Tech-Built 153, Inc. v. Va. Sur. Co.

• Decision Date: 21 April 2006
• Docket Number: No. 2005–068.,2005–068.
• Court: New Hampshire Supreme Court
• Parties: TECH–BUILT 153, INC. v. VIRGINIA SURETY COMPANY, INC. a/k/a Combined Specialty Insurance Company and another.

153 N.H. 371

898 A.2d 1007

TECH–BUILT 153, INC.

v.VIRGINIA SURETY COMPANY, INC. a/k/a Combined Specialty Insurance Company and another.

No. 2005–068.

Supreme Court of New Hampshire.

Argued: Oct. 19, 2005.

Opinion Issued: April 21, 2006.

Rehearing Denied May 26, 2006.

Law Office of David C. Dunn P.A., of Manchester (David C. Dunn, on the brief and orally), for the plaintiff.

Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor, on the brief and orally), for defendant Virginia Surety Company, Inc. a/k/a Combined Specialty Insurance Company.

Jay E. Printzlau, of Londonderry, by brief, for defendant Surge Resources, Inc.

BRODERICK, C.J.

The plaintiff, Tech–Built 153, Inc. (Tech–Built), appeals an order of the Superior Court (Conboy, J.) granting motions for summary judgment filed by the defendants, Virginia Surety Company, Inc. a/k/a Combined Specialty Insurance Company (Virginia Surety) and Surge Resources, Inc. (Surge). The trial court ruled that an insurance policy issued by Virginia Surety to Surge did not provide workers' compensation coverage to Tech–Built, a client of Surge, for injuries sustained by an employee of one of Tech–Built's subcontractors. We affirm.

The undisputed facts are as follows. Tech–Built is a New Hampshire corporation involved in the construction industry. In April 1999, Tech–Built and Surge, an employee leasing company, entered into a client service agreement in which Surge agreed to furnish staff to Tech–Built to perform particular jobs. Surge operates under a workers' compensation and employers' liability insurance policy issued by Virginia Surety.

Tech–Built served as a general contractor for work performed at a condominium project in Weare. It contracted with another company (subcontractor) to perform framing, and the subcontractor in turn hired Scott Thomas. On March 11, 2003, Thomas sustained serious injuries as a result of a fall he suffered while working on site.

Thomas secured an award for workers' compensation coverage through the New Hampshire Department of Labor (DOL). Because the subcontractor did not carry workers' compensation insurance, the DOL determined that Tech–Built was liable under RSA 281–A:7 to pay Thomas' workers' compensation award. Thereafter, Tech–Built initiated a declaratory judgment action against Surge and its insurer, Virginia Surety, seeking workers' compensation coverage under the policy issued by Virginia Surety to Surge. The superior court granted the motions for summary judgment filed by Surge and Virginia Surety, concluding that the insurance contract issued by Virginia Surety extended workers' compensation coverage only to Surge employees leased to Tech–Built. Tech–Built appealed.

The parties dispute whether the insurance policy Surge secured from Virginia Surety extends coverage exclusively to Surge employees leased by Tech–Built, or to Tech–Built as a company. Item 1 of the policy's pre-printed information page provides a place to insert information setting forth the identity and mailing address of the "insured," classification of the insured as an individual, a partnership or a corporation, and "[o]ther workplaces not shown above" in the insured mailing address line. Surge's name is identified in the "insured" line along with the term "etal [sic ]." Under the "[o]ther workplaces" caption, the phrase, "See A I/L Additional Named Insured and/or Locations" (hereinafter, endorsement), is inserted. In the endorsement, the phrase "Item (1) Insured of the Information page is amended to include the following" introduces well over one hundred fifty listed companies, including Tech–Built. From the interplay between the terms "et al." and " additional named insured," and the language in the endorsement, Tech–Built constructs its argument that it is a named insured under the policy. We do not agree.

When we review a 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. If our review of the evidence does not reveal any genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the trial court's decision. We review the trial court's application of the law to the facts de novo.

Dalton Hydro LLC v. Town of Dalton, 153 N.H. 75, ––––, 889 A.2d 24, 26 (2005) (citations omitted).

"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) (quotation omitted). The fundamental goal of interpreting an insurance policy, as in all contracts, is to carry out the intent of the contracting parties. Coakley v. Maine Bonding & Cas. Co., 136 N.H. 402, 409, 618 A.2d 777 (1992) (fundamental inquiry in interpreting contracts centers on determining intent of parties at time of agreement); LeMars Mut. Ins. Co. v. Joffer, 574 N.W.2d 303, 307 (Iowa 1998) (cardinal principle in construction and interpretation of insurance policies is that intent of parties at time policy sold controls). To discern the parties' intent, we first examine the language of the contract itself. See Lawyers Title Ins. Corp. v. Groff, 148 N.H. 333, 336–37, 808 A.2d 44 (2002) (court generally discerns parties' intent from plain meaning of language used in contract); EnergyNorth Natural Gas v. Continental Ins. Co., 146 N.H. 156, 159, 781 A.2d 969 (2001) (court construes insurance policy as it does any other contract).

The "GENERAL SECTION" of the insurance policy declares it as "a contract of insurance between you (the employer named in Item 1 of the Information Page) and us (the insurer named on the Information Page)." Similarly, in the section entitled "Who Is Insured," the policy states: "You are insured if you are an employer named in Item 1 of the Information Page." We acknowledge that Item 1 of the information page itself references Surge "etal [sic ]" and the "[o]ther workplaces" subsection references the endorsement entitled "Additional Named Insured and/or Locations." Other language within the policy itself, however, reveals that the contracting parties anticipated that a single employer was named as the insured, namely Surge, and that coverage for that employer extended to all "workplaces" of that employer listed in the endorsement, namely Tech–Built and the more than one hundred fifty other companies. Specifically, paragraph E of the "GENERAL SECTION" portion of the policy states:

This policy covers all of your workplaces listed in Items 1 or 4 of the Information Page; and it covers all other workplaces in Item 3.A.

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