UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joseph Griffiths

v. Civil No. 08-cv-507-JL

Opinion No. 2010 DNH 069

Certain Underwriters at

Lloyds, London and Croton

Stokes Wilson Limited

O R D E R

This case presents the not-uncommon scenario of an insurer’s

denying coverage for a covered loss based on alleged

misrepresentation in the insured’s application for the policy.

Joseph Griffiths, proceeding pro se, has sued certain

underwriters at Lloyds, London, and Croton Stokes Wilson Limited,

alleging that they breached the homeowners insurance policy they

issued him. Lloyds refused to make payment for a fire loss that

Griffiths suffered at the insured premises, a two-family home he

owns in Groveton, New Hampshire, claiming he had engaged in

“concealment or fraud” as prohibited by the policy. Lloyds 1

The policy was issued by Lloyds, not by Croton Stokes 1

Wilson Limited, whom Lloyds has identified as its broker. Thus,

Griffiths has no claim against Croton Stokes Wilson Limited for

breaching the policy but, even if he did, that claim would meet

the same fate as his claim against Lloyds for breaching the

policy. And insofar as Griffiths suggests a claim other than

breach of contract against either defendant, that claim has been

waived because it was not identified by Judge Muirhead in his

report and recommendation construing the complaint, to which

Griffiths did not object. See Santiago v. Canon U.S.A., Inc.,

138 F.3d 1, 4 (1st Cir. 1998).

Case 1:08-cv-00507-JL Document 44 Filed 04/13/10 Page 1 of 30
asserts that, when Griffiths applied for the policy, he made a

number of false statements--including that he had not been

indicted for the crime of fraud in the past five years, when in

fact he was under indictment at that time for forging signatures

on the deeds to various other properties.

This court has jurisdiction over this action between

Griffiths, a citizen of Maine, and Lloyds and Croton Stokes

Wilson, both English subjects, under 28 U.S.C. § 1332(a)(2)

(diversity). The defendants have moved for summary judgment,

arguing that there is no factual dispute that Griffiths

intentionally made that and other materially false statements in

the application. After oral argument, the court grants the

motion. As explained infra, the record conclusively establishes

that: Griffiths was under indictment for “the crime of fraud,”

as that term appeared in the application, at the time he signed

it; he acted with the intent to deceive in stating to the

contrary; and that statement was material because Lloyds would

not have issued the policy had it known about the indictments.

I. Applicable legal standards

A. The summary judgment rule

Summary judgment is appropriate where the “pleadings, the

discovery and disclosure materials on file, and any affidavits

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show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law.” 

Fed. R. Civ. P. 56(c)(2). Under this rule, a genuine issue of

fact exists only if a reasonable finder of fact could resolve it

in favor of either side. See, e.g., Lockridge v. Univ. of Me. 2

Sys., ___ F.3d ___, 2010 WL 797149, at *3 n.3 (1st Cir. Mar. 10,

2010). In deciding a motion for summary judgment, the “court

must scrutinize the record in the light most flattering to the

party opposing the motion, indulging all reasonable inferences in

that party’s favor.” Mulvihill v. Top-Flite Golf Co., 335 F.3d

15, 19 (1st Cir. 2003).

A party raising fraud as a defense to contract claim--like

the defendants here--bears the burden of proving the fraud. See 

Van Der Stok v. Van Voorhees, 151 N.H. 679, 681-82 (2005); 

6 Couch on Insurance § 82:5 (Lee R. Russ et al., eds., 3d ed.

1997) (observing that the insurer has the burden of proving the

As the Supreme Court has explained, Rule 56 therefore 2

“authorizes summary judgment only where the moving party is

entitled to judgment as a matter of law, where it is quite clear

what the truth is, and where no genuine issue remains for trial

for the purpose of the rule is not to cut litigants off from

their right of trial by jury if they really have issues to try.” 

Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467 (1962)

(quotation marks, ellipses, and bracketing omitted). In other

words, when there are no factual issues in genuine dispute, there

is nothing for the jury to decide and the court must simply enter

judgment for one side or the other as a matter of law. 

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insured’s misrepresentation as a defense to coverage). Where

“the party moving for summary judgment bears the burden of proof

on an issue, he cannot prevail unless the evidence that he

provides on that issue is conclusive.” EEOC v. Union

Independiente de la Autoridad de Acueductos y Alcantarillados de

P.R., 279 F.3d 49, 55 (1st Cir. 2002) (internal quotation marks

omitted). Under New Hampshire law, fraud must be established by

clear and convincing evidence. See Brochu v. Ortho Pharm. Corp.,

642 F.2d 652, 662 (1st Cir. 1981); Hair Excitement, Inc. v.

L’Oreal U.S.A., Inc., 158 N.H. 363, 369 (2009).

