MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2013 ME 68

Docket: Cum-12-387

Argued: April 11, 2013

Decided: July 16, 2013

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, 

JJ.

CHALMERS HARDENBERGH

v. 

PATRONS OXFORD INSURANCE COMPANY

LEVY, J.

[¶1] Patrons Oxford Insurance Company appeals from a summary judgment 

of the Superior Court (Cumberland County, Wheeler, J.) declaring that Patrons 

Oxford has a duty to defend Chalmers Hardenbergh, pursuant to his homeowners 

insurance policy, against a third-party suit. Patrons Oxford contends that it has no

duty to defend Hardenbergh because the third-party suit is based entirely on 

activity falling within the policy’s exclusion for the insured’s “business pursuits.” 

We agree, vacate the judgment, and remand the case to the Superior Court for 

entry of a summary judgment in favor of Patrons Oxford.

I. BACKGROUND

[¶2] The following undisputed facts appear in the summary judgment record

unless otherwise indicated. At all times relevant to this suit, Hardenbergh 
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maintained a homeowners insurance policy with Patrons Oxford.

1

 Pursuant to an 

endorsement to that policy, Patrons Oxford has a duty to defend Hardenbergh from 

claims for “personal injury,” including from claims for “injury arising out of . . . 

libel, slander or defamation of character.” Explicitly excluded from this coverage 

are claims for “injury arising out of the business pursuits of any insured.”

[¶3] In September 2011, Pan Am Systems, Inc. and two other named 

plaintiffs (collectively, Pan Am) filed a complaint in the United States District 

Court against Hardenbergh; C.M. Hardenbergh, P.A., a Maine corporation; and

Atlantic Northeast Rails & Ports, a publication owned by the corporation. 

Paragraph 12 of the Pan Am complaint alleges that Hardenbergh and/or the other 

defendants “published, without privilege, as fact untrue information regarding 

[Pan Am] in Atlantic Northeast Rails & Ports Newsletters and E-Bulletins, as well 

as on the Atlantic Northeast Rails & Ports website; such publications contained 

false and defamatory statements . . . including, but not limited to,” certain 

specifically identified statements made in those publications. 

[¶4] Paragraph 14 alleges that Hardenbergh and/or the other defendants

“published false and defamatory statements about [Pan Am] including, but not 

limited to, those described in paragraph 12.” Paragraph 15 states, “[t]he false and 

 1

 Patrons Oxford issued a one-year homeowners insurance policy to Hardenbergh in November 2006. 

Although only the 2006 policy appears in the summary judgment record, the parties do not dispute that 

the operative language of the 2006 policy is identical to the operative language of the policy in effect at 

the times relevant to this case.
3

defamatory statements were published without privilege by Defendants to viewers 

of the Atlantic Northeast Rails & Ports’ Newsletters, E-Bulletins and website.” 

[¶5] The Pan Am complaint also alleges that “Atlantic Northeast Rails 

& Ports is a widely read weekly trade newsletter and e-bulletin covering the 

Northeastern United States, Eastern Quebec and the Canadian Maritimes regions, 

with a place of business in Yarmouth, Maine.” Further, “Atlantic Northeast Rails 

& Ports maintains a website that contains back issues of its newsletters, maps and a 

database about shippers, ports, railroads and intermodal facilities.” Paragraph 7

alleges, “Hardenbergh is the editor, publisher, owner and principal of Atlantic 

Northeast Rails & Ports.”

[¶6] In response to the Pan Am complaint, Hardenbergh tendered defense of 

the suit to Patrons Oxford. Patrons Oxford declined to defend Hardenbergh. 

[¶7] In January 2012, Hardenbergh filed in the Superior Court a complaint 

seeking a declaratory judgment that Patrons Oxford has a duty to defend him in the 

pending action by Pan Am. Hardenbergh also sought to recover money damages 

for costs he had incurred to defend himself in that action. Patrons Oxford moved 

to dismiss Hardenbergh’s complaint pursuant to M.R. Civ. P. 12(b)(6). 

Hardenbergh opposed that motion and moved for summary judgment. Patrons 

Oxford filed a cross-motion for summary judgment. 
4

[¶8] In May, while this matter was pending in the Superior Court, the 

United States District Court dismissed, with leave to amend, the Pan Am complaint

against Hardenbergh. In June, Pan Am filed an amended complaint, which also 

names Hardenbergh as a defendant. 

[¶9] In July, after a hearing on the parties’ motions, the Superior Court

granted Hardenbergh’s motion for summary judgment, and denied Patrons 

Oxford’s motions to dismiss and for summary judgment. The court concluded that 

Patrons Oxford had a duty to defend Hardenbergh against the original Pan Am 

complaint based on the complaint’s “including, but not limited to” language, which 

the court determined could include statements Hardenbergh made in his individual 

capacity and outside of the policy’s “business pursuits” exclusion. The court did 

not address whether Patrons Oxford has a duty to defend against the amended Pan 

Am complaint.

