that defendant is not obligated to provide Wade with coverage. This appeal followed and, for the reasons stated below, we affirm.

During the summer of 1986, Camp Allen, Inc. employed Judith Gagnon, the decedent, as a camp counselor and Sally Wade as the camp "Waterfront Coordinator." On July 7, 1986, Wade was on duty [133 N.H. 72] as the pool lifeguard, and Gagnon was participating in a "one-hour staff free swim." While Wade was momentarily away from the pool, Gagnon suffered an epileptic seizure and nearly drowned. As a result of the accident, Gagnon lapsed into a coma and eventually died.

On July 9, 1986, Camp Allen filed an "Employer's First Report of Injury" with the State Department of Labor. Later, by letter of November 7, 1986, the attorney for George Gagnon, the guardian of Judith Gagnon, wrote the adjustors that "the claim for compensation benefits is withdrawn, without prejudice." Plaintiff then brought a tort action against Wade, Camp Allen, and Camp Allen director Wayne Vaughn. Also on November 7, 1986, plaintiff commenced this declaratory judgment against New Hampshire Insurance Company, seeking coverage for Wade under the

Page 139

liability insurance policies defendant sold to Camp Allen.

The two insurance policies at issue here are a general liability policy (including its broad form extension endorsement) and a commercial liability umbrella policy. The parties agree that coverage under the umbrella policy is directly tied to coverage under the general liability policy, and our discussion will therefore be limited to the general liability policy. The parties also agree that Wade is entitled to coverage under the general liability policy only if she qualifies as an "executive officer," or if Gagnon's injury did not "arise out of or in the course of her employment."

The pertinent provisions of the insurance policy are as follows:

"II. PERSONS INSURED

Each of the following is an insured under this insurance to the extent set forth below:

....

(c) if the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such;

....

"X. ADDITIONAL PERSONS INSURED

As respects bodily injury, property damage and advertising injury and personal injury coverages, under the provision "Persons Insured", the following are added as insureds:

[133 N.H. 73] (2) Employee--Any employee (other than executive officers) of the named insured while acting within the scope of his duties as such, but the insurance afforded to such employee does not apply;

(a) to bodily injury or personal injury to another employee of the named insured arising out of or in the course of his employment;"

(Emphasis in the original policy.)

Camp Allen also purchased a workers' compensation insurance policy from defendant. In order to receive coverage under this policy for employee injury claims, "[t]he bodily injury must arise out of and in the course of the injured employee's employment...." The phrase "arising out of and in the course of ... employment" is also the language used in RSA 281-A:2, XI (Supp.1989) to define those injuries compensable by workers' compensation benefits.

The trial court held that "New Hampshire Insurance Company is not obligated to provide Sally Wade with coverage" because she was not a Camp Allen executive officer and because Gagnon's injury arose out of and in the course of her employment with Camp Allen. Plaintiff appeals, arguing: (1) Wade was an "executive officer" at Camp Allen; (2) Gagnon's injury did not "arise out of" or "in the course of" her employment at Camp Allen; (3) workers' compensation cases should not dictate our treatment of the phrase "arising out of and in the course of employment"; and (4) the testimony of Anne Crane, a workers' compensation expert, should not have been admitted at trial.

I. Executive Officer

"[C]ontract interpretation," such as interpretation of the term "executive officer" in an insurance policy, "is ultimately an issue for this court...." Smith v. Liberty Mut. Ins. Co., 130 N.H. 117, 125, 536 A.2d 164, 168 (1987) (citation omitted). We hold that the trial court correctly determined, as a matter of law, that Wade was not an executive officer of Camp Allen.

This court has previously interpreted the phrase "executive officer" as it appears in a commercial liability policy. Both Smith, supra and Young v. N.H. Indem. Co., Inc., 120 N.H. 882, 424 A.2d 205 (1980), involved insurance provisions identical to Section II, Persons Insured, of defendant's insurance policy, quoted above. In Smith, a plant manager's insurance coverage under the "executive officer" provision was called into question. "He had authority to contract for [133 N.H. 74] the purchase of supplies and certain equipment; he was authorized to hire, fire and supervise the plant's fifty employees;

Page 140

and he had overall responsibility for the safety, maintenance and operation of the Manchester plant." Smith v. Liberty Mut. Ins. Co., supra, 130 N.H. at 119, 536 A.2d at 165. We held that the plant manager was eligible for insurance coverage as an executive officer. Smith, supra at 125, 536 A.2d at 168.

Young also involved a plant manager's eligibility for insurance coverage as an "executive officer."

"Young's managerial duties place upon him the responsibility to supervise directly three foremen and forty employees. As safety officer, Young is head of the safety committee and is responsible for compliance with regulations of the United States Occupational Safety & Health Administration and the United States Environmental Protection Agency. Young also was involved in the purchase and construction of other plants. On his own signature, he has bound the corporation to contracts...

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