LYNCH, Chief Judge.
Lyman Morse Boatbuilding, Inc. (LMB) of Maine contracted to build a luxury yacht for Russ Irwin. Unhappy with the completed yacht, in 2011 Irwin brought an arbitration proceeding against LMB and Cabot Lyman, the controlling owner of LMB, alleging that the vessel had numerous defects. LMB and Cabot Lyman tendered defense of the arbitration complaint to their insurer, Northern Assurance Company of America, but Northern Assurance refused to defend the insureds. So the insureds filed this federal suit in 2012 seeking to recover the costs and attorneys' fees that they incurred in the arbitration proceeding.
The district court held that Northern Assurance had a duty to defend Cabot Lyman, the individual, but not LMB, the corporation; it then awarded to Cabot Lyman 50 percent of the attorneys' fees incurred during the arbitration by the two insureds together. Each side was unhappy and we are faced with appeals and cross-appeals. We conclude that on the pertinent facts Northern Assurance owed neither insured a defense under Maine law. Thus, we affirm in part, reverse in part, and remand for entry of judgment in favor of Northern Assurance.
On July 22, 2011, Irwin filed an arbitration complaint against LMB and Cabot Lyman, claiming damages related to the allegedly defective construction of a 52-foot custom sailing vessel.
That complaint alleged eight causes of action: intentional fraud, negligent misrepresentation, constructive fraud, breach of contract, rejection and revocation of acceptance under the Uniform Commercial
The arbitration complaint contained two paragraphs naming Cabot Lyman. First, Irwin alleged that Cabot Lyman, the controlling owner of LMB, was the alter ego of the corporation, and alleged that "[a] unity of interest exists between [Cabot] Lyman and [LMB] and injustice and fraud can only be avoided by piercing the corporate veil" and holding Cabot Lyman jointly and severally liable for the wrongs alleged.
Second, in the course of alleging violations of Maine's unfair trade practices laws, the complaint stated that LMB and Cabot Lyman
After the insurer refused their request for defense, LMB hired a law firm, Thompson & Bowie, LLP, to represent both it and Cabot Lyman in the arbitration. That firm then filed this lawsuit on behalf of the insureds, seeking to recover from Northern Assurance the costs and attorneys' fees incurred in the arbitration.
On January 4, 2008, Northern Assurance had issued a package insurance policy to LMB and Cabot Lyman. The named insureds listed in the Declarations of the policy are "Lyman Morse Boatbuilding Co., Inc." and "Cabot & Heidi Lyman ATIMA." "ATIMA" stands for "as their interests may appear." Section III of the package policy provides the insureds with Commercial General Liability (CGL) insurance. It states in relevant part as follows:
"Property damage" is defined as "[p]hysical injury to tangible property, including all resulting loss of use of that property" or "[l]oss of use of tangible property that is not physically injured." "Occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." "`Suit' means a civil proceeding in which damages because of ... `property damage'... to which this insurance applies are alleged," and includes "[a]n arbitration proceeding in which such damages are claimed and to which the Insured must submit."
Importantly, the policy excludes from coverage "`[p]roperty damage' to `your product' arising out of it or any part of it." This exclusion, common to CGL policies, is generally called the "your product" exclusion. "Your product," in turn,
On cross-motions for summary judgment, the district court held that Northern Assurance had no duty to defend LMB, but that it did have an obligation to defend Cabot Lyman in the arbitration proceeding. Lyman Morse Boatbuilding, Inc. v. N. Assurance Co. of Am., Inc., No. 2:12-cv-313-DBH, 2013 WL 5435204, at *1 (D.Me. Sept. 27, 2013) [hereinafter Lyman I ]. The court held that the "your product" exclusion excused Northern Assurance from any duty to defend LMB because the only "property damage" alleged by the arbitration demand was to the yacht built by LMB. Id. at *4. "There is no suggestion" in the arbitration demand, the court explained, "that somehow the yacht's defects damaged other property." Id.
However, the court determined that Northern Assurance did have a duty to defend Cabot Lyman, the individual, notwithstanding the "your product" exclusion, because "[t]he yacht was the boatyard's product, not Cabot Lyman's product." Id.
