1In a separate order the court will consider cross motions

for summary judgment between USF&G and Windham.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Windham Environmental

Corporation, et al.

v. Civil No. 06-cv-367-JM

United States Fidelity

and Guaranty Company

O R D E R

Mactec Engineering & Consulting, Inc. (“Mactec”) moves for

partial summary judgment seeking a determination that United

States Fidelity and Guaranty Company (“USF&G”) must defend

arbitration claims against it (Document no. 46). USF&G moves for

summary judgment as to any duty to defend and as to any duty to

indemnify (Document no. 43).1

Standard of Review

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

Case 1:06-cv-00367-JM Document 89 Filed 09/29/08 Page 1 of 11
2

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). A material fact is one “that might affect

the outcome of the suit.” Id. at 248.

In ruling on a motion for summary judgment, the court

construes the evidence in the light most favorable to the

nonmovant. See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st

Cir. 2001). The party moving for summary judgment “bears the

initial responsibility of . . . identifying those portions of

[the record] which it believes demonstrate the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). Once the moving party has met its burden,

the burden shifts to the nonmovant to “produce evidence on which

a reasonable finder of fact, under the appropriate proof burden,

could base a verdict for it; if that party cannot produce such

evidence, the motion must be granted.” Ayala-Gerena v. Bristol

Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996) (citing Celotex,

477 U.S. at 323; Anderson, 477 U.S. at 249). Neither conclusory

allegations, improbable inferences, nor unsupported speculation

Case 1:06-cv-00367-JM Document 89 Filed 09/29/08 Page 2 of 11
3

are sufficient to defeat summary judgment. Carroll v. Xerox

Corp., 294 F.3d 231, 236-37 (1st Cir. 2002).

When parties file cross-motions for summary judgment,

ordinarily the court must consider the motions separately to

determine whether summary judgment may be entered under the Rule

56 standard. Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt., 369 F.3d

584, 588 (1st Cir. 2004); Bienkowski v. Northeastern Univ., 285

F.3d 138, 140 (1st Cir. 2002). When, in a non-jury case, cross

motions for summary judgment are filed on stipulated or

materially undisputed facts, the case is deemed submitted and the

court determines any inferences to be drawn from those facts. 

See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 643-

44 (1st Cir. 2000).

In this case, the parties submitted a Joint Statement of

Agreed Facts (“J.A.”). That stipulation authenticates the

twenty-nine (29) documents filed under seal as true and correct

copies of those documents. In addition, in compliance with LR

7.2, USF&G provided a Statement of Material Facts (Document no.

43-1 pp. 3-9). Mactec’s objection to USF&G’s motion for summary

judgment (Document no. 50), and its own motion for summary

judgment (Document no. 46), provide no opposition to USF&G’s

Case 1:06-cv-00367-JM Document 89 Filed 09/29/08 Page 3 of 11
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Statement of Material Facts. Therefore, “[a]ll properly

supported facts set forth in ...[USF&G’s] factual statement shall

be deemed admitted.” LR 7.2 (G)(2). Finally, Mactec filed its own

“Additional Statement of Material Facts to Which There is No

Genuine Issue” (Document no. 50-2). USF&G, however, has disputed

all or parts of 29 of the 34 facts (Document no. 55).

Background

Mactec is an engineering firm which, through its

predecessor, entered into a contract with the Hitchiner parties

to design, engineer and install a ground water remediation system

at the Savage Well Site in Milford, New Hampshire. Mactec

subcontracted part of that work in 2002 to the predecessor of

Windham Environmental Corporation (“Windham”). Windham was to

analyze the chemical composition of the contaminated ground water

and develop, test and apply a sequestration agent to prevent iron

fouling of the system’s injection wells.

