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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2018-0702

STEVEN ZANNINI & a.

v.

PHENIX MUTUAL FIRE INSURANCE COMPANY

Argued: November 6, 2019

Opinion Issued: December 17, 2019

Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Roy W. Tilsley,

Jr. and Hilary Holmes Rheaume on the brief, and Mr. Tilsley orally), for the 

plaintiff.

Primmer Piper Eggleston & Cramer, PC, of Manchester (Gary M. Burt

and John D. Prendergast on the brief, and Mr. Burt orally), for the defendant.

DONOVAN, J. The plaintiffs, Steve and Pamela Zannini, appeal an order 

of the Superior Court (Kissinger, J.) granting summary judgment to the 

defendant, Phenix Mutual Fire Insurance Company, on the plaintiffs’ breach of 

contract and declaratory judgment claims. The plaintiffs argue that: (1) a 

provision in the insurance policy at issue requiring that suits be brought 

within one year of the date of loss is unenforceable because it violates public 

policy; and (2) genuine issues of material fact exist as to whether the 
2

defendant’s communications tolled the one-year period, the defendant is

estopped from asserting it as a defense, or the defendant waived it as a 

defense. We affirm. The one-year limitation period does not violate the public 

policy underlying statutes of limitations. Further, the communications 

between the parties did not create issues of material fact as to whether the oneyear period was tolled or whether the defendant waived or was otherwise 

estopped from asserting the provision as a defense.

I. Facts

The following facts are drawn from the evidence presented to the trial 

court. On March 4, 2016, the plaintiffs’ Ashland residence sustained 

“significant flooding” as the result of burst pipes. The house was insured by

the defendant, and the plaintiffs filed a claim for water damage. The defendant 

sent an adjuster to investigate, who instructed the plaintiffs to remove the floor

of the house so that he could investigate the area underneath. After they did 

so, the house began to collapse, and the plaintiffs repaired its framing to 

prevent it from collapsing completely. As a result of removing the floor, the 

plaintiffs “suffered a complete loss [of the house] and direct physical loss of 

[their] personal property and use of the [house] for a substantial amount of 

time.” On May 3, 2016, the defendant sent the plaintiffs a letter denying 

coverage of the damage caused by the collapse.1

The insurance policy included the following “Suit Against Us” provision: 

“No action can be brought unless the policy provisions have been complied 

with and the action is started within one year after the date of loss.” Following 

the defendant’s denial notice, the parties attempted to negotiate a resolution to

the claim. On February 9, 2017, defendant’s counsel sent plaintiffs’ counsel a 

communication requesting “all documentation” relating to the collapse. 

Defendant’s counsel sent plaintiffs’ counsel another communication on March 

19, 2017, stating that the defendant “would like to resolve the claim if 

possible.” On September 8, 2017, plaintiffs’ counsel sent defendant’s counsel a 

letter with photographs of the damaged floor. On January 15, 2018, 

defendant’s counsel sent plaintiffs’ counsel a communication stating that the 

defendant’s position had not changed.

On February 23, 2018, nearly two years after the pipes burst, the 

plaintiffs filed a breach of contract and declaratory judgment action against the 

defendant. The defendant moved for summary judgment, on the basis that the 

plaintiffs’ suit was barred by the policy’s one-year time-limitation provision.2 

 

1

The letter states that the additional damage was not covered because the defendant was “not 

given the opportunity to inspect the additional damages prior to tear down.” Mr. Zannini 

maintained that he and his wife “never denied [the adjuster], or any representative of [the 

defendant] . . . , access to the [house].” 

2

The record does not indicate the date of collapse. However, assuming that the date of collapse 
3

The plaintiffs opposed summary judgment, arguing that the provision is 

unenforceable because it violates the public policy underlying the statute of 

limitations, that the defendant’s conduct tolled the time limit, and that genuine 

issues of material fact exist as to whether the defendant either waived or is 

estopped from asserting the time limit as a defense.

The trial court granted the summary judgment motion, concluding that

allowing parties to contract for a shorter period to initiate an action than the 

statutorily prescribed limitation period does not violate the public policy

underlying the statute of limitations. It also concluded that the provision was

not unreasonable, and not unenforceable because the plaintiffs did not show 

that it was impossible for them to comply with the provision. Finally, the court 

concluded that the communications between the parties’ counsel did not create 

an issue of material fact as to whether the defendant tolled the one-year period,

was estopped from asserting it as a defense, or waived it. The plaintiffs filed a 

motion for reconsideration, which the trial court denied. This appeal followed.

