Wallace et al v. Nautilus Insurance Company

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Wallace et al.
v. Civil No. 18-cv-747-LM
Opinion No. 2019 DNH 198
Nautilus Insurance Company
O R D E R
John Wallace and Elizabeth Trase (“plaintiffs”) brought a
declaratory judgment action against Nautilus Insurance Company
(“Nautilus”), seeking a declaration that Nautilus must indemnify
McPhail Roofing, LLC (“McPhail”) for damages that McPhail must
pay plaintiffs for its defective workmanship in replacing the
roofs on plaintiffs’ homes. On July 23, 2019, the court granted
in part and denied in part the parties’ cross-motions for
judgment on the stipulated record (the “July Order”).
Plaintiffs and Nautilus move for reconsideration of the portion
of the July Order denying their motions. In addition,
plaintiffs move to supplement the stipulated record. The
opposing party objects to each motion.
BACKGROUND
I. Factual Background
Because the court set forth a detailed background of this
case in its order on the parties’ motions for judgment on the
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stipulated record (“motions for judgment”), it assumes a general
level of familiarity with the facts and provides only a brief
summary. Plaintiffs, who own adjoining houses on Quarry Road in
Yarmouth, Maine, hired McPhail to replace the roofs on their
houses. After McPhail completed its work, plaintiffs noticed
several issues with their roofs, both aesthetically and
otherwise. The plaintiffs withheld roughly a third of the
agreed-upon contract price from the final payments due to
McPhail under the contracts.
Plaintiffs met with Robert Fulmer, a roofing consultant and
expert in the type of roof at issue. Fulmer conducted a
detailed inspection of the roofs and found evidence of water
leaking through both roofs during rainstorms. He opined that
the only way to cure the installation defects was to remove and
replace the roofs entirely. McPhail disagreed. Plaintiffs took
Fulmer’s advice and replaced both roofs, using another
contractor.
Plaintiffs and McPhail were unable to resolve their dispute
and proceeded to arbitration. Plaintiffs sought compensation
for the damage caused by the leaking and for the replacement
cost of the roofs. McPhail sought the remaining payment due
under the parties’ contracts. Nautilus, with whom McPhail held
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a commercial liability policy (the “Policy”), defended McPhail
in the proceeding.1
On June 29, 2017, the arbitrator issued an award (the
“initial decision”), finding that McPhail had failed to properly
install the roofs in accordance with the manufacturer’s
instructions and applicable building codes. He further found
that plaintiffs acted reasonably in removing and replacing the
roofs.
The arbitrator awarded Wallace $140,053.50 and Trase
$160,065.62 against McPhail. At the parties’ request, the
arbitrator itemized the award of damages for each plaintiff.
For Wallace, the arbitrator awarded damages for the replacement
roof without shingles, the shingles themselves, attic cleaning,
attic reinsulation, and repainting. For Trase, the arbitrator
awarded damages for the replacement roof without shingles, the
shingles themselves, and damage to her landscaping.
In addition, the parties stipulated that the arbitrator
must award attorneys’ fees and expenses to the substantially
prevailing party. Because the parties could not agree on the
amounts, the arbitrator issued a supplemental award on March 29,
2018. He awarded plaintiffs $176,898.95, broken down separately
1 The Policy at issue in this case is a standard commercial
general liability (“CGL”) policy, the language of which has been
subject to litigation in several jurisdictions for many years,
as discussed further infra.
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into awards for attorneys’ fees, expert witness fees, and other
expenses, plus additional compensation for pre- and post-
judgment interest. On May 10, 2018, the District of Maine
entered a judgment confirming the arbitration awards against
McPhail. Wallace & Trase v. Notinger as Ch. 7 Bankr. Trustee
for McPhail Roofing, LLC, No. 2:18-cv-00188, Dkt. No. 4 (D. Me.
May 10, 2018).