In a separate order on the issue of damages, the district court held that Cabot Lyman was entitled to recover 50 percent of the attorneys' fees that LMB and Cabot Lyman jointly incurred in defending the arbitration proceeding. Lyman Morse Boatbuilding, Inc. v. N. Assurance Co. of Am., Inc., No. 2:12-cv-313-DBH, 2014 WL 901445, at *1, *4 (D.Me. Mar. 6, 2014) [hereinafter Lyman II]. Reasoning that "[b]oth the corporation and the individual needed a defense, [and that] the nature of their defenses overlapped substantially, albeit not entirely," the court concluded that an equal division of fees between the corporation and the individual was appropriate. Id. at *3-4.
Northern Assurance has appealed, arguing that it did not owe a duty to defend Cabot Lyman in the arbitration proceeding, and LMB and Cabot Lyman have cross-appealed, arguing that Northern Assurance did owe a duty to defend LMB. Both parties contend that the district court's ruling on the duty to defend and the damages issue was error.
"The district court's conclusion on the duty to defend is reviewed de novo." Metro. Prop. & Cas. Ins. Co. v. McCarthy, 754 F.3d 47, 49 (1st Cir.2014) (citing Bucci v. Essex Ins. Co., 393 F.3d 285, 290 (1st Cir.2005)); see also Mitchell v. Allstate Ins. Co., 36 A.3d 876, 879 (Me.2011) (analysis of insurer's duty to defend under Maine law is a pure question of law reviewed de novo).
The parties agree that Maine law applies to this dispute. To determine whether an insurer owes its insured a duty to defend, Maine courts apply the "comparison test," which involves a "comparison of the allegations in the underlying complaint with the provisions of the insurance policy" to determine if the claims alleged are within the coverage of the policy. Mitchell, 36 A.3d at 879. "[A]n insurer must provide a defense if there is any potential that facts ultimately proved could result in coverage." Id.; accord Howe v. MMG Ins. Co., 95 A.3d 79, 81 (Me.2014) (quoting Cox v. Commonwealth Land Title Ins. Co., 59 A.3d 1280, 1283 (Me.2013)). "Because the duty to defend is broad, any ambiguity in the policy regarding the insurer's duty to defend is resolved against the insurer, and policy exclusions are construed strictly against the insurer." Mitchell, 36 A.3d at 879 (citations omitted). At the same time, courts may "not speculate about causes of action that were not stated" in the complaint. York Golf & Tennis Club v. Tudor Ins. Co., 845 A.2d 1173, 1175 (Me.2004).
We first address whether Northern Assurance had a duty to defend LMB in the arbitration proceeding. LMB concedes that "the `your product' exclusion serves to exclude coverage for any property sold, handled, distributed or disposed of by" LMB, which includes the allegedly defective yacht. But, LMB argues, Northern Assurance nonetheless owed a duty to defend it in the arbitration proceeding because "the allegations in the Arbitration Complaint provide a basis for Russ Irwin to prove damage to his own or others' personal property, which would fall within
This argument fails. As the district court correctly observed,
Lyman I, 2013 WL 5435204, at *4. Thus the complaint did not allege any facts that even suggest the potential for a covered claim.
Plaintiffs resist this conclusion, pointing out that, in the course of alleging constructive fraud, Irwin alleged that LMB and Cabot Lyman "breached the trust and confidence which [Irwin] entrusted with them in the failed construction and completion of the Vessel and in putting [Irwin]'s life, limb and property and those of his family and loved ones at risk on the oceans and at sea." But this passing reference to a "risk" to property is not sufficient to trigger a duty to defend under Maine law.
In Baywood Corp. v. Maine Bonding & Casualty Co., 628 A.2d 1029 (Me.1993), the Maine Law Court found that a complaint alleging that the insured inadequately designed a sewer system for a condominium complex did not fall within the coverage of a CGL policy because it sought only "the cost to replace or upgrade the [sewer] system." Id. at 1031. Although "the complaint refer[red] generally to property damage," the Law Court explained, it "allege[d] no physical damage to the [condominium] units." Id. Thus, the insurer had no duty to defend. Id.
So it is here. While referring generally to a "risk" to personal property, Irwin's arbitration complaint did not allege any damage to such property or request any relief for personal property damage. Instead, the complaint requested several specific items of relief related to the damage sustained by the defective vessel itself and the expense that Irwin went to in discovering and attempting to rectify its defects. "[B]ecause [Irwin's] complaint d[id] not allege actual damage to property but rather s[ought] damages for replacing defective workmanship, which is a business risk specifically excluded from the policy, [Northern Assurance] ha[d] no obligation to defend the underlying action." Id.