II. Standard of Review

We review a trial court’s grant of summary judgment de novo. Clark v. 

N.H. Dep’t of Emp’t Sec., 171 N.H. 639, 650 (2019). When reviewing 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. Id. If our review of that evidence reveals no 

genuine dispute of material fact, and if the moving party is entitled to judgment 

as a matter of law, we will affirm the grant of summary judgment. Id.

III. Analysis

A. Public Policy

The plaintiffs first argue that the insurance policy’s one-year timelimitation provision is unenforceable because it violates the public policy

underlying the statute of limitations. In general, parties to a contract are 

bound by the terms of an agreement freely and openly entered into and courts 

cannot improve the terms or conditions of an agreement that the parties 

themselves have executed or rewrite contracts merely because they might 

operate harshly or inequitably. Rizzo v. Allstate Ins. Co., 170 N.H. 708, 713

(2018). However, we will not enforce a contract or contract provision that 

contravenes public policy. Id.

 

occurred prior to the May 3, 2016 denial letter, whether the one-year time-limitation provision was 

triggered on the date of the initial water damage or the date of collapse does not affect our 

decision. 
4

The declaration of public policy is primarily a matter for the legislature. 

Id. We have recognized two legislative public policy goals underlying statutes

of limitations. See City of Rochester v. Marcel A. Payeur, Inc., 169 N.H. 502, 

508 (2016); West Gate Village Assoc. v. Dubois, 145 N.H. 293, 298 (2000). 

“Such statutes . . . represent the legislature’s attempt to achieve a balance 

among State interests in protecting both forum courts and defendants 

generally against stale claims and in insuring a reasonable period during which 

plaintiffs may seek recovery on otherwise sound causes of action.” Payeur, 169 

N.H. at 508 (quotation omitted); see Dubois, 145 N.H. at 298. The plaintiffs 

argue that the time-limitation provision is unenforceable because it violates

both public policies described above: first, because parties may not contract to 

shorten the statutory time period to file suit and, second, because a one-year 

limitation period that accrues from the date of loss or includes a condition 

precedent is unreasonable. We address each argument in turn.

The plaintiffs contend that New Hampshire law prohibits parties from 

contracting for a shorter limitations period than the statutory period

established by the legislature. In support of this proposition, they rely

primarily upon our decisions in Dubois and Payeur. In Dubois, 145 N.H. at 

298-99, we concluded that a party could not “circumvent the legislature’s 

declaration of public policy . . . by contractually extending the three-year 

statute of limitations [to six years] before any cause of action exists.” Similarly, 

in Payeur, 169 N.H. at 508, we declined to allow a municipality to file suit

alleging a breach of contract after the statute of limitations had expired

because doing so would, in part, contravene the public policy underlying the 

statute of limitations. Our analysis in both cases centered upon the public 

policy implications of allowing parties to bring claims after, not before, the 

statute of limitations expired. See id.; Dubois, 145 N.H. at 298-99.

The plaintiffs draw from these decisions the principle that parties may 

not contractually alter the statutory time period to file suit, equating the public 

policy implications of contracting for a period that is longer than the statutory 

period to the implications of contracting for a period that is shorter than the 

statutory period. But the plaintiffs’ reasoning is flawed, given that the public

policy implications of the two propositions are fundamentally different. The 

statute of limitations reflects the legislature’s determination that a cause of 

action brought after the statutory time period has expired is stale and unfit for 

judicial consideration. See Payeur, 169 N.H. at 508. Allowing parties to 

contract to bring a cause of action after the statutory period has expired thus

opens courts and defendants to stale claims. See id. A cause of action brought 

within the period established by the statute of limitations, on the other hand, is 

not considered stale. Allowing parties to agree that a cause of action must be 

brought before the expiration of the statutory period does not raise similar 

concerns over stale claims and does nothing to undermine the policy objectives 

of protecting parties and courts from stale claims. See id.; see also John J. 

Kassner & Co. v. City of New York, 389 N.E.2d 99, 103 (N.Y. 1979) (noting that 
5

allowing parties to agree that a “suit must be commenced within a shorter 

period than is prescribed by law . . . more effectively secures the end sought to 

be attained by the statute of limitations” (quotation omitted)).