B. The summary judgment record

Under Rule 56(c), “the discovery and disclosure materials on

file” include any transcripts of the depositions taken in the

action and properly submitted by the parties. See, e.g.,

Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). But

Griffiths objects to the use of the excerpts from his deposition

transcript submitted with the motion for summary judgment here

because he “never was given the opportunity to review” them until

they were served upon him with the motion itself and they contain

“several inaccuracies.” He adds that he did not see a full copy

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of his deposition transcript until after the motion had been

fully briefed, when he received one from the reporting service.3

“On request by the deponent or any party before the

deposition is completed, the deponent must be allowed 30 days

after being notified by the officer that the transcript or

recording is available in which (A) to review the transcript or

recording; and (B) if there are changes in form or substance, to

sign a statement listing the changes and the reasons for making

them.” Fed. R. Civ. P. 30(e)(1). As this rule indicates, a

timely request to review the transcript serves as “an absolute

prerequisite to amending or correcting a deposition.” Rios v.

Bigler, 67 F.3d 1543, 1552 (10th Cir. 1995); see also Fed. R.

Civ. P. 30(e) advisory committee’s note (1993).

The defendants maintain that, while they do not doubt that

Griffiths has only just recently received a copy of his

Griffiths also suggests that he did not receive adequate 3

notice of his deposition beforehand. But he waived any

deficiency in the notice by attending his deposition without

objection. See Fed. R. Civ. P. 32(d)(1); Brown Badgett, Inc. v.

Jennings, 842 F.2d 899, 902 (6th Cir. 1988). And Griffiths

complains that he was “heavily medicated” during his deposition,

but, when asked about that at the deposition itself, said, “I am

on medication, but I think that I can answer the questions,”

which he proceeded to do at length and without any apparent

difficulty. Nor has Griffiths identified any particular answers

from the deposition that were mistaken or confused due to his

medicated state. So the deposition transcript cannot be

suppressed on that basis. See Herzog v. Delta Air Lines, Inc.,

No. 91-0083, 1992 WL 142581, at *1 (E.D. La. June 10, 1992).

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deposition transcript, he failed to request one during the 4

deposition itself, thus waiving his right to review and revise it

under Rule 30(e)(1). But the copy of the deposition on file with

the court states, among other stipulations, “It is further agreed

that if the deposition is not signed within thirty (30) days

after submission to counsel, the signature of the deponent is

waived.” This stipulation assumes that the transcript would in

fact be submitted to Griffiths (who was proceeding without

counsel), who would then have 30 days to review and sign it. The

stipulation, then, is tantamount to a request that Griffiths

receive a copy of the transcript under the rule: it is hard to

understand why Griffiths, or any deponent, would agree to take

only 30 days to review a transcript that he was not even going to

receive in the first place. Cf. Agrizap, Inc. v. Woodstream

Corp., 232 F.R.D. 491, 493-94 (E.D. Pa. 2006) (suggesting that a

The record does not suggest that this omission was 4

intentional and, indeed, leaves open the possibility that the

reporter did previously contact Griffiths to tell him that his

deposition transcript was available in accordance with Rule

30(e)(1). But because the excerpts of the transcript filed by

the defendants do not contain the certification required by Rule

30(e)(2)--which requires the reporter to note “whether a review

was requested and, if so, [to] attach any changes the deponent

makes during the 30-day period”--the court must take Griffiths at

his word that he did not know of the transcript until the summary

judgment motion was filed.

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stipulation that “the witness will read and sign” amounts to a

request to review the transcript under Rule 30(e)(1)).

Accordingly, the materials before the court indicate that

Griffiths properly requested a copy of his deposition transcript

to review and sign, but did not receive one until after the

motion for summary judgment had been fully briefed. While “[a]n

objection to how the officer transcribed the testimony 

. . . is waived unless a motion to suppress is made promptly

after the error or irregularity becomes known or, with reasonable

diligence, could have been known,” Fed. R. Civ. P. 32(d)(4),

Griffiths objected to the use of his deposition as inaccurately

transcribed within 30 days of having seen any part of it for the

first time, and immediately upon having seen it in its entirety

for the first time. These objections were prompt in light of 5

when the claimed inaccuracies in the transcript became known to

Though Griffiths did not make any filing styled as a motion 5

to suppress, he did specifically object to the use of the

transcript based on his lack of a prior opportunity to review it

in both his objection to the summary judgment motion and a

subsequent “motion to compel.” Under the circumstances, these

filings were sufficient to invoke Rule 32(d)(4). See Dutil v.

Murphy, 550 F.3d 154, 158 (1st Cir. 2008) (noting the practice to

“hold pro se pleadings to less demanding standards than those

drafted by lawyers”), cert. denied, 129 S. Ct. 2064 (2009); cf.

Perez v. Volvo Car Corp., 247 F.3d 303, 314-15 (1st Cir. 2001)

(holding that an objection to summary judgment evidence need not

take any particular form so long as it is made “seasonably,

strenuously, and specifically”). 