Nautilus promptly paid plaintiffs on McPhail’s behalf what
it determined was covered under the Policy. Specifically,
Nautilus paid Wallace $14,961.70, which represented the itemized
damages in the arbitrator’s award for attic cleaning and
reinsulation, as well as repainting, and $25,910.24 in expert
witness fees and expenses. Nautilus paid Trase $873.63, which
represented the itemized damages to her landscaping, and
$24,566.32 in expert witness fees and expenses. Nautilus
refused to pay the remainder of the arbitrator’s award,
including the cost of replacing the roofs and the award of
attorneys’ fees.
Following McPhail’s declaration of bankruptcy, plaintiffs
obtained an assignment of McPhail’s claims against Nautilus. In
re McPhail Roofing, LLC, No. 17-11305-MAF, Dkt. No. 99 (Bankr.
D.N.H. Aug. 22, 2018). Plaintiffs brought the instant suit,
seeking a declaratory judgment that Nautilus is required under
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the Policy to indemnify McPhail for the cost of replacing the
roofs and the award of attorneys’ fees.
II. The July Order
Under the Policy, Nautilus agreed to “pay those sums that
the insured becomes legally obligated to pay as damages because
of ‘bodily injury’ or ‘property damage’ to which this insurance
applies.” Doc. no. 14-3 at 11. The Policy applies only if the
“‘bodily injury’ or ‘property damage’ is caused by an
‘occurrence’ that takes place in the ‘coverage territory.’” Id.
Finally, the Policy defines an “occurrence” as “an accident,
including continuous or repeated exposure to substantially the
same general harmful conditions.” Id. at 24.
In the July Order, the court held that there had been
property damage caused by an occurrence: the leaking due to the
defectively constructed roofs. The court further held that
although there was property damage from an occurrence, the
Policy did not require Nautilus to indemnify McPhail for the
cost of replacing the roofs. The court also held in the July
Order that the Policy required Nautilus to indemnify McPhail for
the attorneys’ fees assessed in the arbitrator’s decision.
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DISCUSSION
Nautilus moves for reconsideration of the portion of the
July Order holding that the Policy requires Nautilus to
indemnify McPhail for the arbitrator’s award of attorneys’ fees.
See doc. no. 26. Plaintiffs move to supplement the stipulated
record to include new evidence. See doc. no. 29. Based on the
additional evidence, plaintiffs move for reconsideration of the
portion of the July Order holding that the Policy does not
require Nautilus to indemnify McPhail for the cost of removing
and replacing plaintiffs’ roofs. See doc. no. 28.
I. Motion to Supplement the Record
Plaintiffs seek to supplement the record to add four
exhibits. The first is an August 5, 2019 “Supplemental Order on
Request for Clarification on Basis of Remedy,” issued by the
arbitrator (the “Supplemental Order”). Doc. no. 29-1. In the
Supplemental Order, the arbitrator clarifies the reasons for his
award in the initial decision.
The second exhibit is a July 29, 2019 declaration of Brian
Grady, the contractor who replaced McPhail’s roofs on
plaintiffs’ houses. Doc. no. 29-2. Plaintiffs also seek to add
to the record the two contracts Grady entered into with
plaintiffs to repair their roofs (collectively, with the
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Supplemental Order and Grady’s declaration, the “supplemental
evidence”). Doc. nos. 29-3 & 29-4.
Nautilus objects to the motion to supplement on several
grounds. It argues that there is no legal basis to supplement
the stipulated record after the court ruled on the parties’
motions for judgment; that the arbitrator lacked jurisdiction to
issue the Supplemental Order; that plaintiffs waived their
rights to or are estopped from requesting a clarification of the
arbitrator’s award; and that the court should not consider
Grady’s affidavit or the contracts because Grady was never
disclosed as a relevant witness in this case and has not been
subject to examination by Nautilus.
The court agrees with Nautilus that supplementation of the
stipulated record at this stage of the litigation is improper.
The parties jointly requested that the court resolve their
dispute based on “a stipulated record comprised of the Policy,
the arbitrator’s two decisions, the transcript from the
arbitration, and the exhibits admitted into evidence at the
arbitration.” Doc. no. 10 at 1. The court granted that
request, and the parties filed a stipulated record consisting of
more than 3,500 pages.