The subcontract between Mactec and Windham specifically

provided:

11.1 Without in any way limiting Subcontractor’s

liability hereunder, Subcontractor shall procure and keep in

effect the insurance listed below in Paragraph 11.2. As

soon as possible after the execution of this Agreement, but

in no event later than fifteen days thereafter,

Subcontractor shall furnish [Mactec] with Certificates of

Case 1:06-cv-00367-JM Document 89 Filed 09/29/08 Page 4 of 11
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Insurance attested to by a duly authorized representative of

the insurance carrier(s) evidencing that the insurance

required hereunder is in effect and that such insurance will

not be cancelled or materially changed without giving to

[Mactec] at least thirty (30) days prior written notice. 

Subcontractor shall ensure that [Mactec] and their

respective officers, agents, and employees are ‘additional

insureds’ on all such policies. Subcontractor shall provide

[Mactec] copies of certificates of insurance a minimum of

fifteen (15) days prior to each anniversary of the effective

date of the CD.

J.A. Ex.4, USF&G 0508 (emphasis added). Paragraph 11.2 provided

that the insurance must include a General Liability policy. Id.,

USF&G 0507.

The 2001-2002 USF&G general liability policy provided, in

relevant part:

If (a) you are required to add another person or

organization as an insured under the policy in a written

construction contract or agreement which is in effect during

the period of this policy; and (b) a certificate of

insurance has been issued listing that person as an

ADDITIONAL INSURED, then [the Policy] is amended to include

that person or organization as an insured (referred to below

as an ADDITIONAL INSURED).

See J.A. Ex. 3 [2001-02 Policy], USF&G 10126. Upon Windham’s

request, USF&G provided a Certificate of Insurance to Mactec with

respect to the 2001-2002 policies indicating that it had been

added as an Additional Insured on those policies.

Mactec has not produced a Certificate of Insurance for any

Case 1:06-cv-00367-JM Document 89 Filed 09/29/08 Page 5 of 11
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subsequent annual policy. It argues instead that Certificates

for subsequent years are unnecessary. Each subsequent policy,

however, contained the identical “Additional Insured” language

quoted above from the 2001-2002 policy. See J.A. 9, USF&G 10525.

On October 25, 2004, the remediation system was started up,

and then failed to operate properly for the contractuallyrequired thirty-day (30) period. Of particular significance,

Hitchiner, in its claim, alleged that the sequestering agent was

defective and insufficient, and that it crystallized and caused

significant iron fouling of both the injection wells and the

surrounding aquifer.

Discussion

Mactec has the burden of showing property damage caused by

an occurrence during a policy period. While it makes some

generalized arguments that the property damage could have

occurred in any or all policy period(s) from 2002 through 2004,

no fair reading of Hitchiner’s counter claim supports the

arguments. Assuming arguendo that there was in fact an

“occurrence” under the policy, it was the “catastrophic failure

Case 1:06-cv-00367-JM Document 89 Filed 09/29/08 Page 6 of 11
2 Because I resolve the case on other grounds, it is

unnecessary to determine whether plaintiff is entitled to a

partial summary judgment finding of an “occurrence.” 

7

of the system in November 2004.” J.A. 19, ¶23, USF&G 0459.2 It

is the 2003-2004 policy, then, that is at issue. As to that

policy, no Certificate of Insurance was issued to Mactec.

Mactec argues that it is an “Additional Insured” for each

subsequent policy, including the 2003-2004 policy, even though it

received no Certificate of Insurance for that policy. First, it

argues that it falls into a class of entities for which such

coverage was available. It is clear that it does fall into the

eligible class; however, the fact that it is the type of entity

which was eligible to become an “Additional Insured” does not

automatically make it an “Additional Insured.” Plaintiff does

not point to any language in any policy that provides for such

automatic coverage -- because there is no such language. 

Instead, plaintiff argues that Windham was insured by USF&G

continuously from 1995 through 2005 and that the policies were

extremely similar. The policies were automatically renewed in

some instances, but not in all instances. See J.A. Ex. 2 and 8. 