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Griffiths or, so far as the record reveals, could have been known

to him through reasonable diligence. See note 4, supra. The

court therefore suppresses the deposition transcript and will not

consider it in deciding the defendants’ summary judgment motion.6

See Fed. R. Civ. P. 32(d)(4); Bunch v. Bullard, 795 F.2d 384, 391

(5th Cir. 1986).

Griffiths similarly complains that the transcript of his

examination under oath filed with the motion is inaccurate in

that it fails to reflect “changes” submitted afterwards by his

attorney at the time. Though, unlike depositions, examinations 7

under oath are not subject to Rule 30, see Nat’l Athletic

Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 521 (7th

Cir. 2008), the court believes that the same concerns that called

for suppression of the transcript of Griffiths’s deposition also

call for the suppression of his examination under oath. In light

Because Griffiths has not identified any particular 6

inaccuracies in the deposition transcript, it is unclear how its

admission at this stage would prejudice him. While some courts

have denied motions to suppress depositions for alleged

transcription errors absent a showing of prejudice, see, e.g.,

Cohen’s Fashion Optical, Inc. v. Cohen, No. 94-297, 1996 WL

1493026, at *9 (W.D. Pa. Sept. 30, 1996), this court will

nevertheless suppress the transcript here. 

Griffiths, like most insureds, agreed in the policy to 7

submit to an examination under oath by the insurer in the event

of a claim, and Lloyds invoked that provision in subjecting him

to such an examination. See generally Krigsman v. Progressive N.

Ins. Co., 151 N.H. 643, 647-48 (2005).

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of these concerns--and without expressing any view as to their

legitimacy--the court will not consider the transcript of the

examination in ruling on the summary judgment motion. See United

Fire & Cas. Co. v. Historic Preservation Trust, 265 F.3d 722, 727

(8th Cir. 2001) (noting court’s discretion to exclude transcript

of examination under oath from evidence).

Griffiths also objects to the defendants’ submission of a

newspaper article reporting on suspicious fires at a property he

allegedly owned (not the property subject to the Lloyds policy,

but one of the properties to which he allegedly forged the deed). 

Griffiths is correct: newspaper articles are “hearsay,

inadmissible at trial to establish the truth of the reported

facts” and therefore inadmissible on summary judgment as well. 

Horta v. Sullivan, 4 F.3d 2, 8-9 (1st Cir. 1993). The court will

therefore disregard the newspaper article in ruling on the motion

for summary judgment.8

Griffiths objects, without explanation, that the affidavit 8

from an employee of Lloyd’s former underwriter which has also

been submitted by the defendants is “neither true nor accurate.” 

A party who disagrees with the substance of an affidavit

submitted in support of a summary judgment motion must buttress

that disagreement with something of evidentiary quality, usually

contrary portions of the affiant’s deposition testimony or a

counter-affidavit from another witness. See, e.g., Meuser v.

Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009). Because

Griffiths has not done so, his objection to the underwriter’s

affidavit is without merit.

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II. Background

On August 5, 2007, Griffiths signed and dated a two-page

application for homeowners insurance, which had been prepared by

an insurance agent, seeking coverage for a two-family house in

Groveton, New Hampshire. The bottom of the application, just

above where Griffiths signed it, states, “I have read the above

application and attachments. I declare that the information in

them is true, complete and correct to the best of my knowledge

and belief. This information is being offered to the company as

an inducement to issue the policy for which I am applying.”

 Among the information in the application were answers to a

series of questions provided by checking a box for “yes” or “no.” 

These questions included, “During the last five years, has any

applicant been indicted for or convicted of any degree of the

crime of fraud, bribery, arson or any other arson-related crime

in connection with this or any other property?” (capitalization,

parenthetical, and bracketed text omitted). The box next to this

question was checked “no.”

Lloyds claims that Griffiths knew this answer was false when

he provided it. On June 16, 2005--less than one year before

Griffiths signed the application--he was indicted by a grand jury

in Merrimack County Superior Court on six felony counts of

forgery, in violation of N.H. Rev. Stat. Ann. § 638:1. Griffiths

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had also been indicted by another Merrimack County grand jury on

two additional felony forgery charges on March 17, 2005. Each

indictment alleged that Griffiths, acting with a purpose to

defraud, had executed a deed in August 2004 knowing that it

purported to bear the authorized signature of the grantor, but

did not. As executed, each deed conveyed property from

Griffiths’s father to Griffiths, either alone or together with

one other person. After counsel was appointed to defend him on

the charges, Griffiths waived extradition from New York (where he

was living at the time) and arraignment, and entered pleas of not

guilty, securing release on bond. In doing so, Griffiths

affirmed that he lived at the same address where the indictments

had been sent, that he had “read the indictments and discussed []

them with his attorney,” that his attorney had advised him “as to

the nature of the crimes charged,” and that he understood “the

substance of the charges” (parentheses omitted).