Plaintiffs offer no authority for their contention that the
court may consider additional evidence not included in the
stipulated record after ruling on the parties’ cross-motions.
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Adding Grady’s affidavit and the two contracts he entered into
with plaintiffs to the stipulated record at this juncture would
prejudice Nautilus, as it had no opportunity to examine Grady at
the arbitration hearing.
In addition, plaintiffs offer no support for the theory
that an arbitrator has jurisdiction to issue a further order
relating to the parties’ dispute after a district court confirms
his award and reduces it to a judgment.2 For these reasons,
plaintiffs’ motion to supplement the stipulated record is
denied.
Although the court denies plaintiffs’ motion to supplement,
the court nonetheless explains below, for the sake of clarity,
why consideration of the supplemental evidence would not change
the outcome of the case.
II. Motions for Reconsideration
Reconsideration of an order “is an extraordinary remedy
which should be used sparingly.” Palmer v. Champion Mortg., 465
F.3d 24, 30 (1st Cir. 2006) (internal quotation marks omitted).
To succeed, a movant must “demonstrate that the order was based
2 Even the arbitrator noted that this presented a
“difficult” question. Doc. no. 29-1 at 2. And, none of the
cases plaintiffs offer in support of their argument addresses
the situation here: an arbitrator issuing an additional decision
after a district court has confirmed his award and entered
judgment. See doc. no. 34 at 4-6
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on a manifest error of fact or law . . . .” LR 7.2(d).
Reconsideration is not “a vehicle for a party to undo its own
procedural failures” or a means to “advance arguments that could
and should have been presented to the district court prior to”
its decision. Iverson v. City of Boston, 452 F.3d 94, 104 (1st
Cir. 2006). As such, the court will not grant reconsideration
based on arguments that were not previously made or based on
arguments that were rejected in the prior order. Biltcliffe v.
CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014).
A. Plaintiffs’ Motion for Reconsideration
Plaintiffs argued in their motion for judgment that the
Policy covered the cost of replacing their roofs for two
reasons. First, they argued that “[d]amages for roof
replacement costs are directly linked to the property damage
from the leaking because the roof must be removed to access and
replace the water-damaged roof deck below.” Doc. no. 16 at 10.
Second, they argued that the “damages for roof replacement costs
are ‘causally linked’ to the leaking because the existence of
property damage caused by the leaking was a key reason that the
Arbitrator awarded the full replacement cost as damages.” Id.
at 12. The court rejected both arguments.
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Plaintiffs contend that the court either misapprehended
certain facts or that the supplemental evidence provides a basis
for reconsideration as to both conclusions.3
1. Rip-and-tear damages
Plaintiffs asserted in their motion for judgment that the
roof decks—the plywood directly underneath the roofs—were
damaged by the leaking from McPhail’s roofs and needed to be
repaired or replaced. They argued that because the roof decks
are directly underneath the roofs, the roof decks could not be
repaired or replaced without removing the roofs themselves.
Plaintiffs contended that because the roof decks should be
considered their “property” under the Policy, they are entitled
3 Plaintiffs also suggest that the court should reconsider
its July Order because the court rejected Nautilus’s argument in
its motion for judgment on the record that there was no
occurrence under the Policy. Plaintiffs argue that because
Nautilus bears the burden to show a lack of coverage in this
case, the court should have entered judgment for plaintiffs on
that basis alone. See doc. no. 28-1 at 5. Plaintiffs are
mistaken. Nautilus argued in its motion for judgment that the
cost of replacing plaintiffs’ roofs was not the result of
property damage caused by occurrence. In its supplemental
memorandum, Nautilus specifically addressed whether the cost of
replacing defective workmanship should be considered covered
under a standard CGL policy whenever there is damage to a
plaintiff’s property. Thus, plaintiffs’ argument that they are
entitled to judgment because the court rejected Nautilus’s
primary argument raised in its motion for judgment is without
merit.
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to recover the cost of removing and replacing the roofs which
was necessary to repair or replace the roof decks.
