STEVEN J. McAULIFFE, District Judge.
In this insurance dispute, Cam-Sam Real Estate Holding, LLC, asserts claims of negligence and negligent misrepresentation against third party defendants, Mourer-Foster, Inc., and John T. Foster (collectively, "Foster"). Foster has moved to dismiss Cam-Sam's claims against it. Cam-Sam objects.
Cam-Sam is the owner of a commercial building and property located at 21 Londonderry Turnpike, in Hooksett, New Hampshire. Cam-Sam rented Unit 1 of the building to D La Pooch Hotel, LLC, for a term of five years. The lease between Cam-Sam and D La Pooch required that D La Pooch obtain "comprehensive liability insurance on the Leased Premises" carried "in the name of and for the benefit of Tenant and Landlord," and written on "an occurrence" basis. Docket No. 15, ¶ 10. The lease further mandated the following with respect to coverage: at least $1,000,000 "in case of death or injury to one person;" $1,000,000 "in case of death or injury to more than one person in the same occurrence;" and $250,000 "in case of loss, destruction or damage to property." Docket No. 15, ¶ 10.
Consistent with those obligations, D La Pooch provided Cam-Sam with a Certificate of Liability Insurance prepared by its insurance agent, Foster. The Certificate relates to the following insurance policies: a Commercial General Liability/Pet Groomer's Professional Liability policy, identified as number 81SBAPP8836 (the "Policy"); a Workers Compensation and Employers' Liability policy; and an Animal Bailee/Business Personal Property policy. All policies are issued by Hartford Fire Insurance
Following the termination of D La Pooch's tenancy, Cam-Sam discovered significant damage to the premises, and subsequently filed suit against D La Pooch. Cam-Sam also initiated this declaratory judgment action against its own insurer, Merchants Mutual, and Hartford. In response, Hartford moved for declaratory judgment against Cam-Sam determining that it was not entitled to coverage. According to Cam-Sam, Hartford has alleged that Cam-Sam is not an additional insured under the policies issued to D La Pooch, and that there is no coverage under Hartford's policies for "damage to rented premises."
Based on Hartford's position, Cam-Sam brought claims against Foster. Cam-Sam alleges that, to the extent Hartford is correct, Foster is liable for preparing and delivering an inaccurate Certificate that misrepresented the policies. Cam-Sam further alleges that it "was an intended and named beneficiary" of the Certificate (
When ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must "accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader."
In other words, "a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."
Generally, a court must decide a motion to dismiss exclusively upon the allegations set forth in the complaint and the documents specifically attached, or convert the motion into one for summary judgment.
Turning first to Cam-Sam's allegations against Foster relating to its status as an "additional insured" under the referenced policies, it should be noted that Cam-Sam incorrectly characterizes the position taken by Hartford. Hartford does not generally allege, as Cam-Sam contends, that Cam-Sam is not an "additional insured." Hartford, instead, alleges that Cam-Sam is not an "additional insured" under the
As for Cam-Sam's claims against Foster that relate to the Certificate's attestation of coverage for real property damage under the general liability policy, those claims are subject to dismissal as well. The Certificate discloses that the Commercial General Liability Policy, under which Cam-Sam is an additional insured, provides coverage for "damage to rented premises ([each] occurrence)" up to $1,000,000. Doc. No. 15-1. And, the Policy plainly recites that it provides $1,000,000 in coverage for "Damages to Premises Rented to You." Document No. 10-1, at 14.
Whether the Policy covers the property damage at issue here is a separate question. The Certificate reflects the Policy's limitations, providing: "the insurance afforded by the policies described herein is subject to the terms, exclusions and conditions of such policies." Document No. 15-1. Accordingly, it cannot be said that the Certificate inaccurately reflects the coverage procured by D La Pooch. The Certificate describes the coverage in terms of the Policy provisions, which are what they are. Therefore, Cam-Sam's claims fail for the simple reason that the Certificate is not, as Cam-Sam alleges, inaccurate or misleading.
Cam-Sam also notes that Foster's motion must be denied because, at this stage, the Court must accept the allegations in its complaint as true. In its complaint, Cam-Sam seems to contend that the Certificate must be inaccurate if Hartford is able to prove its claims. And, Cam-Sam says, because Foster's arguments in support of its motion to dismiss necessarily rely on the allegations in Cam-Sam's complaint being false, the motion to dismiss must be denied at this stage of the litigation.
Cam-Sam actually seems to be objecting to Foster's reliance on the language of the Certificate and Hartford's Policy — that is, on matters outside the complaint itself. But, Foster's reliance on both documents is entirely proper: both documents were included with the pleadings and referenced throughout, and are central to the claims.
Cam-Sam's claims against Foster must be dismissed because the complaint does not plausibly allege that the Certificate misrepresents either the Policy or Cam-Sam's status as an additional insured. A plain reading of the Certificate and the Policy makes clear that the Certificate accurately reports the existence of coverage, coverage types, and limits of coverage under the Hartford policy issued to D La Pooch, and that Cam-Sam is an additional insured for general liability claims. "When a complaint annexes and incorporates by reference a written instrument, any inconsistencies between the complaint and the instrument must be resolved in favor of the latter."
For the foregoing reasons, and for those given in defendant's memorandum in support of its motion, defendant's motion to dismiss (document no. 22) is