Yet Griffiths argues that he “was never indicted on any

charge of fraud specifically, and did not know that [he] had been

indicted on any charge that may have been perceived as fraud at

the time [he] signed [the] application . . . . [he] had no

knowledge or belief [he] had been charged with fraud.” He also

points out that the forgery charges were all eventually dismissed

by writ of nolle prosequi. But that did not happen until

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December 13, 2007, more than four months after Griffiths had

signed the application.

Based on the representations in the application, Lloyds

issued the insurance policy in dispute here. An employee for the

company working as Lloyds’s underwriter at the time has submitted

an affidavit stating that, based on his experience, “absolutely

under no condition[] would coverage have been bound . . . had the

underwriter known that the applicant was previously indicted for

or convicted of any degree of fraud within the last five years,”

(emphases omitted), regardless of any other factor.9

Near midnight on December 19, 2007, a fire broke out at the

insured premises, causing heavy damage. Griffiths made a claim

for the fire loss under the policy, but Lloyds denied it, citing,

among other alleged misrepresentations in the application,

Griffiths’s statement that he had not been indicted for or

convicted of fraud within the preceding five years. Griffiths

This statement is in the underwriter’s supplemental 9

affidavit, submitted with the defendants’ reply memorandum. In

the underwriter’s original affidavit, submitted with the summary

judgment motion itself, he had stated in relevant part only that

Lloyds would not have bound coverage had the underwriter known

that Griffiths had been convicted of fraud within the past five

years. The underwriter explains in his supplemental affidavit

that this was an inadvertent omission. In light of this

explanation, any disparity between the underwriter’s original and

supplemental affidavits creates no issue of fact for summary

judgment purposes. See Hernandez-Loring v. Universidad

Metropolitana, 233 F.3d 49, 54 (1st Cir. 2000). 

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then commenced this action by filing a pro se complaint against

Lloyds and Croton Stokes, seeking leave to proceed in forma

pauperis. Judge Muirhead, conducting an initial review of

Griffith’s complaint, see L.R. 4.3(d)(1)(B), construed it to

allege a claim against the defendants for breaching the insurance

policy they issued him.

III. Analysis

In denying coverage to Griffiths, Lloyds relied on its

policy’s “Concealment or Fraud” clause, which provides that

We do not provide coverage to an ‘insured’ who, whether

before or after a loss, has:

1. Intentionally concealed or misrepresented any 

material fact or circumstance;

2. Engaged in fraudulent conduct; or

3. Made false statements;

relating to this insurance.

This provision is identical to that in New Hampshire’s “Standard

Fire Policy,” N.H. Rev. Stat. Ann. § 407:22, which is mandated by

state law, id. § 407:2. The defendants argue that they owe no

coverage to Griffiths because he intentionally misrepresented a

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material fact, namely that he had not been indicted for fraud

within the five years preceding the application.10

“Misrepresentation, according to the law of insurance, is

the statement of something, as fact, which is untrue, and which

the [in]sured states knowing it to be untrue, and with the intent

to deceive . . . such fact being . . . material to the risk.” 

Clark v. Union Mut. Fire Ins. Co., 40 N.H. 333, 338 (1860); see

also Am. Credit-Indemnity Co. of N.Y. v. E.R. Apt Shoe Co., 74

F.2d 345, 347-48 (1st Cir. 1934) (applying New Hampshire law);

Amoskeag Trust Co. v. Prudential Ins. Co. of Am., 88 N.H. 154,

The defendants also argue that Griffiths falsely stated 10

that (1) he had not suffered a loss at any location in the last

three years, when in fact there had been a fire during that time

at one of the properties conveyed to Griffiths by the allegedly

forged deeds, (2) he did not own any other residence, when in

fact he owned property in Kentucky, and (3) that the insured

premises were primarily heated by oil, when in fact the only

heating system there was inoperable. Because the defendants are

entitled to summary judgment on the basis of Griffith’s

misrepresentation as to his history of fraud charges alone, the

court need not reach these arguments.

Nevertheless, the court observes that the defendants have

not even submitted any direct evidence--let alone shown beyond

dispute that--(1) Griffiths understood that the fire at the other

property, which damaged only discarded tires, was a “loss” as

meant by the question on the application, (2) the Kentucky

property contained a residence, or (3) Griffiths knew that the

heating system at the insured premises was inoperable at the time

he signed the application (which was in the spring). Indeed,

Griffiths flatly denied each of those points at his deposition,

and the defendants have offered only weak inferential proof (if

any) to counter those denials. The defendants’ pursuit of

summary judgment on these bases anyway, then, is fundamentally

inconsistent with Rule 56. See Part I, supra.

