Michael Newell v. Markel Corporation & a.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court's home
page is: http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Belknap
No. 2015-0477

MICHAEL NEWELL

v.

MARKEL CORPORATION & a.

Argued: January 13, 2016
Opinion Issued: June 28, 2016

Matthew J. Lahey, P.A., of Laconia (Matthew J. Lahey on the brief and
orally), for the plaintiff.

Morrison Mahoney LLP, of Boston, Massachusetts (Kevin Truland on the
brief and orally), for the defendants.

HICKS, J. The defendants, Markel Corporation, Markel Services, Inc.
(Markel Services), and Essex Insurance Company (Essex), appeal an order of
the Superior Court (O’Neill, J.) denying their motions for summary judgment
and granting summary judgment to the plaintiff, Michael Newell, in this
insurance coverage action. We affirm in part, reverse in part, and remand.

The following facts were recited in the trial court’s order or appear in the
record before us. On or about June 12, 2010, Newell was allegedly injured in a
slip and fall accident at a property owned by Brames, Inc. (Brames) in Laconia.

Brames was insured under an Amusement Park General Liability Policy (the
Policy) issued by Essex. Essex is a subsidiary of Markel Corporation and
Markel Services is Markel Corporation’s claims handling branch.

Newell’s alleged injury occurred when he slipped on a wet bathroom floor
on Brames’s property during Motorcycle Week 2010. The floor had recently
been washed by Ivy Banks (Banks) of I&L Cleaning Services. Banks had been
cleaning the bathrooms at the Brames’s property during the annual Motorcycle
Week for several years up to and including 2010 under an arrangement that he
had entered into with Brames’s co-owner and treasurer, Robert Ames. Under
this arrangement, Banks maintained the bathrooms on the Brames property
during Motorcycle Week in exchange for tips he received from patrons using
the bathrooms. Banks estimated that he would receive between $75 and $100
in tips per day during Motorcycle Week, and he neither sought nor received any
other payment for his services. Banks offered similar services at other
motorcycle shows and events throughout the country.

Newell filed two personal injury actions arising from his slip and fall. In
the first (the Brames action), he sued Brames for negligence in leaving the floor
wet without a warning. That action concluded with an out-of-court settlement.

In the second lawsuit (the Banks action), Newell sued Banks. The
defendants received notice of the Banks action, but declined to defend Banks
or intervene. Banks, although properly served, filed neither an appearance nor
an answer and was defaulted. A default judgment was entered against Banks
for $300,000, the full amount of damages sought by Newell.

Newell then brought the instant action to recover the $300,000 default
judgment from the defendants. In his complaint, Newell alleged that “Banks
was an insured under a liability insurance policy issued by Markel/Essex to
Brames, and that Markel/Essex breached the insurance contract by failing to
defend and indemnify Banks after receiving notice of the suit.” Newell alleged
that he was “a third party beneficiary under the contract.”

In ruling on the parties’ cross-motions for summary judgment, the court
noted that the only issue before it was whether Banks was an insured under
Brames’s policy with Essex at the time of Newell’s slip and fall. The court
concluded: “[U]nder a reasonable interpretation of the relevant language in the
Essex policy, Mr. Banks qualified as a ‘volunteer worker.’ Because more than
one reasonable interpretation is possible, and one interpretation provides
coverage, the Court construes this language against the defendants and in
favor of the plaintiff.” (Quotation, citation, and brackets omitted.)

On appeal, the defendants argue that the trial court erred in determining
that the language of the Policy is ambiguous and that Banks was a “volunteer
worker” under the Policy. In addition, Markel Corporation and Markel Services

2

claim that they are entitled to summary judgment because “they did not issue
the policy in dispute and the plaintiff did not object to their motion for
summary judgment.” Newell counters that Banks is a “volunteer worker” as
defined under the Policy and that Essex is barred from denying the same under
the doctrine of judicial estoppel.

In this appeal from the disposition of cross-motions for summary
judgment, we employ the following standard of review:

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
entitled to judgment as a matter of law. If our review of that
evidence discloses no genuine issue of material fact and if the
moving party is entitled to judgment as a matter of law, then we
will affirm the grant of summary judgment. We review the trial
court’s application of the law to the facts de novo.

Conant v. O’Meara, 167 N.H. 644, 648 (2015) (quotations, citations, and
brackets omitted).

We first address the contention that summary judgment should have
been granted to Markel Corporation and Markel Services. Those entities moved
for summary judgment asserting that because Newell’s action was for breach of
contract, and neither Markel Corporation nor Markel Services had a
contractual relationship with Brames, the complaint failed to state a claim
against them. Newell specifically noted in his own motion for summary
judgment and objection to the summary judgment motion of defendant Essex
that he did not object to Markel Corporation and Markel Services’s motion.
Newell’s counsel at oral argument confirmed that this case concerns only
Essex. Accordingly, we reverse the trial court’s summary judgment rulings
with respect to Markel Corporation and Markel Services and remand for the
entry of summary judgment in favor of those entities. The remainder of this
opinion concerns only defendant Essex.

