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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