Lawsuit for Delay of Approval of Subdivision Application
In Town of Goshen v. Grange Mut. Ins. Co. 120 N.H. 915, (1980) a developer sued the insured, a local government, for delay in the approval of a subdivision application which had prevented him from using his property as planned. the town sought insurance coverage for the suit.
The trial court ruled for the town, and the New Hampshire Supreme Court affirmed in a short per curiam decision which held that a "regulatory obstacle to the use of real property" could fall within the "other invasion" language. (Town of Goshen v. Grange Mut. Ins. Co., supra, 424 A.2d at p. 824.)
However, the opinion is particularly unenlightening; it fails to explain how the court reached its conclusion.
The decision consists of 10 paragraphs. the first five paragraphs merely relate the facts and quote the relevant contract terms:
The town had passed certain regulations which created "economic hardships" that destroyed the viability of a developer's project, the town was being sued, and it had an insurance policy which provided personal injury coverage. (Town of Goshen v. Grange Mut. Ins. Co., supra, 424 A.2d at p. 823.)
The sixth paragraph sets up the issue as framed by the insurer, i.e., whether the absence of any invasion upon the land precluded coverage, and juxtaposed that issue with the trial court's ruling finding coverage. the opinion does not explain how or why the trial court concluded there was coverage.
The seventh paragraph of the opinion consists of three sentences and contains the actual ruling. the first sentence is a topic sentence giving the court's conclusion, stating it was rejecting the insurer's argument:
"We cannot accept the insurer's argument that an appreciable and tangible interference with the physical property itself is necessary to constitute an 'invasion of the right of private occupancy.' " (Town of Goshen v. Grange Mut. Ins. Co., supra, 424 A.2d at p. 824.)
The entire weight of the court's reasoning is carried by the second sentence of the seventh paragraph. But instead of giving a reason why it could not accept the insurer's argument, the court relies on its raw authority: "We are of the opinion that the allegations in the complaint would constitute the required 'invasion of the right of private occupancy.' " (Town of Goshen v. Gange Mut. Ins. Co., supra, 424 A.2d at p. 824.)
That is the sum total of the court's "analysis." the third sentence merely reiterates the third party allegations, without any attempt to connect the language of the policy to those allegations.
Nor do the final three paragraphs, which hold that a decision in favor of coverage was not precluded by the developer having based its action against the city on a federal civil rights statute (42 U.S.C. 1983), explain why a decision in favor of coverage was merited in the first place.
In sum, the Town of Goshen opinion never explains why land use regulations could constitute an invasion of real property.
The court merely put the words "we are of the opinion" in front of its conclusion.