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                  THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________


Rockingham
No. 2013-400


                     AMICA MUTUAL INSURANCE COMPANY

                                          v.

                                BEVERLY P. MUTRIE

                             Argued: March 5, 2014
                       Opinion Issued: November 13, 2014

      Sulloway & Hollis, P.L.L.C., of Concord (Sarah S. Murdough on the brief
and orally), for the petitioner.


      Coughlin, Rainboth, Murphy & Lown, P.A., of Portsmouth, for the
respondent, filed no brief.


      Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth
(Christopher E. Grant on the brief and orally), for the intervenors.

       BASSETT, J. The intervenors, Scott Kukesh, Eric Kulberg, Jeremiah
Murphy, and Gregory Turner, appeal an order of the Superior Court (McHugh,
J.) granting summary judgment in favor of the petitioner, Amica Mutual
Insurance Company (Amica), in the declaratory judgment action that Amica
filed against the respondent, Beverly P. Mutrie. In its order, the trial court
concluded that the reckless and wanton conduct in which Mutrie was alleged
to have engaged – knowingly permitting her son to engage in criminal activity
on her property – did not constitute an “occurrence” as required for coverage
under the homeowner’s and umbrella insurance policies issued to Mutrie by
Amica (the Policies). We affirm.

      The following facts are drawn from the trial court’s order and the record,
or are otherwise undisputed. The intervenors are four police officers who
served on a drug task force. On April 12, 2012, the intervenors executed a
search warrant at a property in Greenland where Mutrie’s son lived. The
property is owned by a trust, of which Mutrie is the trustee. The warrant was
issued because there was probable cause that Mutrie’s son was engaged in
criminal activity. During the execution of the search warrant, Mutrie’s son
opened fire, wounding the intervenors. Mutrie’s son then turned the gun on
himself.

       The intervenors filed a civil suit against Mutrie in July 2012. They
alleged that Mutrie was responsible for their injuries because, “with the
knowledge, information, and belief” that her son was engaged in criminal
activity, she “did recklessly and wantonly allow . . . criminal activity and
conduct to take place at the subject property and otherwise directly and
indirectly and wantonly and recklessly supported and facilitated [her son’s]
criminal activity at the subject property.”

      Amica assigned counsel to defend Mutrie, subject to a reservation of
rights. In September 2012, Amica filed a petition for declaratory judgment,
requesting a ruling that Amica has no duty to defend and indemnify Mutrie
because the “reckless and wanton misconduct” alleged by the intervenors in
their writ did not constitute an “occurrence” under the Policies. Subsequently,
Amica moved for summary judgment. The trial court ruled in favor of Amica.
This appeal followed.

       On appeal, the intervenors argue that the trial court erred when it
concluded that the reckless and wanton acts alleged by the intervenors
constituted “inherently injurious” or “intentional” conduct on the part of Mutrie
and, therefore, the conduct did not constitute an “occurrence” under the
Policies. The intervenors also argue that the court erred when it failed to
consider all of the materials that had been submitted in support of their
opposition to Amica’s motion for summary judgment. Amica counters that the
court properly ruled that Amica owes no duty to defend or indemnify Mutrie
because her conduct – as alleged by the intervenors – does not constitute an
“occurrence.” On cross-appeal, Amica also asserts that the trial court should
have ruled that coverage is barred by the Policies’ “controlled substances
exclusion.”



                                       2
      “We review de novo the trial court’s application of the law to the facts in
its summary judgment ruling.” Progressive N. Ins. Co. v. Concord Gen. Mut.
Ins. Co., 151 N.H. 649, 652 (2005). “[W]e consider the affidavits and other
evidence, and all inferences properly drawn from them, in the light most
favorable to the non-moving party.” Lacasse v. Spaulding Youth Ctr., 154 N.H.
246, 248 (2006) (quotation omitted). “If our review of the evidence does not
reveal a genuine issue of material fact, and if the moving party is entitled to
judgment as a matter of law, we will affirm the trial court’s decision.” Id.
(quotation omitted).