Furthermore, a contractual provision allowing parties to file a cause of 

action after the statute of limitations has expired in essence renders the statute 

a nullity. A contractual provision providing for less than the statutory time to 

file a cause of action, on the other hand, does not render that statute 

superfluous because the cause of action must still comply with the statute. 

Thus, for example, if the defendant waived the one-year limitations period set 

forth in the policy, any cause of action pursued by the plaintiffs would still be 

required to comply with the statute of limitations. Allowing parties to agree to 

a time period that is shorter than the statute of limitations, therefore, does not 

allow parties to “circumvent” the public policy underlying the statute. Cf.

Dubois, 145 N.H. at 298-99. Accordingly, we conclude that the one-year 

limitation provision does not violate the public policy of protecting courts and 

defendants from stale claims.

The plaintiffs next argue that the provision violates public policy because 

it provides plaintiffs less than a full year to file suit and is therefore 

unreasonable. They rely upon Clark v. Truck Insurance Exchange, 598 P.2d 

628 (Nev. 1979), to support this argument. In Clark, the Nevada Supreme 

Court noted that a one-year time limitation could “represent a reasonable 

balance between the insurer’s interest in prompt commencement of action and 

the insured’s need for adequate time to bring suit.” Id. at 629. However, the 

court ruled that an insurance policy provision requiring that a suit be brought 

within one year of the date of loss would run from the date the insurer denied 

the claim, because the policy had “built-in delays” that allowed the insurer to 

delay denial of the claim until the one-year period had expired. Id.

Even assuming, without deciding, that, as held by the Clark Court, the 

one-year limitation period was triggered by the defendant’s denial of the 

plaintiffs’ claim, rather than the date of their loss, the plaintiffs’ action is still 

time-barred. Cf. id. at 629. The defendant denied the insurance claim on May 

3, 2016, yet the plaintiffs did not file suit until February 23, 2018, more than 

one year after the date of denial. We therefore find Clark unavailing to the 

plaintiffs.

The plaintiffs also contend that the one-year limitation provision is 

unreasonable because it prevents an insured party from filing suit unless “the 

policy provisions have been complied with.” They argue that this “condition 

precedent” renders the policy unreasonable. They do not argue that this 

condition renders the one-year time-limitation provision unreasonable as 

applied to them. Rather, they argue that it is conceivable that an insured 

could not comply with the policy provisions within one year.
6

As support for this argument, the plaintiffs rely upon Executive Plaza, 

LLC v. Peerless Insurance Co., 5 N.E.3d 989 (N.Y. 2014). In Executive Plaza, 

the New York Court of Appeals concluded that a two-year time-limitation

provision was unreasonable as applied because it included a condition 

precedent that could not be met within two years. Id. at 990. The provision

thus functioned as a “nullification of the claim,” and not a limitation period. 

Id. at 992. The court noted that there was nothing “inherently unreasonable” 

about a two-year limitation period, and that it had upheld one-year and sixmonth limitation periods. Id. at 991. Here, by contrast, there is nothing in the 

record that shows, and the plaintiffs do not contend, that they could not

comply with the policy provisions within the one-year period. The timelimitation provision thus did not function as a “nullification” of their claim. Cf. 

id. at 992. Furthermore, the court in Executive Plaza explained that timelimitation provisions should be examined under the facts of a particular case. 

Id. This observation also renders Executive Plaza inapposite, because the 

plaintiffs do not argue that they could not comply with the provision’s condition

within one year, only that it could theoretically happen. Cf. id.

Accordingly, we conclude that the one-year limitation is not 

unreasonable as applied to the plaintiffs. They point to no evidence in the 

record which suggests that, based upon the application of the time-limitation 

provision to their factual circumstances, they did not have sufficient time to 

initiate a suit. We therefore conclude that the one-year limitation provision as 

applied here is not unreasonable.

3 

B. Tolling, Estoppel, and Waiver

The plaintiffs next argue that there are genuine issues of material fact as 

to whether the defendant’s communications tolled the limitation period, the 

defendant is estopped from asserting the limitations provision as a defense, or 

the defendant waived it. We address each argument in turn.