II. DISCUSSION 

[¶10] Patrons Oxford appeals, contending that the trial court should have 

granted summary judgment in its favor because it has no duty to defend 

Hardenbergh against the Pan Am lawsuit. Before addressing Patrons Oxford’s 

arguments, we consider, sua sponte, whether the United States District Court’s 

dismissal of the Pan Am complaint, and Pan Am’s filing of an amended complaint, 

renders this appeal moot. 
5

A. Mootness

[¶11] An appeal is moot “when there is no real and substantial controversy, 

admitting of specific relief through a judgment of conclusive character.” Doe I v. 

Williams, 2013 ME 24, ¶ 14, 61 A.3d 718 (quotation marks omitted). Here, the 

duty to defend against the original Pan Am complaint arose, if at all, upon its

filing. See Horace Mann Ins. Co. v. Me. Teachers Ass’n, 449 A.2d 358, 360 

(Me. 1982). Regardless of whether Patrons Oxford has a duty to defend against

the amended complaint, an issue that the trial court did not address and thus is not 

properly before us, Hardenbergh alleges in this action that he has incurred costs in 

defending against the original complaint, and he seeks damages. Thus, Patrons 

Oxford’s appeal retains its “controversial vitality,” and is therefore not moot.

See Doe I, 2013 ME 24, ¶¶ 14, 18, 61 A.3d 718; see also Smith & Nephew Inc. v. 

Fed. Ins. Co., 113 F. App’x 99, 102, 105 (6th Cir. 2004) (applying Tennessee law 

and federal procedural rules to hold that the filing of an amended complaint does 

not render moot the issue of whether a duty existed to defend against the original 

complaint). 

B. Duty to Defend

[¶12] Patrons Oxford argues that the trial court should have concluded that 

Patrons Oxford has no duty to defend against the original Pan Am complaint 

because the allegations of the complaint fall within the policy’s “business pursuits” 
6

exclusion. Our review of whether the trial court erred in granting summary 

judgment in favor of Hardenbergh is de novo.

2

 See Mitchell v. Allstate Ins. Co., 

2011 ME 133, ¶ 8, 36 A.3d 876. 

[¶13] Whether Patrons Oxford has a duty to defend depends on whether the

complaint “contains any allegations that, if proved, could fall within the coverage 

afforded by the policy.” Cox v. Commonwealth Land Title Ins. Co., 2013 ME 8, 

¶ 9, 59 A.3d 1280. An insurer’s duty to defend arises exclusively from the 

allegations in the complaint and the language of the policy. See id. Thus, “[a]n 

insurer may properly refuse to defend a policyholder if the allegations of the 

complaint fall entirely within a policy exclusion.” Mitchell, 2011 ME 133, ¶ 13, 

36 A.3d 876. 

[¶14] We begin by examining the language of the policy to determine the 

scope of coverage, and then turn to the language of the original Pan Am complaint

to determine whether it falls within the scope of the policy’s coverage. In 

construing the language of an insurance policy, we interpret unambiguous 

language in accordance with its plain meaning. See Cox, 2013 ME 8, ¶ 8, 59 A.3d 

 2 The trial court considered the parties’ competing motions for summary judgment, as well as Patrons 

Oxford’s motion to dismiss the complaint pursuant to M.R. Civ. P. 12(b)(6). We review the court’s grant 

of Hardenbergh’s motion for summary judgment, and its denial of Patrons Oxford’s cross-motion for 

summary judgment, and do not directly review the court’s denial of Patrons Oxford’s motion to dismiss 

the complaint. See M.R. Civ. P. 12(b) (providing that “[i]f, on a [Rule 12(b)(6) motion], matters outside 

the pleading are presented to and not excluded by the court, the motion shall be treated as one for 

summary judgment and disposed of as provided in Rule 56”).
7

1280. We strictly construe policy exclusions in favor of coverage. See Mitchell, 

2011 ME 133, ¶ 11, 36 A.3d 876.

[¶15] Pursuant to the endorsement to the policy, Patrons Oxford has a duty 

to defend Hardenbergh against claims for damages for “injury arising out of . . . 

libel, slander or defamation of character.” The endorsement, however, explicitly 

excludes from coverage “injury arising out of the business pursuits of any insured.” 

The policy does not define the term “business pursuits,” but defines “business” to 

“include[] trade, profession or occupation.” Because the term “business pursuits”

pertains to an exclusion from coverage, we strictly construe that term against 

Patrons Oxford, interpreting it to mean pursuit of one’s “trade, profession or 

occupation.” See id. Thus, the policy requires Patrons Oxford to defend

Hardenbergh against claims of injury arising out of “libel, slander or defamation of 

character,” unless the injury arose out of Hardenbergh’s pursuit of his “trade, 

profession or occupation.”