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160-61 (1936); Domocaris v. Metro. Life Ins. Co., 81 N.H. 177,

181 (1923), overruled on other grounds, Boucouvalas v. John

Hancock Mut. Life Ins. Co., 90 N.H. 175 (1939). In moving for

summary judgment, the defendants argue that there is no factual

dispute that Griffiths’s statement that he had not been indicted

for fraud was (A) material, (B) untrue, and (C) made with the

intent to deceive. The court agrees.

A. Materiality

For an insurer to deny coverage based on the insured’s

misrepresentation, “[i]t is enough that the information requested

has bearing upon the soundness of the risk.” Amoskeag Trust, 88

N.H. at 162. While the materiality of an insured’s

misrepresentation often presents a question to be resolved by the

trier of fact, it can be decided by the court as a matter of law

in the absence of “evidence to warrant any other conclusion.” 

Id. at 163; see also Patten v. Merchants’ & Farmers’ Mut. Fire

Ins. Co., 38 N.H. 338 (1859). That is the case here.

The underwriter states, in fact, that Lloyds would not have

issued the policy had it known that Griffiths was indicted for

the crime of fraud within the five years preceding the

application, regardless of any other circumstances. Griffiths

does not dispute this evidence, or even argue that his alleged

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misrepresentation was not material. Accordingly, the evidence

conclusively establishes the materiality of Griffiths’s alleged

misrepresentation that he had not been indicted or convicted of

the crime of fraud within the past five years. See Jackson v.

Hartford Life & Annuity Ins. Co., 201 F. Supp. 2d 506, 511 (D.

Md. 2002) (ruling that misrepresentation that insured had not

been convicted of a felony, when in fact he was then on probation

for one, was material as a matter of law because insurer’s

“presumptive policy was to deny coverage to persons on

probation”); Simmons v. Conseco Life Ins. Co., 170 F. Supp. 2d

1215, 1224 (M.D. Fla. 2001) (ruling that the insurer clearly

established the materiality of the applicant’s misrepresentation

that he had not been convicted of a felony based on

“uncontroverted evidence from [the] underwriter” that coverage

would otherwise have been denied). 

B. The statement was untrue

 There is no doubt that, when he signed the application,

Griffiths had “been indicted for or convicted of any degree of

the crime of fraud . . . in connection with . . . any other

property” in the preceding five years. In fact, he was under

indictment on eight charges of forgery at that very moment for

allegedly executing deeds to various properties that falsely

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purported to bear his father’s signature. Griffiths nevertheless

argues that he was not under indictment for “any degree of the

crime of fraud” as that phrase appeared in the application,

either literally or to the best of his knowledge and belief, but

was under indictment for forgery. No reasonable finder of fact

could accept this argument.

In construing a question on an insurance application, courts

apply the same rules they apply in construing insurance policies

themselves. See, e.g., Gonzalez v. John Hancock Mut. Life Ins.

Co., 927 F.2d 659, 660 (1st Cir. 1991) (applying Puerto Rico

law); Hingham Mut. Fire Ins. Co. v. Mercurio, 878 N.E.2d 946,

949-50 (Mass. App. Ct. 2008); 6 Couch, supra, § 81:42; see also

Am. Credit-Indem., 74 F.2d at 348; Stratford Sch. Dist. v.

Employers Reins. Co., No. 94-488, slip op. at 15-17 (D.N.H. May

3, 1996), available at http://www.nhd.uscourts.gov/oo/ (search

for “Stratford”). In New Hampshire, courts “construe the

language of an insurance policy as would a reasonable person in

the position of the insured based on a more than casual reading

of the policy as a whole,” giving “the language its natural and

ordinary meaning” unless it is “reasonably susceptible to more

than one interpretation.” Miller v. Amica Mut. Ins. Co., 156

N.H. 117, 119-20 (2007); accord 6 Couch, supra, § 81:42

(explaining that the same principles govern the interpretation of

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insurance applications). Furthermore, unless the policy language

is ambiguous, its meaning presents a question of law to be

decided by the court. Miller, 156 N.H. at 119.

There can be no question that the natural and ordinary

meaning of the phrase “any degree of the crime of fraud,” as it

appeared on the insurance application, unambiguously includes the

crime of forgery, at least as it had been charged against

Griffiths. Again, the indictments against him alleged that he

had executed various deeds knowing that each falsely purported to

bear the authorized signature of the grantor--and, specifically,

that he had acted with a purpose to defraud in doing so--in

violation of N.H. Rev. Stat. Ann. § 638:1, I. That law, in

relevant part, provides that “[a] person is guilty of forgery if,

with a purpose to defraud anyone, or with knowledge that he is

facilitating a fraud to be perpetrated by anyone, he . . . makes,

completes, executes, issues, transfers, publishes or otherwise

utters any writing so that it purports to be the act of another.” 

N.H. Rev. Stat. Ann. § 638:1, I(b) (emphasis added). Thus, there

can be no felony forgery without the intent or knowledge that a

fraud be carried out. See also Grafton Bank v. Flanders, 4 N.H.