The language of the different policies was similar. This means,

of course, that each year the general liability policy had a

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8

provision that said that an “Additional Insured” is one for whom

“a certificate of insurance has been issued listing that person

or organization as an insured.. . .” That does not help

plaintiff’s argument. Instead, Windham’s repeated failure to

comply with the provision requiring Mactec to be named as an

Additional Insured on a Certificate of Insurance undermines

Mactec’s claim that they were intended to be covered by the

policy.

The plaintiff argues that the broker, Poole, did not

automatically reissue Certificates of Insurance when the policies

were reviewed. Poole did have the authority to issue such

certificates and did not notify USF&G when it did issue them. 

Plaintiff argues that new certificates were not required, but

cites no factual basis for that position. Plaintiff also argues

that the certificates served no underwriting purpose, and they do

not themselves provide insurance. Plaintiff’s argument may have

a degree of logic but it is not supported by any citations - nor

have I found any case law to support it. 

There is authority, however, for USF&G’s position. Under

New Hampshire law an insurance contract is to be construed like

any contract. See Hudson v. Farm Family Mut. Ins. Co., 142 N.H.

Case 1:06-cv-00367-JM Document 89 Filed 09/29/08 Page 8 of 11
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144, 146, 697 A.2d 501, 503 (1997). In construing a policy the

court

take(s) the plain and ordinary meaning 

of the policy’s words in context, and 

we construe the terms of the policy as

would a reasonable person in the position

of the insured based on more than a 

casual reading of the policy as a whole.

High Country Assoc. v. N.H. Ins. Co., 139 N.H. 39, 41, 648 A.2d

474, 476 (1994). Here there is no ambiguity and, in fact, no

argument about the policy language. The policy in each year from

2001 through 2004 clearly provides that “[i]f ... a certificate

of insurance has been issued listing that person as an ADDITIONAL

INSURED, then [the policy] is amended to include that person or

organization as an insured.” New Hampshire law requires that

“[a]ll parts of an insurance agreement are to be given effect

whenever reasonably possible.” Commercial Union Assur. v.

Gallan, 118 N.H. 744, 747, 394 A.2d 839, 842 (1978). The court

cannot ignore the clear language in this policy. See id.

Furthermore, in the absence of an ambiguity, the parol

evidence rule prohibits resort to plaintiff’s extrinsic evidence. 

Even if I were to consider it, plaintiff could not prevail. 

Poole was not an agent of USF&G, but rather a broker placing

insurance for its client, Windham. J.A. 29, pp. 19, 37. It was

Case 1:06-cv-00367-JM Document 89 Filed 09/29/08 Page 9 of 11
3 Since Mactec is not an additional insured, the issues

relating to the policy verified by the parties need not be

addressed.

10

not authorized to bind USF&G. Therefore, whatever Poole’s

practice was in issuing certificates does not overcome the clear

policy term, nor does its practice estop USF&G from enforcing the

clear language of the policy. Mactec itself recognized that its

subcontractor was required to “provide [it] copies of

certificates of insurance a minimum of fifteen (15) days prior to

each anniversary of the effective date of the CD.” Mactec failed

to enforce that provision and Windham breached its promise. The

failure is between those entities. Clearly Mactec either knew,

or should have known, it needed a new Certificate of Insurance

for each policy year.

The applicable policy required the issuance of a Certificate

of Insurance as a precondition to coverage. No certificate was

issued under the applicable policy, eliminating or precluding

Mactec’s claim for coverage.3

Conclusion

Mactec’s motion (Document no. 46) is denied. USF&G’s motion

(Document no. 43) is granted. The Clerk is directed to enter

judgment for USF&G.

Case 1:06-cv-00367-JM Document 89 Filed 09/29/08 Page 10 of 11
11

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: September 29, 2008

cc: Daniel P. Luker

 Steven A. Solomon

 John Wolkowski

 Jeffrey T. Edwards

 Roy T. Pierce

 Joshua E. Menard

 Russell F. Hilliard

 Christopher R. Blazejewski

 Eric B. Hermanson

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