Of the Tenth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1008

NARRAGANSETT JEWELRY CO., INC., d/b/a C&J JEWELRY, CO., INC.

Plaintiff, Appellant,

v.

ST. PAUL FIRE AND MARINE INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

 Torruella, Baldock, and Howard, *

Circuit Judges.

James J. McGair, with whom Thomas C. Angelone and Hodosh,

Spinella & Angelone, P.C. were on brief, for appellant.

Paul S. Callaghan, with whom James A. Ruggieri and Higgins,

Cavanagh & Cooney, LLP were on brief, for appellee.

February 6, 2009
The Slane lawsuit was settled while the instant matter was pending 1

in the district court.

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HOWARD, Circuit Judge. This appeal arises out of an

insurance coverage dispute between appellant Narragansett Jewelry

Co. Inc., d/b/a C & J Jewelry Co. Inc. ("Narragansett") and its

general liability insurer, appellee St. Paul Fire and Marine

Insurance Co. ("St. Paul"). Narragansett sought defense and

indemnity from St. Paul in connection with a civil action filed

against it by Slane & Slane Designs, LLC ("Slane") in the Southern

District of New York ("the underlying action" or "the Slane

lawsuit"). Following St. Paul's denial of coverage, Narragansett

filed suit in Rhode Island federal district court for breach of the

insurance contract and for a declaratory judgment that St. Paul was

required to provide coverage. Narragansett sought to recover money

it expended in the Slane lawsuit, including attorneys fees and the

amount it paid in settlement. The district court granted St. 1

Paul's motion for summary judgment, from which Narragansett

appeals. Finding no error in the district court's analysis or

conclusion, we affirm.

I.

Under Rhode Island law -- which both parties agree

governs this case -- an insurer's duty to provide a defense to

litigation brought against its insured is determined by comparing

the allegations in the underlying complaint against the insured to
Slane followed its original complaint with an amended complaint. 2

We refer to the latter unless otherwise indicated.

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the language of the relevant insurance policy. This is referred to

as "the pleadings test." Progressive Cas. Ins. Co. v. Narragansett

Auto Sales, 764 A.2d 722, 724 (R.I. 2001). "'[I]f the pleadings

recite facts bringing the injury complained of within the coverage

of the insurance policy, the insurer must defend irrespective of

the insured's ultimate liability . . . .'" Id. (quoting Peerless

Ins. Co. v. Viegas, 667 A.2d 785, 787 (R.I. 1995)).

II.

We begin our analysis by figuratively "laying the . . .

complaint alongside the policy . . . ." Employers' Fire Ins. Co.

v. Beals, 240 A.2d 397, 402 (R.I. 1968). We start with the

complaint. Slane is a jewelry design company that contracted with 2

Narragansett in 1996. Pursuant to the parties' agreement,

Narragansett was to develop jewelry models and molds based on Slane

designs, and to produce jewelry ordered by Slane. Once Slane

designed a particular piece of jewelry, it was Narragansett's job

to produce a model to serve as a template from which the jewelry

could be mass produced. Upon Slane's approval of the model, a mold

would be created for use in the mass production process. 

The gist of Slane's complaint was that Narragansett

"failed and refused to develop models of consistent and usable

quality and which were free of defects." More specifically, Slane
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charged that Narragansett's models were not properly calibrated, or

were defective in other ways that prevented them from being used to

manufacture the final products. Slane also claimed that

Narragansett damaged and lost numerous models belonging to Slane.

Finally, Slane asserted that Narragansett either failed to deliver

the final product, or delivered goods long after the expected

delivery date.

Slane's original complaint, filed in May 2002, set forth

causes of action for breach of contract, breach of express and

implied warranties, negligence, negligent misrepresentation, and

breach of the covenant of good faith and fair dealing. After St.