239 (1827).

Indeed, forgery is the first crime enumerated under Chapter

638 of the New Hampshire Revised Statutes Annotated--entitled

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“Fraud”--and under its first subchapter--entitled “Forgery and

Fraudulent Practices Generally.” This reflects the fact that

“‘forgeries are a species of fraud,’” Black’s Law Dictionary 677

(8th ed. 2004) (quoting 37 C.J.S. Forgery § 2, at 66 (1997)), and

that they serve as “a means of perpetrating widespread fraud,”

Model Penal Code § 224.1 n. 1, at 278 (1980). 

11

But the notion that forgery is a “crime of fraud” depends on

more than neat legal taxonomies. General purpose dictionaries

define “fraud” as “deceit” or “trickery,” specifically,

“intentional perversion of truth in order to induce another to

part with something of value or to surrender a legal right.” 

Merriam-Webster’s Collegiate Dictionary 498 (11th ed. 2007); see

also, e.g., Random House College Dictionary 526 (rev. ed. 1980);

American Heritage Dictionary of the English Language 523 (1973). 

These everyday definitions are in accord with those found in the

law, which conceives of fraud as “knowing misrepresentation of

the truth or concealment of a material fact to induce another to

act to his or her detriment,” Black’s Law Dictionary 685, or,

This article of the Model Penal Code, like the first 11

subpart of Chapter 638 of the New Hampshire criminal code, is

entitled “Forgery and Fraudulent Practices.” Notably, neither

the Model Penal Code nor the New Hampshire criminal code defines

any single offense known as “fraud” per se, but several different

offenses--including forgery--grouped together under the heading

“Fraud” or “Fraudulent Practices.”

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more broadly, “any artifice by which a person is deceived to his

disadvantage,” Wiley v. Wirbelauer, 174 A. 20, 23 (N.J. 1934).

These far-ranging definitions of “fraud” readily embrace

forgery, particularly in the sense that Griffiths was charged

with practicing it, i.e., by executing deeds that falsely

purported to transfer properties to himself. See Model Penal

Code § 224.1 cmt. 1, at 283 (noting the need to criminalize

forgery of “deeds and wills, which constitute links in the chain

of devolution of title and are usually entered of public record

as notice to all”). To a reasonable person in Griffiths’s

position, then, the meaning of the phrase “crime of fraud” on the

application would have clearly covered the forgery offenses

charged against him.

Griffiths also argues that, even if “crime of fraud” did

include the forgery charges as a matter of objective

interpretation of the insurance application, he harbored no

subjective “knowledge or belief [he] had been charged with

fraud.” Griffiths is right that he represented only that the

statements in his application were “true, complete and correct to

the best of [his] knowledge and belief.” But that qualifier does

not operate to make every statement in the application true so

long as Griffiths subjectively believed that it was.

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The problem with Griffiths’s argument, as a leading case

points out, is that it essentially reads the term “knowledge” out

of the application. Skinner v. Aetna Life & Cas., 804 F.2d 148,

151 (D.C. Cir. 1986). Yet that term is significant because,

while what an applicant believes may well depend solely on his

subjective understanding, “[w]hat an applicant knows can be

determined, and the conclusions that knowledge compels can be

assessed” objectively. Id. Thus, the use of the phrase

“knowledge and belief” demands

that knowledge not defy belief . . . . What the

applicant in fact believed to be true is the

determining factor in judging the truth or falsity of

his answer, but only so far as that belief is not

clearly contradicted by the factual knowledge on which

it is based. In such an event, a court may properly

find a statement false as a matter of law, however

sincerely it may be believed.

Id. Here, Griffiths’s claimed belief that he had not been

indicted for the crime of fraud is clearly contradicted by the

undisputed evidence of his knowledge to the contrary. 

Specifically, when Griffiths entered pleas of not guilty to

the forgery charges, he affirmed that he had read the indictments

and discussed them with his attorney, who advised him of the

nature of the charges, and that he understood their substance. 

The indictments which Griffiths had read and discussed, of

course, each explicitly charged that Griffiths acted with the

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requisite “purpose to defraud.” And this all happened less than

one year before Griffiths signed the insurance application.

Given these circumstances--which, again, are undisputed--a

rational factfinder would have to conclude that Griffiths knew at

the time of the application that he had been indicted for crimes

of fraud, even if he now says he did not subjectively believe

that. See Simmons, 170 F. Supp. 2d at 1224 (ruling as a matter 12

of law that an applicant knew he had been convicted of felonies

where, less than two years prior, he had entered pleas of nolo

contendre to several felony charges); cf. Jackson, 201 F. Supp.

