Alternative Energy, Inc. v. St. Paul Fire & Marine Insurance

United States Court of Appeals
For the First Circuit

No. 02-1232

ALTERNATIVE ENERGY, INC.,
BEAVER-CADILLAC, GP, INC.,
BEAVER PLANT OPERATIONS, INC.,
CHRISTOPHER HUTCHINS,

Plaintiffs, Appellees,

v.

ST. PAUL FIRE AND MARINE INSURANCE COMPANY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U. S. District Judge]

Before

Boudin, Chief Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Torruella, Circuit Judge.

Jeffrey J. Ward, with whom Richard A. Simpson, and Ross, Dixon
& Bell, L.L.P. were on brief, for appellant.
Joanne I. Simonelli, with whom Jeffrey Bennett, The Bennett
Law Firm, P.A., Daniel G. Lilley, Esq., and Daniel G. Lilley Law
Offices, P.A., were on brief, for appellees.

November 22, 2002

*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
 JOHN R. GIBSON, Senior Circuit Judge. St. Paul Fire and

Marine Insurance Company appeals from a district court order

denying its claim for the attorneys' fees it incurred in defending

the original action brought by Alternative Energy, Inc., Beaver-

Cadillac, G.P., Inc., Beaver Plant Operations, Inc., and

Christopher Hutchins.1 The district court rejected St. Paul's

motion under 28 U.S.C. § 2202 (2000) for further relief, relying

upon the language of the indemnification clause in the 1998

Settlement Agreement. St. Paul argues that the district court

misinterpreted the indemnification clause, but even accepting the

district court's interpretation, St. Paul would be entitled to the

award of attorneys' fees and costs. We affirm the judgment of the

district court.

This action began as a legal malpractice claim filed by

Alternative Energy, Inc. in Maine state court against attorneys

Peter Murray and John Lightbody and the law firm of Murray, Plumb

& Murray, P.A. Alternative Energy, Inc. ultimately entered into

two settlements: one with the defendants and the law firm's

professional liability carrier, St. Paul, and one with Zurich-

American Insurance Company, which insured Murray after he left the

firm and began his own practice. After the settlement agreements

were executed, Alternative Energy, Inc. filed an amended complaint

1
We will refer to plaintiffs-appellees collectively as
Alternative Energy, Inc.

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for declaratory judgment against St. Paul. St. Paul removed the

action to federal court and filed a motion to dismiss under Fed. R.

Civ. P. 12(b)(6) based on the settlement agreement. The district

court granted the motion and we affirmed. See Alternative Energy,

Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30 (1st Cir.

2001).

The procedural history of this case through its dismissal

by the district court is recited in our earlier opinion. Because

most of it is not relevant to this appeal, we do not repeat it

here. After the mandate issued, St. Paul filed a motion in the

district court under 28 U.S.C. § 2202 to recover attorneys' fees it

incurred in defending the post-settlement amended complaint. The

district court denied the motion. The only issue in this appeal is

whether the district court correctly declined to award St. Paul the

attorneys' fees it requested as further relief under § 2202.

St. Paul points to the 1998 Settlement Agreement with

Alternative Energy, Inc. and asserts that the district court

misinterpreted its provisions. "[Q]uestions about the meaning of

contractual provisions are questions of law, and we review the

district court's answers to them de novo." U.S. Liab. Ins. Co. v.

Selman, 70 F.3d 684, 687 (1st Cir. 1995).

St. Paul's claim relies upon the following provision in

the 1998 Settlement agreement:

The Releasors [Alternative Energy Group, Inc., et. al.]
further agree to hold the Releasees [St. Paul and its

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 insured] harmless from, and to defend and indemnify the
Releasees against, any claims or actions of any kind for
contribution and/or indemnification by any other person
or organization on account of the judgment or settlement
of any claim asserted by or on behalf of any person as a
result of the damages allegedly sustained by the
Releasors, or any of them, arising out of the Cadillac
Project. (Parentheticals and emphasis added.)

The determinative phrase in this paragraph states that Alternative

Energy, Inc. agrees to defend and indemnify St. Paul against claims

or actions brought by "any other person." St. Paul argues that a

claim brought by Alternative Energy Inc. is an action by "any other

person." Webster's New Collegiate Dictionary defines "other" as

"being the one or ones distinct from that or those first mentioned

or implied." Webster's New Collegiate Dictionary 835 (9th ed.

1986).2 The district court interpreted "other" in the context of

the paragraph as meaning someone other than the two previously

mentioned groups: releasors [Alternative Energy, Inc., et. al.] and

releasees [St. Paul and its insured]. We agree with this

interpretation. The district court correctly determined that this

"defend and indemnify" provision does not cover claims brought by

Alternative Energy, Inc.3

2
See also Black's Law Dictionary 1101 (6th ed. 1990) ("other"
is defined as "[d]ifferent or distinct from that already mentioned;
additional, or further.").
3
St. Paul also argues that it should be awarded attorneys'
fees because Alternative Energy, Inc. asserted a claim on behalf of
Attorney Peter Murray, a non-releasor. Under the language of the
contract, even if a claim was asserted "on behalf of any person,"
it still had to be brought by "any other person." And as stated
above, an action brought by Alternative Energy, Inc. is not an

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 The district court contrasted the cited provision with a

later provision of the Settlement Agreement, which allows for

attorneys' fees in the event of a breach of the non-disclosure

agreement.

Since freedom from costs of future litigation represents
an important item of consideration bargained for by the
parties to the settlement reflected in this General
Release and Indemnity Agreement, the Releasors agree that
if any of the Releasees sues and wins a judgment against
any of the Releasors for breach of the non-disclosure
agreement set forth in the preceding paragraph, then the
damages recoverable for such breach shall include the
reasonable attorneys' fees and costs incurred in that
lawsuit.

As the district court explained, the parties could have added a

provision that attorneys' fees would be recoverable in any lawsuit

to enforce the terms of the settlement agreement, rather than

limiting it to the non-disclosure agreement, but no such language

appears.

When a contract is unambiguous, the interpretation of

such contract is left to the court to construe the unambiguous

language in accordance with its plain and generally accepted

meaning. Lidstone v. Green, 469 A.2d 843, 846 (Me. 1983). The

district court correctly determined that the settlement agreement

did not require Alternative Energy, Inc. to indemnify St. Paul for

the attorneys' fees it spent defending the declaratory judgment

action. Accordingly, we affirm.

action brought by "any other person."

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