In the July Order, the court noted that no New Hampshire
case has addressed the question of whether so-called “rip-and-
tear” damages are covered under a standard CGL policy. The
court noted that caselaw from other jurisdictions, however,
supports the principle that such damages fall within the scope
of coverage of such policies. Doc. no. 25 at 13-14 (citing
cases).
The court, held, however, that even assuming rip-and-tear
damages are covered under the Policy, plaintiffs did not incur
such damages in this case because the stipulated record showed
that the roof deck did not need to be repaired or replaced.
During oral argument on the parties’ cross-motions, Nautilus’s
counsel stated that although the roof decks on both houses were
stained by the leaking from the defective roofs, they did not
need to be repaired or replaced. Plaintiffs’ counsel did not
correct that statement.4 But even more important, the stipulated
4 Plaintiffs assert that Nautilus’s counsel did not make
such a statement regarding the roof decks during oral argument,
and the court misinterpreted counsel’s representation. That is
simply not the case. The court questioned Nautilus’s counsel
about coverage for repairing damage to the roof decks and
counsel represented, among other things, that “whatever damage
occurred to it was not enough to keep it from being reused.”
Doc. no. 27 at 14:25-15:1. The fact that, as discussed infra,
the stipulated record unambiguously supported Nautilus’s
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record unambiguously supports the contention that the roof decks
did not need to be repaired or replaced. During the
arbitration, several witnesses testified that the roof decks
were reused when plaintiffs replaced McPhail’s roofs. See id.
at 14-15 (citing pages of the stipulated record).
In their motion for reconsideration, plaintiffs argue that
the court’s conclusion (i.e., that they did not incur rip-and-
tear damages) is incorrect. They point to the “lump sum”
contracts between plaintiffs and Grady, which are a part of the
supplemental evidence.5 The contracts provide that plaintiffs
would pay a lump sum for the cost of the roof replacements.
According to Grady’s declaration, which is also part of the
supplemental evidence, the “lump sum proposal included repairing
or replacing whatever damage to the roof deck needed to be fixed
when [Grady] removed the shingles.” Doc. no. 29-2 at ¶ 4.
Grady further states that he was able to reuse most of the
plywood sheathing,” but he “did repair or replace the plywood in
certain places.” Id. at ¶ 6. Plaintiffs contend that Grady’s
counsel’s representation to the court further confirms that the
court did not misinterpret counsel’s statement.
5 There are two separate lump sum contracts, one of which is
to replace Trase’s roof (doc. no. 29-3) and the other to replace
Wallace’s roof (doc. no. 29-4). Only the contract to replace
Wallace’s roof is signed, however. See doc. no. 29-4 at 3.
Because it does not change the court’s analysis, the court
assumes without deciding that Trase and Grady entered into the
proposed contract in document no. 29-3.
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declaration and the lump sum contracts show that they incurred
rip-and-tear damages. The court disagrees.
As discussed above, plaintiffs argued in their motion for
judgment that they were entitled to rip-and-tear damages because
the roof had to be removed and replaced in order to repair the
damage to their property—the roof deck. Doc. no. 16 at 11.
Grady’s declaration and the lump sum contracts do not
support that argument. Plaintiffs did not hire Grady to remove
the roof in order to repair or replace their roof deck. Rather,
as Grady plainly states and as the lump sum contracts show,
plaintiffs hired Grady to replace their roofs and correct
McPhail’s faulty workmanship. The fact that the lump sum
contracts include a provision that Grady would “[r]eplace
plywood where necessary,” does not transform the cost of
replacing plaintiffs’ roofs into rip-and-tear damages. See,
e.g., Lee H. Shidlofsky, Deconstructing CGL Insurance Coverage
Issues in Construction Cases, 9 No. 2 ACCLJ 2, 10 (Aug. 2015)
(noting that rip-and-tear damages are “the costs to rip out non-
defective work in order to repair covered ‘property damage’”
(emphasis added)). Moreover, although it appears Grady replaced
plywood on the roof decks in “certain places,” this does not
establish the need to remove and replace the roofs.