2d at 511 (calling it “sensible” not to argue that an applicant

Indeed, the doctrine of judicial estoppel would appear to 12

prevent Griffiths from arguing here that he did not understand

the nature of the forgery charges when he told the Superior Court

that he did understand them in order to enter his pleas. Under

that doctrine,“[w]here a party assumes a certain position in a

legal proceeding, and succeeds in maintaining that position, it

may not thereafter, simply because its interests have changed,

assume a contrary position . . . . The purpose of this doctrine

is to protect the integrity of the judicial process by

prohibiting parties from deliberately changing positions

according to the exigencies of the moment.” Kelleher v. Marvin

Lumber & Cedar Co., 152 N.H. 813, 848 (2005) (quotation marks and

bracketing by the court omitted). While all the elements of

judicial estoppel appear to be present--Griffiths’s positions are

clearly inconsistent, he succeeded in persuading the Superior

Court to accept that he understood the charges, and he would

derive an unfair advantage here if allowed to argue to the

contrary, see id.--the court need not apply the doctrine here

because the defendants have not invoked it.

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“did not have knowledge of his own criminal . . . history,” which

included a forgery conviction for which he was on probation).

C. Intent to deceive

For largely the same reasons, the court also rules that any

rational finder of fact would have to conclude that Griffiths

made the false statement with the intent to deceive. As already

noted, see Part I, supra, “[f]raud must be proved by clear and

convincing evidence, but such proof may be founded upon

circumstantial evidence.” Caledonia, Inc. v. Trainor, 123 N.H.

116, 124 (1983). To prevail on a defense of fraud, then, it is

not necessary that “direct proof of intention to cause action by

the falsehood must come from the lips of the speaker . . . . 

[C]onclusive proof of the existence of such an intention [may be]

found in the nature and circumstances of the lie itself.” Hall

v. Merrimack Mut. Fire Ins. Co., 91 N.H. 6, 11 (1940). Here, the

nature and circumstances of Griffith’s false statement on the

insurance application conclusively show an intent to deceive.

First, as just discussed at length, the circumstances at the

time Griffiths signed the application eliminate any conceivable

possibility that he did not then understand he was under

indictment for the crime of fraud. While Griffiths makes much of

the fact that the charges were eventually dismissed, that did not

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happen until more than four months after he had submitted the

application. Moreover, the application asked whether Griffiths

had been indicted for the crime of fraud within the past five

years, not whether he had been convicted, so Griffiths would have

been answering falsely even if the indictments had been dismissed

by then. In light of this evidence, any reasonable factfinder 13

would have to conclude that Griffiths’s false statement was the

product of an intent to deceive, rather than an honest mistake

about the state of his criminal record. Cf. Crews v. Shelter

Gen. Ins. Co. 393 F. Supp. 2d 1170, 1176-77 (W.D. Okla. 2005)

(finding a genuine issue as to whether the applicant acted

deceptively in stating he had no felony conviction where he

testified to being told at the time of the conviction--which was

more than 20 years before the application--that it “would be

erased from his criminal record if he stayed out of trouble”

during his deferred sentence); Russell v. Royal Maccabees Life

Griffiths says that he has filed a petition with the 13

Superior Court to annul the records of the charges against him

under N.H. Rev. Stat. Ann. § 651:5, II, pointing out that the

result of that relief would be that he could not be required to

disclose the indictments “[i]n any application for employment,

license or other civil right or privilege,” id. § 651:5, X(c). 

Assuming, dubitante, that this provision applies to an

application for homeowners insurance, the fact remains that, at

the time Griffiths submitted the application, the charges had not

even been dismissed, let alone annulled (indeed, they still have

not). So § 651:5 had no bearing on Griffiths’s duty to disclose

the charges in the application.

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Ins. Co., 974 P.2d 443, 450 (Ariz. Ct. App. 1998) (finding a

genuine issue as to whether the applicant acted deceptively in

stating he had no felony conviction where the conviction had been

expunged and his lawyer had “advised him that he could respond to

inquiries into his criminal background, such as whether he had

ever been convicted of a felony, in the negative”).

Second, in the absence of any such innocent explanation,

there is simply no way to understand the false statement except

as an effort by Griffiths to obtain a homeowners policy despite

the pendency of forgery charges against him, that is, as

intentional deception. Indeed, the application requires an

explanation for any “yes” answer, and specifically states that

the information provided “is being offered to the company as an

inducement to issue the policy.” Based on the application

itself, then, Griffiths must have known (if he did not already)

that answering “yes” to the question about his criminal history

would have hurt his chances of getting the insurance, giving him

a powerful motive to falsely answer “no.”

As the New Hampshire Supreme Court has concluded from

similar circumstances, “[n]o applicant so fully informed in such

matters, in the absence of excusing circumstances here lacking,

can be considered as acting innocently if he fails frankly to

take the risk of rejection after disclosure of all the facts

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asked for.” Amoskeag Trust, 88 N.H. at 160. There, the court

rejected the argument that the plaintiff, who had tested

positively for the presence of certain substances in his urine

less than two years before applying for life insurance yet stated

to the contrary in his application, might have “innocently

believed that the knowledge of the facts was of no importance to

the [insurer] in determining whether or not it should write the

risk applied for.” Id. at 159. The court ruled that, even if

the applicant “consciously believed that the facts falsified did

not affect the risk, then it must be supposed also that by

concealing those facts he assumed to act secretly the part of the

. . . advisors of the [insurance] company. The innocence and

good faith of such action are not discernible.” Id. at 159-60. 