We now turn to the issue of coverage under the Policy. “The
interpretation of insurance policy language is a question of law for this court to
decide.” Great Am. Ins. Co. v. Christy, 164 N.H. 196, 200 (2012). “We
construe the language of an insurance policy as would a reasonable person in
the position of the insured based upon a more than casual reading of the policy
as a whole.” Colony Ins. Co. v. Dover Indoor Climbing Gym, 158 N.H. 628, 630
(2009). “Policy terms are construed objectively, and where the terms of a policy
are clear and unambiguous, we accord the language its natural and ordinary
meaning.” Id. “If more than one reasonable interpretation is possible, and an
interpretation provides coverage, the policy contains an ambiguity and will be

3

construed against the insurer.” Great Am. Dining v. Philadelphia Indem. Ins.
Co., 164 N.H. 612, 616 (2013) (quotation omitted).

The issue before us is whether Banks is an insured under the Policy as a
volunteer worker. The Policy provides:

And your Volunteer Workers are Insureds only for activities or
work they conduct or perform:

 at your direction; and
 within the scope of their duties for you.

(Emphasis omitted.) The Policy defines the term volunteer worker as follows:

Volunteer Worker means any person who:

 isn’t an employee or a leased temporary worker;
 donates his or her work; and
 isn’t paid a fee, salary or other compensation for that work.

(Emphasis omitted.)

Essex argues that “Banks fails to qualify as a ‘volunteer worker’” for
three reasons: (1) he “did not donate his services”; (2) he “did receive
compensation in the form of tips”; and (3) he “did not act at Brames’s
direction.” We will address each in turn, beginning with the contention that
Banks “did not ‘donate’ his work under the common meaning of that term.”
Essex asserts that “[t]he common meaning of the term ‘donate’ is to present a
gift or give property or money without consideration,” and argues that “Banks
did not donate or bestow a gift of his services to Brames” because “Banks
benefited from his use of” Brames’s property.

Newell counters that the term “donates” cannot mean “to give without
compensation” when “the definition already includes ‘isn’t paid . . . other
compensation’ in the conjunctive.” As Newell points out, “the usual rule[] of
construction [is] that effect is to be given to all the clauses of a contract if it
reasonably may be.” Shelby &c. Co. v. Lynch, 89 N.H. 510, 512 (1938).

Construing a similar definition of “volunteer worker,” the court in North
Carolina Farm Bureau Mutual Insurance v. Burns, 767 S.E.2d 109 (N.C. Ct.
App. 2014), concluded that “the term ‘donate’ must encompass more than
working without receiving payment. Otherwise, the policy language that the
work must be without ‘fee, salary or other compensation’ would be superfluous
and the term ‘donate’ would have no effect.” N. Carolina Farm Bureau Mut.
Ins., 767 S.E.2d at 112. The court then reasoned:

4

Having determined that the term “donate” as used in the
policy must mean more than “without compensation,” and in order
to give effect to every provision of the policy definitions, we
consider the context in which the term is used: defining “volunteer
worker.” We note that the common everyday meaning of the word
“volunteer” is characterized by not only lack of compensation, but
also choice and free will. Therefore, considering its common
definitions, its use in the context of working as a volunteer, and
the policy language as a whole, we conclude that to “donate” one’s
work under the terms of the policy at issue necessitates the
presence of choice and free will.

Id. at 112-13 (footnote omitted). Relying upon North Carolina Farm Bureau
Mutual Insurance, Newell contends that “[a] reasonable interpretation of
‘donates’ in the context of this policy is to act by choice, free will and
voluntarily, which Banks did.”

We conclude that the foregoing arguments demonstrate a “reasonable
disagreement between [the] contracting parties lead[ing] to at least two
interpretations of the [Policy’s] language,” Colony Ins. Co., 158 N.H. at 630
(quotation omitted). Although Essex’s interpretation employs the more
common meaning of “donates,” Newell points out nonnegligible flaws with that
interpretation and posits an alternative that has garnered acceptance by at
least one court. Accordingly, we conclude that the term “donates” is
ambiguous, see id., and we construe it in favor of coverage. See High Country
Assocs. v. N.H. Ins. Co., 139 N.H. 39, 44 (1994).

Essex next argues that Banks does not meet the definition of “volunteer
worker” because the tips he received from patrons “amount to compensation
under the ordinary meaning of that term.” Essex cites cases and statutes that
equate tips with compensation in other contexts. See, e.g., Marden v. State, 122 N.H. 751, 753-54 (1982) (construing the term wages in unemployment
compensation statute to include tips received by waitress).