[¶16] We now turn to the original Pan Am complaint to determine whether 

it “contains any allegations that, if proved, could fall within the coverage afforded 

by the policy.” See Cox, 2013 ME 8, ¶ 9, 59 A.3d 1280. Because the complaint 

includes claims for defamation, Patrons Oxford properly concedes that it has a duty 

to defend Hardenbergh unless the allegations of the complaint fall entirely within 

the “business pursuits” exclusion. To make this determination, we consider the 
8

allegations in the complaint regarding the publications in which the alleged 

defamatory statements appeared, and Hardenbergh’s relationship to those 

publications. 

[¶17] According to the complaint, all of the alleged false or defamatory 

statements appeared in Atlantic Northeast Rails & Ports publications. Although 

paragraph 12 of the complaint alleges defamation arising from statements 

“including, but not limited to,” statements specifically described in the complaint, 

it also unequivocally alleges that all of the actionable statements appeared in 

Atlantic Northeast Rails & Ports publications. Similarly, although paragraph 14

alleges that Hardenbergh and/or other defendants “published false and defamatory 

statements about [Pan Am] including, but not limited to, those described in 

paragraph 12,” paragraph 15 alleges that “[t]he false and defamatory statements 

were published without privilege by Defendants to viewers of the Atlantic 

Northeast Rails & Ports’ Newsletters, E-Bulletins and website.” Read in its 

entirety, the complaint alleges defamation arising only out of statements appearing 

in Atlantic Northeast Rails & Ports publications. 

[¶18] We therefore turn to the question of whether Hardenbergh’s activity 

with regard to Atlantic Northeast Rails & Ports falls within the definition of a 

“business pursuit.” The complaint describes Hardenbergh as the “editor, publisher, 

owner and principal of Atlantic Northeast Rails & Ports,” which is “a widely read 
9

weekly trade newsletter and e-bulletin” that has “a place of business in Yarmouth, 

Maine.” As the policy states, “‘[b]usiness’ includes trade.” In short, all of the 

alleged defamatory statements appeared in a trade publication, which has a place of 

business and for which Hardenbergh is the “editor, publisher, owner and 

principal.” 

[¶19] The “including, but not limited to” language of paragraphs 12 and 14

of the complaint does not support the opposite conclusion. Although that language

is indefinite as to the specific statements supporting the defamation claim, the 

complaint is definite that the statements Hardenbergh allegedly made all appeared 

in pursuit of a trade—the publishing of an electronic and print trade publication for 

which he serves as the “editor, publisher, owner and principal.” Statements 

published in a trade publication by that publication’s “editor, publisher, owner and 

principle” arise out of that person’s “business pursuits.”

[¶20] Because the allegations in the original Pan Am complaint fall entirely 

within the “business pursuits” exclusion of the policy, Patrons Oxford has no duty 

to defend Hardenbergh against that complaint. See id. Accordingly, the trial court 

erred in granting summary judgment for Hardenbergh, and should have granted 
10

Patrons Oxford’s motion for summary judgment.3 See Mitchell, 2011 ME 133, ¶ 8, 

36 A.3d 876.

The entry is:

Judgment vacated. Remanded for entry of a 

summary judgment in favor of Patrons Oxford

declaring that Patrons Oxford had no duty to 

defend Hardenbergh against the original Pan Am 

complaint.

On the briefs:

James M. Bowie, Esq., and Hillary J. Bouchard, Esq., Thompson & Bowie, 

LLP, Portland, for appellant Patrons Oxford Insurance Company

Jeffrey T. Edwards, Esq., and Jonathan G. Mermin, Esq., Preti Flaherty 

Beliveau & Pachios, LLP, Portland, for appellee Chalmers Hardenbergh

At oral argument:

James M. Bowie, Esq., for appellant Patrons Oxford Insurance Company

Jeffrey T. Edwards, Esq., for appellee Chalmers Hardenbergh

Cumberland County Superior Court docket number CV-2012-00034

FOR CLERK REFERENCE ONLY 

 3

 The parties do not contest the Superior Court’s conclusion that, insofar as Hardenbergh’s complaint 

for declaratory relief and the parties’ motions for summary judgment requested a determination of 

whether Patrons Oxford has a duty to indemnify Hardenbergh in the underlying action, such a claim is 

premature. Accordingly, we do not address this issue. Further, we do not consider and express no 

opinion regarding Patrons Oxford’s duty, if any, to defend against the amended Pan Am complaint, a 

question not addressed by the Superior Court and therefore not properly before us.