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Mellin v. N. Sec. Ins. Co.

Supreme Court of New Hampshire

October 15, 2014, Argued; April 24, 2015, Opinion Issued

No. 2014-020


 [**801]  Conboy, J. The plaintiffs, Doug and Gayle Mellin, brought a declaratory judgment action asserting, in relevant part, that their homeowner's insurance policy with the defendant, Northern Security Insurance Company, Inc. (Northern), requires Northern to reimburse them for losses to their condominium caused by cat urine odor. The plaintiffs appeal an order of the Superior Court (Wageling, J.) granting summary judgment in favor of Northern. We vacate in part, reverse in part, and remand.

I. Background

The record on summary judgment supports the following facts or they are otherwise undisputed. The plaintiffs owned a condominium unit in Epping (unit). Their downstairs neighbor kept two cats in her condominium. The plaintiffs leased their unit to a tenant who was the first person to detect a cat [***2]  urine odor in the unit in 2009 or 2010. In November 2010, after their tenant moved out due to the odor, the plaintiffs moved into the unit and also noticed the odor. They surmised that it entered their unit from the downstairs condominium through an open plumbing chase servicing the kitchen. In December 2010, the plaintiffs filed a claim under their homeowner's insurance policy, which was denied.

 [*546] Epping's building/health inspector examined the unit and, on December 22, 2010, sent a letter to the plaintiffs stating that they “have a health problem existing” and the odor “is such that [they] need to move out of[] the apartment temporarily and have a company terminate the odor.” Remediation proved unsuccessful. The plaintiffs continued to reside in the unit until February 1, 2011. They claimed that, after that time, they “could [not] have tenants,” although they occasionally occupied the unit. Ultimately, they sold their condominium. They assert, however, that the sale price for the unit was significantly less than that for a comparable condominium in the area which was unaffected by cat urine odor.

Section I of the plaintiffs' homeowner's insurance policy, addressing property coverages, [***3]  contains two disputed coverage provisions. The first disputed provision, “Coverage A,” provides coverage, in relevant part, for “alterations, appliances, fixtures and improvements which are part of  [**802]  the building contained within the ‘residence premises’ ” and, through an endorsement, “insure[s] against risk of direct loss to property … if that loss is a physical loss to property” (Coverage A endorsement). (Emphasis added.) The Coverage A endorsement also contains what is commonly referred to as a “pollution exclusion clause,” which states, in part: “We do not insure, however, for loss … [c]aused by … [d]ischarge, dispersal, seepage, migration, release or escape of pollutants … .” The second disputed provision in Section I, “Coverage D,” provides coverage for “Loss Of Use” of the “residence premises,” including additional living expenses and lost rental income.

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167 N.H. 544 *; 115 A.3d 799 **; 2015 N.H. LEXIS 32 ***

Doug Mellin & a. v. Northern Security Insurance Company, Inc.

Prior History:  [***1]  Rockingham.


Coverage, physical loss, pollution exclusion, pollutant, odor, contaminant, terms, insured, ambiguous, cat, urine, quotation, trial court, endorsement, ammonia, environmental, dispersal, irritant, perils, summary judgment, courts, unambiguous, policy language, insured property, tangible, plaintiffs', alteration, chemical, losses, smell

Civil Procedure, Appeals, Summary Judgment Review, Standards of Review, Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, General Overview, Question of Law, Ordinary & Usual Meanings, Ambiguous Terms, Construction Against Insurers, Exclusions, Procedure, Evidence & Trial, Burdens of Proof, Entire Contract, Reasonable Expectations, Reviewability of Lower Court Decisions, Preservation for Review, Judicial Review