Thus, although a jury had found for the insured at trial, the New

Hampshire Supreme Court ruled that the Superior Court should have

entered a directed verdict for the insurer, because the

applicant’s “fraudulent intent conclusively appears upon the

evidence” as a matter of law. Id. at 160.

The undisputed facts of record here demand the same

conclusion. Again, at the time he submitted the application,

Griffiths knew both that he was under indictment for the crime of

fraud--because he had affirmed his understanding of the forgery

charges against him less than one year beforehand--and that

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disclosing the indictments would likely make procuring the

insurance more difficult--because the application stated that the

insurer would treat the information provided as an inducement to

issue any policy. As with the applicant in Amoskeag Trust, then,

Griffiths’s “fraudulent intent conclusively appears,”

necessitating judgment for the defendants as a matter of law.

 The court appreciates that “[i]n cases where, as here, the

state of mind of one of the parties is crucial to the outcome of

the case, resort to summary judgment is vested with more than the

usual difficulty.” Stepanischen v. Merchants Despatch Transp.

Corp., 722 F.2d 922, 928 (1st Cir. 1983). That difficulty is

compounded where, as is also the case here, the party moving for

summary judgment bears the burden of proving that state of mind,

and of doing so by clear and convincing evidence. Nevertheless,

“the presence of issues involving state of mind, intent, or

motivation does not automatically preclude summary judgment.” 

Id. at 929. Rather, just as with any other claim or defense,

summary judgment must be granted to the party asserting fraud

where “the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). This

rule “would be rendered sterile . . . if the mere incantation of

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intent or state of mind would operate as a talisman to defeat an

otherwise valid motion” for summary judgment. Meiri v. Dacon,

759 F.2d 989, 998 (2d Cir. 1985).

This court, in fact, recently granted summary judgment to a

party seeking to void an agreement on the basis of a fraudulent

misrepresentation, see Transfer My Timeshare, LLC v. Selway, 2009

DNH 153, 10-11, and other federal courts have granted summary

judgment to insurers defending their denials of coverage based on

the insured’s knowingly false statements in their applications,

see Whitford Land Transfer Co. v. Seneca Ins. Co., No. 08-71,

2008 WL 4792386, at *7-*8 (E.D. Pa. Oct. 31, 2008) (discussing

cases). These decisions illustrate that “[e]ven in cases where

elusive concepts such as motive or intent are at issue, summary

judgment may be appropriate if the nonmoving party rests merely

upon conclusory allegations, improbable inferences, and

unsupported speculation.” Meuser, 564 F.3d at 515 (quotation

marks omitted).

Here, as just discussed at length, the evidence before the

court shows that, at the time Griffiths submitted the

application, he knew both that he was under indictment for the

crime of fraud and that revealing that information would hurt his

chances of getting insurance, leaving no doubt that he acted with

the intent to deceive when he falsely answered that he had not

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been indicted for the crime of fraud within the past five years. 

Griffiths has not come forward with any evidence to the contrary. 

Instead, he offers only unsworn and unexplained statements in his

briefs to the effect that he did not know he had been charged

with fraud or that “he in no way thought he was lying.” Those

are precisely the kinds of “conclusory allegations” that cannot

defeat summary judgment, even in a case like this, where intent

is at issue. See, e.g., Meuser, 564 F.3d at 515; see also Gulf

Coast Bank & Trust Co. v. Reder, 355 F.3d 35, 39 (1st Cir. 2004)

(affirming summary judgment for party with the burden of proof

whose “evidentiary proffers covered the essential elements of its

case” and the non-moving party “produced no evidence to the

contrary,” only “bare allegations” from pleadings and briefs).

IV. Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment is GRANTED. Allowing the motion for summary

judgment moots all of the defendants’ motions in limine and their

motion to bifurcate, as well as Griffiths’s motions to extend the

deadline for his pretrial filings, to amend his complaint (which

seeks only to change the ad damnum clause to reflect the amount

of his alleged loss) and “to bring this matter and trial before

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the magistrate judge.” Griffiths’s motion to compel, which asks

only for a copy of the mailing receipt for his deposition notice

and “a listing of the Certain Underwriters and [] their capacity

and percentage of liability on the insurance policy” is also

denied as moot, because none of that information could change the

outcome of summary judgment, cf. Fed. R. Civ. P. 56(f).

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: April 13, 2010

cc: Joseph Griffiths, pro se

Ralph Suozzo, Esq.

Grace V.B. Garcia, Esq.

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