Indeed, plaintiffs appear to acknowledge in their motion
for reconsideration that they did not incur rip-and-tear
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damages, stating that the price they paid to Grady “was to be
the same regardless of the precise extent to which the plywood
and other damaged materials had to be replaced.” Doc. no. 28-1
at 9; see also id. at 10 n.2 (stating that plaintiffs’ “damages
would be the same regardless of the extent of repairs”). Thus,
given that plaintiffs acknowledge that they would have incurred
the same costs even if the roof deck did not need to be repaired
or replaced, their contention that they incurred rip-and-tear
damages is belied by their own statements. In short, the
supplemental evidence does not support plaintiffs’ contention
that they incurred rip-and-tear damages.
2. Causal link
In their motion for judgment, plaintiffs argued the roof
replacement costs were covered under the Policy because they
were “causally linked” to the property damage resulting from the
leaking roofs. In support, plaintiffs pointed to the
arbitrator’s initial decision, asserting that it stated that the
property damage was an “important factor” in awarding the
replacement cost of the roof as damages. Doc. no. 16 at 12.
Thus, plaintiffs argued that because the arbitrator premised his
award of the cost of the roof replacement on the fact that
plaintiffs incurred property damage, the costs of the roof
replacement should be considered sums that McPhail became
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“legally obligated to pay as damages because of . . . property
damage” under the Policy. Doc. no. 14-3 at 11
In the July Order, the court noted that the arbitrator’s
decision does not state that the damage to plaintiffs’ property
was the basis for, or even a factor in, the arbitrator’s
determination that plaintiffs are entitled to recover the cost
of the roof replacements from McPhail. The court rejected
plaintiffs’ arguments as to the “causal link” based on caselaw
from several jurisdictions interpreting the language of a
standard CGL policy.
As discussed above, after the court’s July Order, the
arbitrator issued a Supplemental Order at plaintiffs’ request,
which states, in relevant part:
In short, a critical fact in my finding that
replacement of the roofs was a reasonable remedy for
the Homeowners to employ was that water had intruded
through the roof at each house, which intrusion caused
damage to the interior of each house. Had there been
no showing of water intrusion into each house, full
replacement of the roofs would not have been justified
under the circumstances.
Doc. no. 29-1 at 2. Plaintiffs contend that the arbitrator’s
clarification of this point shows that the costs of replacing
their roofs are covered under the Policy, requiring Nautilus to
indemnify McPhail for those costs.
The arbitrator decided that McPhail’s work did not meet its
obligations under the contracts with plaintiffs because McPhail
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did not properly construct the roofs on plaintiffs’ houses. He
also found that McPhail’s defective workmanship allowed water to
intrude into the houses, causing additional damage to
plaintiffs’ property. As a result, the arbitrator found that
McPhail was liable to plaintiffs for damages to cover the costs
of its defective work and the resulting property damage. The
damages awarded to plaintiffs by the arbitrator covered the
costs of replacing the defectively installed roofs, along with
other costs of repairing their damaged property.
The issue presented in this case is different. The court
is not tasked with determining McPhail’s liability. Rather, the
court must determine the extent to which the Policy covers
McPhail’s liability to plaintiffs, as determined by the
arbitrator. The Policy indemnifies McPhail for damages incurred
because of property damage caused by an occurrence. It does not
indemnify McPhail for the cost of replacing or repairing its
defective workmanship.
As the court noted in the July Order, plaintiffs have
failed to point to any caselaw that supports a holding that the
cost of repairing a contractor’s defective work is covered under
a standard CGL policy absent damage to the defective work itself
or in the context of rip-and-tear damages. See doc. no. 25 at
19-20. Plaintiffs similarly do not offer any such caselaw in
their motion for reconsideration. The arbitrator’s Supplemental
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Order does not change that deficiency in plaintiffs’ argument.
For these reasons, plaintiffs’ motion for reconsideration is
denied.
B. Nautilus’s Motion for Reconsideration
As discussed supra, during the arbitration hearing, the
parties stipulated “that the substantially prevailing party in
this action must be awarded attorney’s fees in an amount to be
determined by the arbitrator, together with expenses.” Doc. no.