       “In New Hampshire, an insurer’s obligation to defend its insured is
determined by whether the cause of action against the insured alleges
sufficient facts in the pleadings to bring it within the express terms of the
policy.” Progressive N. Ins. Co. v. Argonaut Ins. Co., 161 N.H. 778, 780 (2011)
(quotation omitted). Thus, our analysis begins with an examination of the
Policies’ language. Id. The interpretation of insurance policy language, like
any contract language, is ultimately an issue of law for this court to decide. Id.
We look to the plain and ordinary meaning of the policy’s words in context. Id.
at 781. Policy terms are construed objectively, and when the terms of a policy
are clear and unambiguous, we accord the language its natural and ordinary
meaning. Id.

       We first consider whether the trial court properly found that Amica owes
no duty to defend and that coverage is precluded because Mutrie’s alleged
conduct did not constitute an “occurrence” under the Policies. Pursuant to the
relevant provisions in the Policies, coverage and the insurer’s duty to defend
are triggered only by an “occurrence.” The Policies define an “[o]ccurrence” as
“an accident, including continuous or repeated exposure to substantially the
same general harmful conditions, which results, during the policy period, in:
a. Bodily injury; or b. Property damage.” The Policies do not define the term
“accident.” However, in construing the word “occurrence” in insurance policies
with similar language, we have defined “accident” to mean “an undesigned
contingency, a happening by chance, something out of the usual course of
things, unusual, fortuitous, not anticipated, and not naturally to be expected.”
Vermont Mut. Ins. Co. v. Malcolm, 128 N.H. 521, 523 (1986) (quotation and
ellipsis omitted). Unless the alleged injury is the result of an accident, there is
no “occurrence,” and the Policies do not provide coverage. See Jespersen v.
U.S. Fidelity & Guaranty Co., 131 N.H. 257, 260 (1988).

      We have developed two tests to determine whether an insured’s act was
an accidental cause of injury – one subjective, the other objective. EnergyNorth
Natural Gas v. Continental Ins. Co., 146 N.H. 156, 162 (2001). First, “an
insured’s act is not an accidental contributing cause of injury when the
insured actually intended to cause the injury that results.” Id. (quotation
omitted). Second, an insured’s intentional act cannot be accidental when it is
so inherently injurious that “it cannot be performed without a certainty that


                                         3
some injury will result.” Id. (quotation omitted). Inherently injurious conduct
need only be “certain to result in some injury, although not necessarily the
particular alleged injury.” Providence Mut. Fire Ins. Co. v. Scanlon, 138 N.H.
301, 306 (1994). The insured’s intent is irrelevant to the inherently injurious
test; rather, the analysis is objective and is “conducted from the standpoint of a
reasonable person in the position of the insured.” EnergyNorth Natural Gas,
146 N.H. at 162.

       In their writ, the intervenors allege that Mutrie, “with the knowledge,
information and belief” of her son’s involvement in “a criminal enterprise as
well as multiple different forms of criminal activity[,] . . . directly and indirectly
and wantonly and recklessly supported and facilitated [his] criminal activity.”
They further allege that Mutrie’s “reckless and wanton misconduct” was the
“direct and proximate cause” of their injuries.

        The intervenors’ writ does not describe the specific “criminal enterprise”
in which Mutrie’s son was allegedly engaged. However, looking beyond the writ
itself – as the intervenors urge us to do in this case – we observe that the
search warrant that the intervenors reference in their writ was issued based
upon probable cause that Mutrie’s son was committing the crime of
“Conspiracy to Possess Controlled Drugs with the Intent to Distribute.” Cf.
Happy House Amusement v. N. H. Ins. Co., 135 N.H. 719, 722 (1992) (in
looking beyond writ in determining insurer’s duty to defend, the court noted
that plaintiff filed an affidavit in support of its argument); U. S. Fidelity &
Guaranty Co., Inc. v. Johnson Shoes, Inc., 123 N.H. 148, 152 (1983) (affirming
trial court’s decision that insurer had duty to defend where trial court looked
“beyond the facts as alleged in the underlying writs”).

       Because the intervenors have not alleged that Mutrie intended to cause
their specific injuries, but rather that her reckless conduct contributed to their
harm, we analyze her conduct under the second test, and apply the inherently
injurious standard. See EnergyNorth Natural Gas, 146 N.H. at 162; see also
Sheehan v. Goriansky, 72 N.E. 2d 538, 542 (Mass. 1947) (finding that reckless
conduct differs from intentional conduct because reckless wrongdoer intends
only act, not harm which results from it). Thus, the dispositive inquiry here is
whether a reasonable person in Mutrie’s position would know that permitting
her son to engage in illegal drug activity on her property would result in some
injury, although not necessarily the injury that, in fact, occurred. See
EnergyNorth Natural Gas, 146 N.H. at 162; Scanlon, 138 N.H. at 306.