Newell, on the other hand, citing both the dictionary definition and case
law differentiating compensation and gratuities in other contexts, contends
that “[c]ompensation is for something that is owed, and not a gratuity or gift.”
Newell also invokes the doctrines of ejusdem generis and noscitur a sociis, as
well as the presence of the word “other” before “compensation” in the definition
of “volunteer worker,” to argue that compensation must be construed to mean
something like “fee” and “salary.” Newell also notes that “[t]he policy language
is unclear as to whether [the] ‘fee, salary or other compensation’ applies just to
[payments by] the policy holder Brames or includes receipts from third parties.”
Newell points out that many insurance companies define “volunteer worker”
with additional language specifying that the volunteer worker may not receive
compensation from either the policy holder or anyone else. See, e.g., Dry v.

5

United Fire & Cas. Co., Inc., 420 S.W.3d 593, 594-95 (Mo. Ct. App. 2013)
(quoting policy defining “volunteer worker,” in pertinent part, to be “a person
who . . . is not paid a fee, salary or other compensation by you or anyone else
for their work performed for you”). He argues that “[t]he practice of adding this
language is so wide spread that it is reasonable to infer that Essex intended by
omitting it that only fee, salary or other compensation by Essex itself would bar
coverage.”

We again conclude that although Essex has put forth a reasonable
interpretation of the term “compensation,” Newell has identified an ambiguity
by articulating another reasonable construction. See Colony Ins. Co., 158 N.H.
at 630. Accordingly, we will construe that term in favor of coverage. See High
Country Assocs., 139 N.H. at 44.

Finally, Essex contends that Banks does not meet the coverage
requirement of having acted at Brames’s direction. Citing the dictionary
definition of “direction,” Essex argues that “in the context of the present case,
the term ‘at your direction’ connotes supervision or guidance of an action or
operation, or an order or command.” Essex then argues:

Here, the undisputed facts demonstrate that Banks did not
conduct or perform work at Brames’s direction. Ames testified that
when Banks first came to provide services at the [property], he did
not show him what to do or tell him what to do. He showed Banks
where the bathrooms were, but did not point [out] the area he
wanted him to clean. When asked how I&L Cleaning Services
would know what they are supposed to do with the two places
where there are portable toilets, Ames testified that “They’re
bathroom cleaning people. My assumption was that they knew
what to do, that I didn’t have to tell them anything.”

(Citation omitted.)

Ames’s testimony suggests that the degree of supervision of Banks’s work
— or lack thereof — by Brames was not a consequence of their work
arrangement but of the nature of the work itself. Cf. Borello & Sons v. Dept. of
Indus. Rel., 769 P.2d 399, 408 (Cal. 1989) (noting, in finding sharefarmers to
be employees for purposes of workers’ compensation law that “[i]t is the
simplicity of the work, not the harvesters’ superior expertise, which makes
detailed supervision and discipline unnecessary”). As Newell contends,
Banks’s services were “not complex” and did not constitute “work that required
any supervision or instruction.” Newell therefore argues that, in this context,
the policy term “at your direction” means “with the knowledge and approval of
Brames.”

6

We agree with Newell that, at least in the context of unskilled labor, the
phrase “at your direction” can reasonably be read to mean something other
than “supervision or guidance” as urged by Essex. The provision at issue
conditions coverage on the worker conducting or performing the activities “at
[the policyholder’s] direction” and “within the scope of their duties for [the
policyholder].” Taken together, these two conditions foreclose action taken on
the worker’s own initiative and unrelated to the agreed-upon task ― and
certainly foreclose any “frolic of his own.” Cf., e.g., Perlstein v. American Exp.
Co., 59 N.E. 194, 195 (Mass. 1901) (noting that the question for the jury in
determining whether defendant was liable for negligence of its employee driver
was “not whether the defendant owned the team, but whether the person who
was driving it negligently was then acting for the defendant in doing the work
which he was directed to do” or “was off ‘on a frolic of his own’”); Shakra v.
Benedictine Sisters, 131 N.H. 417, 422 (1989) (concluding sufficient evidence
supported trial court’s finding that former president of defunct corporate
defendant “entered into [a purchase and sale] agreement while ‘on a frolic of
her own,’ without . . . authorization or approval”). In this sense, “at your
direction” could reasonably mean “authorized by you” or “instructed by you to
do.” Employing that interpretation here, Banks would not be acting at
Brames’s direction if, for instance, he unilaterally decided to tend bar at
Brames’s establishment, but would be acting at Brames’s direction in carrying
out the very task Brames engaged him to do — clean the bathrooms.

We conclude that, at the very least, the phrase “at your direction” is
susceptible of two reasonable interpretations under the circumstances
presented here. See Colony Ins. Co., 158 N.H. at 630. The phrase is therefore
ambiguous and will be construed in favor of coverage. See High Country
Assocs., 139 N.H. at 44. Having determined that all of the disputed provisions
must be construed in favor of coverage, we conclude that the trial court did not
err in ruling that Banks was a “volunteer worker” under the Policy. Given this
conclusion, we need not address Newell’s judicial estoppel argument.

Affirmed in part; reversed
in part; and remanded.

DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.

7