Paul denied coverage, Slane filed an amended complaint in March

2003 adding a count entitled "Entrustment-Negligence," alleging

that Narragansett damaged jewelry models which Slane entrusted to

Narragansett for use in the production of jewelry. St. Paul again

denied coverage, and Narragansett's declaratory judgment action

followed.

In relevant part, the Comprehensive General Liability

policy St. Paul issued to Narragansett provides that St. Paul will

"pay amounts [Narragansett] is legally required to pay as damages

for covered . . . property damage that happens while this agreement

is in effect and is caused by an event." The policy defines

"property damage" as "physical damage to tangible property of

others, including all resulting loss of use of that property" or
Narragansett conceded during the proceedings below that only the 3

"Entrustment-Negligence" count in the amended complaint could be

construed to afford it coverage.

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"loss of use of tangible property of others that isn't physically

damaged." The St. Paul policy also contains several exclusions,

describing matters that are not covered by the policy. One of

these, the Control of Property exclusion, provides that the policy

does not "cover property damage to . . . [p]ersonal property that's

in the care, custody, or control of [Narragansett]."

III.

The district court granted St. Paul's motion for summary

judgment on the basis of the Control of Property exclusion,

concluding that the factual allegations in the "EntrustmentNegligence" count ineluctably describe a loss related to Slane's 3

property -- molds and models -- in Narragansett's "care, custody or

control." We review the district court's summary judgment ruling

de novo, construing the record evidence in the light most favorable

to Narragansett. Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 855

(1st Cir. 2008). "Summary judgment is appropriate 'where there is

no genuine issue as to any material fact . . . and the movant is

entitled to judgment as a matter of law.'" New Fed. Mortgage Corp.

v. Nat'l Union Fire Ins. Co., 543 F.3d 7, 11 (1st Cir.

2008)(quoting Fed. R. Civ. P. 56(c)).

In determining whether the allegations in a complaint are

sufficient to create a duty to defend, we apply general rules of
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contract construction and give words their "plain, ordinary

meaning." Allstate Ins. Co. v. Russo, 641 A.2d 1304, 1306-07 (R.I.

1994). Any doubts about the sufficiency of the allegations are

resolved in favor of the insured. Id.

St. Paul argues that the explicit language of the

complaint compels a conclusion that the Control of Property

exclusion applies to deny coverage. Specifically, St. Paul points

out that the "Entrustment-Negligence" claim alleges that "Slane &

Slane owned certain models which it entrusted to [Narragansett] for

use in the production of jewelry," and that Narragansett "caused

physical damage to such models . . . ." Narragansett responds by

hypothesizing that the alleged loss and/or damage possibly occurred

during the shipment process when placed in the hands of a thirdparty carrier, and thus not in Narragansett's care, custody or

control. We agree with the district court that Narragansett's

argument misses the mark.

Regardless of what might be "possible," there are no

allegations in the Slane lawsuit that support Narragansett's

hypothesis. Indeed, the exact opposite is true. The complaint

specifically and repeatedly alleges that Narragansett caused the

damage at issue. Narragansett relies on Shelby Ins. Co. v. Ne.

Structures, Inc., 767 A.2d 75 (R.I. 2001), a building-collapse case

in which the Rhode Island Supreme Court stated that the

"possibility" of coverage was sufficient to bring the complaint
Because we affirm on the basis of the Control of Property 4

Exclusion, we do not address the other exclusions discussed by both

sides.

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within the scope of the relevant policy. Shelby, however, is

readily distinguishable. There, while the underlying complaint

charged faulty workmanship, which would be excluded from coverage,

id. at 77, the defendant/insured's underlying answer directly

raised the substantive defense that the collapse was caused by an

"Act of God," such as high winds, which might be covered. Id.

Here, the pleadings in the underlying case contain no similar claim

that the alleged damage was caused by third party. Narragansett's

post-hoc speculation about third parties not referenced in the

underlying lawsuit cannot suffice to avoid the plain language of

both the complaint and the policy.4

The decision of the district court is Affirmed.