Plaintiffs erroneously argue that because the arbitration complaint did not foreclose the possibility that Irwin's personal property was damaged, LMB was entitled to a defense. That is not a correct statement of the law. If plaintiffs' articulation of the duty to defend were correct, that would make the duty virtually limitless.
We conclude otherwise as to the court's ruling that Northern Assurance did have a duty to defend Cabot Lyman in the arbitration proceeding because the "your product" exclusion did not apply to him. We find that the exclusion does apply to Cabot Lyman and thus hold that Northern Assurance had no duty to defend him in the arbitration proceeding.
In interpreting this insurance contract, our task is to "`effect the parties' intentions ... construed with regard for the subject matter, motive, and purpose of the agreement, as well as the object to be accomplished.'" State v. Murphy, 861 A.2d 657, 661 (Me.2004) (alteration in original) (quoting Handy Boat Serv., Inc. v. Prof'l Servs., Inc., 711 A.2d 1306, 1308 (Me. 1998)). We must examine the entire agreement, giving the language its plain meaning. Id. (citing Am. Prot. Ins. Co. v. Acadia Ins. Co., 814 A.2d 989, 993-94 (Me. 2003)).
The insurance policy defines "your product" as "goods or products ... manufactured,
Northern Assurance argues that the "your product" exclusion is "not insured-specific" — the operation of the exclusion does not depend on the identity of the insured against whom the suit is brought. It adds that this must at least be true here, where the other insured, as a corporate officer, has allegedly acted as an alter ego of the corporation that designed the product, and the policy explicitly precludes coverage for representations made with respect to the quality of the corporate insured's products.
Cabot Lyman and LMB cite no case or policy language that refutes that interpretation of the insurance contract on the facts here. Instead, they rely on the rule that ambiguities in insurance contracts should be resolved against the insurer. That rule is inapplicable. The "your product" exclusion is not ambiguous in its application here. Irwin's complaint alleged damages to the yacht; the policy excludes damages to "your product"; "you" is defined as, inter alia, LMB; the yacht is LMB's product; thus, the policy unambiguously excludes the allegations of the complaint. Accordingly, on these facts, we find that Northern Assurance had no duty to defend Cabot Lyman in the arbitration proceeding.
To hold otherwise would undercut the well-recognized purpose of CGL insurance policies, as articulated by the Maine Law Court. CGL policies are designed to cover "occurrence of harm risks" but not "business risks." Peerless Ins. Co. v. Brennon, 564 A.2d 383, 386 (Me.1989). As the Law Court explained,
Id. (quoting Note, Baybutt Construction Corp. v. Commercial Union Insurance Co.: A Question of Ambiguity in Comprehensive General Liability Insurance Policies, 36 Me. L.Rev. 179, 182 (1984)). The type of harm alleged in Irwin's complaint is, by contrast, a "business risk" that is excluded under the terms of the CGL policy Northern Assurance issued to LMB and Cabot Lyman. There is no principled reason why that result would change because Irwin named Cabot Lyman as a defendant on an alter ego theory and for representations he made as a director and president of LMB about a yacht manufactured by LMB. As was recognized in Cle Elum Bowl, Inc. v. N. Pac. Ins. Co., 96 Wn.App. 698, 981 P.2d 872 (1999), "an insured director and officer ... is subject to the same exclusions that deny coverage to the corporation." Id. at 877.
We note that a contrary holding would also create perverse incentives when plaintiffs sue a corporation for defective workmanship. If these plaintiffs could trigger a duty to defend on the part of the corporation's CGL insurer not otherwise obligated to provide a defense by simply adding a corporate officer or employee as a defendant, they would often have the incentive to do so in order to add another pocket to the other side of the negotiating table. As a consequence, the "your product" exclusion, long a staple of CGL policies, would be rendered a dead letter. We decline to read the policy to allow such a result, absent any evidence, of which there is none, that this was the parties' intent.
We hold that Northern Assurance did not owe a duty to defend LMB or Cabot Lyman in the underlying arbitration proceeding. The decision of the district court is affirmed in part and reversed in part. We remand for entry of judgment in favor of Northern Assurance. Costs are awarded to Northern Assurance Company of America.