14-2 at 3. After the arbitrator ruled in plaintiffs’ favor as
to McPhail’s liability, plaintiffs submitted legal bills and
documentation to the arbitrator to support their request for
fees and expenses. McPhail objected.
The arbitrator awarded plaintiffs $176,898.85 in attorneys’
fees and expenses, breaking down the award as follows: $127,933
in attorneys’ fees; $44,328.46 in expert witness expenses; and
$4,637.49 in other expenses. Nautilus paid plaintiffs amounts
awarded for expert witness and other expenses, as well as pre-
and post-judgment interest. It asserted, however, that the
award of attorneys’ fees was not covered by the Policy and
refused to pay that amount on McPhail’s behalf. Plaintiffs
sought in this case a declaration that the arbitrator’s
attorneys’ fees award is covered by the Policy.
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In its motion for judgment, Nautilus, which bears the
burden of showing that coverage does not exist, referred to the
Policy’s “Supplementary Payments” provision, which provides that
Nautilus is obligated to pay all “costs taxed against the
insured” in any suit that Nautilus defends, as well as any pre-
and post-judgment interest. The Supplementary Payments
provision, however, does not mention attorneys’ fees. Nautilus
argued that, therefore, it is not obligated to indemnify McPhail
for those fees.
In the July Order, the court held that Nautilus was
required under the Policy to indemnify McPhail for the
arbitrator’s attorneys’ fees award. The court held that
although the Policy’s “Supplementary Payments” provision did not
mention attorneys’ fees, the phrase “costs taxed against the
insured” was ambiguous. The court construed the ambiguity
against Nautilus, as required under New Hampshire law, and held
that the phrase includes attorneys’ fees.
In moving for reconsideration of that portion of the July
Order, Nautilus makes several arguments: (1) “costs” is a
defined term under Maine law and does not include attorneys’
fees; (2) the cases holding that the phrase “costs taxed against
the insured” from various jurisdiction which the court cited in
the July Order are all distinguishable; and (3) the court
committed a manifest error of law when it considered a
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subsequent change in the language of a standard CGL policy.
Plaintiffs dispute each argument.
Nautilus’s litigation strategy on this question is too
little, too late. In its motion for judgment, Nautilus devoted
approximately one page to the issue of attorneys’ fees and cited
no caselaw. With regard to the Supplementary Payments
provision, Nautilus stated:
The supplementary payments provision of the policy
does not provide coverage for attorneys’ fees. Given
that the policy does provide for payments of costs,
pre-judgment interest, and post-judgment interest, the
omission of a similar provision for attorneys’ fees
demonstrates that attorneys’ fees are not compensable
as a supplementary payment.
Despite plaintiffs responding with ample caselaw supporting
their argument that the phrase “costs taxed against the insured”
is ambiguous, Nautilus did not file a response.
Nautilus’s motion for reconsideration raises arguments that
could and should have been raised in its motion for judgment.
Thus, Nautilus is not entitled to reconsideration of the July
Order for that reason alone, and the court denies the motion on
that basis.6
6 Regardless, had Nautilus elected to raise these arguments
in its motion for judgment, they would not have carried the day.
Each lacks merit for the reasons stated in plaintiffs’
objection.
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CONCLUSION
For the foregoing reasons, plaintiffs’ motion to supplement
the record (doc. no. 29) and motion for reconsideration (doc.
no. 28), and Nautilus’s motion for reconsideration (doc. no. 26)
are denied.
In the July Order, the court held in abeyance its ruling as
to whether plaintiffs are entitled to costs and reasonable
attorneys’ fees incurred in bringing this suit under RSA 491:22-
b. The parties shall notify the court as to whether they have
reached an agreement as to costs and fees within 21 days of the
date of this order. If the parties cannot reach an agreement,
plaintiffs shall file a brief in support of their request within
14 days of the day notification is provided to the court.
Nautilus shall then have 14 days to file a response.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
November 22, 2019
cc: Counsel of Record.
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