The plaintiffs first argue that communications between the parties’ 

counsel create an issue of material fact as to whether the one-year period was 

tolled. The statute of limitations may be tolled by a party’s acknowledgment of 

a subsisting debt accompanied by a direct and unqualified admission that the 

party is liable and willing to pay. A&B Lumber Co. v. Vrusho, 151 N.H. 754, 

756 (2005). On February 9, 2017, defendant’s counsel requested “all 

documentation” relating to the collapse from plaintiffs’ counsel. On March 19, 

 

3 We note that other courts have upheld one-year time-limitation provisions. See, e.g., Thornton v. 

Georgia Farm Bureau Mut. Ins. Co., 695 S.E.2d 642, 643 (Ga. 2010) (commenting that “courts 

have . . . enforced . . . contractual periods of limitation, including the one-year limitation in 

insurance policies”); Eagle Fire Corp. v. First America Ins., 678 A.2d 699, 704 (N.J. 1996) (noting 

that the New Jersey Supreme Court “has routinely upheld contract provisions that create a oneyear time limitation in which claimants may bring suit”).
7

2017, defendant’s counsel sent plaintiffs’ counsel a communication stating that 

the defendant “would like to resolve this claim if possible.”

Assuming, without deciding, that a contractual limitation period may be 

tolled in the same manner as a statutory period, we conclude that the 

communications do not create an issue of material fact as to whether the 

defendant acknowledged a debt or made a direct or unqualified admission of 

liability or willingness to pay. In the communications, the defendant merely 

requested information about the damage and expressed a desire to “resolve”

the claim “if possible.” The defendant did not acknowledge any obligation to 

the plaintiffs, nor did its communication suggest that the policy provided 

coverage for the damage caused by the collapse. See Soper v. Purdy, 144 N.H. 

268, 270-71 (1999) (“‘[I]f the expressions be equivocal, vague and 

indeterminate, leading to no certain conclusion, . . . we think they ought not to 

go to a jury as evidence of a new promise to revive the cause of action.’”

(quoting Shepherd v. Thompson, 122 U.S. 231, 237 (1887)).

The plaintiffs next argue that the communications between the parties’ 

counsel create a dispute of material fact as to whether the defendant is 

estopped from asserting the time-limitation provision as a defense. The 

plaintiffs assert that the defendant told the plaintiffs it intended to resolve the 

dispute through negotiations, thereby inducing them to rely upon that 

representation until the one-year period elapsed. A party asserting equitable

estoppel must prove four elements: (1) a representation or concealment of 

material facts made with knowledge of those facts; (2) the party to whom the 

representation was made must have been ignorant of the truth of the matter; 

(3) the representation must have been made with the intention of inducing the 

other party to rely upon it; and (4) the other party must have been induced to 

reasonably rely upon the representation to his or her injury. Sunapee 

Difference v. State of N.H., 164 N.H. 778, 792-93 (2013).

We conclude that the communications do not create an issue of material 

fact as to whether the defendant intended to induce the plaintiffs to believe 

that it would resolve the claims through negotiations. Again, the February 9

communication merely requested documentation regarding the collapse, while 

the March 19 communication noted that the defendant sought to resolve the 

claim, “if possible.” Neither communication contains a representation, explicit 

or implicit, about resolving the dispute solely through negotiation. At best, 

these communications demonstrate that the defendant remained willing to 

consider the plaintiffs’ claim.

Finally, the plaintiffs argue that these same communications create a 

dispute of material fact as to whether the defendant waived the time-limitation 

provision as a defense. To establish waiver, the plaintiff must point to explicit 

language indicating the defendant’s intent to forgo a known right, or conduct 

from which it may be inferred that the defendant abandoned this right. Forbes 
8

Farm P’ship v. Farm Family Mut. Ins. Co., 146 N.H. 200, 204 (2001). We 

conclude that the communications do not create an issue of material fact as to 

whether they demonstrate the defendant’s intent to abandon its right to assert 

the time-limitation as a defense. See id. Merely requesting more information 

or expressing a desire to resolve a claim is insufficient to establish a waiver of a 

time-limitation provision. Id.

IV. Conclusion

For the reasons stated above, we affirm the trial court’s grant of 

summary judgment to the defendant on the plaintiffs’ breach of contract and 

declaratory judgment claims.

Affirmed.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.