       Courts in other jurisdictions have recognized that the sale and
distribution of drugs is intrinsically dangerous and harmful. See, e.g., United
States v. Bullock, 632 F.3d 1004, 1016 (7th Cir. 2011) (observing that “[d]rug
crimes are associated with dangerous and violent behavior”); United States v.
Kenerson, 585 F.3d 389, 392 (7th Cir. 2009) (“[I]t is an unfortunate fact of life



                                          4
that trade in controlled substances is dangerous for all involved.”). As the
United States District Court for the District of Nevada has observed:

      The distribution of illegal narcotics[,] without more, causes serious
      harm to society. Drug dealing also creates additional real
      dangers -- through crimes committed by addicts seeking to
      support their habits, through plain human suffering, and because
      people engaged in the sale of illegal substances sometimes commit
      or direct violent crimes in furtherance of their enterprises.

United States v. Woods, 2:08-cr-0181-HDM-LRL, 2008 U.S. Dist. LEXIS 66986,
at *9 (D. Nev. Sept. 2, 2008) (quotation, ellipsis, and brackets omitted); see
United States v. Askew, 403 F.3d 496, 508 (7th Cir. 2005) (observing that
“[g]uns are among the tools of the drug trade” (quotation omitted)); United
States v. Garcia, Criminal Action No. 07-CR-00529, 2007 U.S. Dist. LEXIS
72525, at *11 (E.D. Pa. Sept. 20, 2007) (observing that drug possession with
the intent to distribute is “an inherently dangerous activity”).

       The intervenors allege that Mutrie knew of her son’s involvement in
dangerous drug activity, and that she “directly and indirectly and wantonly and
recklessly supported and facilitated” it. Accordingly, we conclude that because
a reasonable person in Mutrie’s position would know that some harm would
result from her alleged knowing, reckless, and wanton support and facilitation
of her son’s criminal drug activity, Mutrie’s conduct was inherently injurious,
and, therefore, cannot be considered accidental. Therefore, her conduct does
not constitute an “occurrence” as is necessary to trigger coverage under the
Policies.

        The intervenors next argue that the trial court erred in failing to consider
the entirety of the materials submitted by the parties on summary judgment.
Specifically, the intervenors argue that the trial court erred by not considering
Mutrie’s denials of actual knowledge of her son’s criminal activity. The
intervenors, however, offer no evidence that the court failed to consider all of
the materials submitted. Further, even when we consider the materials that
the intervenors claim that the court ignored, we find no error. Mutrie’s denials
of her knowledge of her son’s illegal drug activity, although highly relevant to
the ultimate determination of her liability in the underlying lawsuit, are
irrelevant to the narrow issue before the court: whether the intervenors’
allegations bring their cause of action within the express terms of the Policies.
See Jespersen, 131 N.H. at 261 (concluding that insured’s ultimate liability in
underlying suit is irrelevant to determining insurer’s duty to defend). We note
that, in the underlying litigation against Mutrie, the intervenors do not allege
that Mutrie engaged in accidental or negligent conduct. Thus, the intervenors
fail to show that the purportedly “overlooked” documents – evidencing Mutrie’s
statements that she had no knowledge of her son’s conduct – give rise to a
genuine issue of material fact in this declaratory judgment action.


                                         5
      Finally, the intervenors argue that Amica’s motion for summary
judgment did not satisfy the requirements of RSA 491:8-a, II (2010). However,
not only did the intervenors fail to identify this issue in their notice of appeal,
they have not demonstrated that they raised this issue before the trial court.
Accordingly, we decline to address this argument. See Bean v. Red Oak Prop.
Mgmt., 151 N.H. 248, 250 (2004); LaMontagne Builders v. Bowman Brook
Purchase Group, 150 N.H. 270, 276 (2003).

      In sum, we hold that Mutrie’s alleged “wanton” and “reckless” support
and facilitation of her son’s criminal activity is inherently injurious conduct
which does not constitute an accidental “occurrence.” Consequently, there is
no coverage under the Policies for the intervenors’ claims against Mutrie.
Given our conclusion, we need not reach the issue raised by Amica in its cross-
appeal.

                                                   Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.




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