Littlefield v. Acadia Insurance

United States Court of Appeals
For the First Circuit

No. 04-1751
No. 04-1778

DANIEL LITTLEFIELD,

Plaintiff, Appellant,

v.

ACADIA INSURANCE COMPANY,

Defendant, Appellee,

KAREN K. HARTMAN,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Gordon A. Rehnborg, Jr., with whom Mary Ann Dempsey and Wiggin
& Nourie, P.A., were on brief, for Appellant Daniel Littlefield.
Leonard W. Langer, with whom Marshall J. Tinkle and Tompkins,
Clough, Hirshon & Langer, P.A., were on brief, for appellee.

December 8, 2004
 LIPEZ, Circuit Judge. This case requires us to decide

whether a provision of a yacht insurance policy excluding coverage

for "any loss, damage or liability willfully, intentionally or

criminally caused or incurred by an insured person" is ambiguous as

applied to an insured who was convicted of criminally negligent

homicide after his involvement in a fatal boat collision, and, if

not ambiguous, whether its enforcement would render coverage under

the policy illusory. Answering both questions in the negative, we

affirm the district court's order granting summary judgment to

Defendant-Appellee Acadia Insurance Company ("Acadia") and denying

summary judgment to Plaintiff-Appellant Daniel Littlefield in

Littlefield's action seeking a declaratory judgment of coverage

under the yacht insurance policy.

I.

On August 11, 2002, Daniel Littlefield was operating a

thirty-six-foot motorized pleasure boat insured under an Acadia

"yacht policy" on Lake Winnipesaukee in New Hampshire when it

collided with another boat, killing one of that boat's passengers,

John H. Hartman. In January 2003 Littlefield was indicted by a

grand jury on two counts of criminally negligent homicide under

sections 630:3(I) and (II) of the New Hampshire Criminal Code.1

1
Section 630:3 provides, in pertinent part:

I. A person is guilty of a class B felony when
he causes the death of another negligently.

-2-
Also in January 2003, the victim's widow and executrix of his

estate, Defendant-Appellant Karen K. Hartman ("Hartman"), brought

a wrongful death action against Littlefield in New Hampshire state

court alleging negligence. On April 3, 2003, Littlefield, in turn,

sought a declaratory judgment in New Hampshire state court that

Acadia was obligated under the terms of the yacht policy to provide

him with insurance coverage, including a defense in Hartman's

wrongful death suit.2

II. A person is guilty of a class A felony
when in consequence of being under the
influence of intoxicating liquor or a
controlled drug or any combination of
intoxicating liquor and controlled drug while
operating a propelled vehicle, as defined in
RSA 637:9, III or a boat as defined in RSA
270:48, II, he causes the death of another.

N.H. Rev. Stat. Ann. § 630:3 (2004). All sections of the New
Hampshire Criminal Code to which we refer were in effect at the
time of the collision on August 11, 2002.
2
Littlefield was permitted in state court to name Hartman,
with her consent, as a defendant in his declaratory judgment action
because she had standing under New Hampshire state law to contest
Acadia's denial of coverage to Littlefield under the insurance
policy. Since Hartman and Littlefield are both citizens of New
Hampshire, Hartman's inclusion as a defendant would defeat complete
diversity. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267
(1806); see also Am. Fiber & Finishing, Inc. v. Tyco Healthcare
Group, LP, 362 F.3d 136, 139 (1st Cir. 2004) (discussing
"abecedarian rule that there must be complete diversity among the
parties to sustain diversity jurisdiction"). As Hartman's interest
in this case and the relief she seeks are identical to
Littlefield's, she should have been re-aligned as a plaintiff, and
we re-align her. See City of Indianapolis v. Chase Nat'l Bank, 314
U.S. 63, 75 n.4 (1941) ("the parties must be aligned according to
their 'attitude towards the actual and substantial controversy'"
for purposes of determining diversity of citizenship) (quoting
Sutton v. English, 246 U.S. 199, 204 (1918)); see also Saylab v.

-3-
 Acadia asserted that it had no such obligation under two

separate provisions of the yacht policy, the first contained in

Section B of the policy, which governs "Protection and Indemnity

Insurance," and the second contained in Section G, which sets forth

"General Conditions" applicable to the entire policy. The

provision in Section B excludes from coverage "any loss, damage or

liability willfully, intentionally or criminally caused or incurred

by an insured person." The provision in Section G excludes

coverage for "any loss, damage or expense arising out of or during

any illegal activity on your part or on the part of anyone using

the insured's property with your permission."3 On May 2, 2003,

Acadia removed the case to federal district court, citing both

diversity and possible admiralty jurisdiction.

On June 20, 2003, a Belknap County Superior Court jury

found Littlefield not guilty on the indictment's first count of

"negligently causing the death of another in the consequence of

being under the influence of intoxicating liquor while operating a

boat on Lake Winnepesaukee," a Class A felony, but guilty of the

Harford Mut. Ins. Co., 271 F. Supp. 2d 112, 116 (D.D.C. 2003)
(realigning insured as plaintiff in tort plaintiff's declaratory
judgment action against insurance company).
3
The policy defines an "insured person" as "the person named
on the Declaration Page and any family member who resides with you.
It shall also include any person or organization whom you permit to
operate the yacht without charge and for private pleasure only."
It is undisputed that Littlefield was operating the yacht with the
permission of his father, the policyholder, and is an insured
person under the policy.

-4-
second count of "negligently caus[ing] the death of another while

operating a boat . . . and fail[ing] to keep a proper lookout," a

Class B felony. Citing principles of issue preclusion, Acadia

moved for summary judgment in this case on the ground that

Littlefield's criminal conviction rendered his potential liability

in Hartman's wrongful death action "criminally caused or incurred,"

as well as "arising out of or during . . . illegal activity" within

the meaning of the policy exclusions. Littlefield brought a cross-

motion for summary judgment, arguing that the language of the

policy exclusion in Section B of the policy is ambiguous and should

be construed to provide coverage despite his criminal conviction.

Littlefield asserted that a reasonable insured would interpret

"willfully, intentionally or criminally caused or incurred"

liability or losses to refer only to those caused or incurred

through the commission of willful or intentional crimes. Under

Littlefield's interpretation, liability incurred through the

commission of unintentional crimes, including criminally negligent

homicide, would not be excluded from coverage.4 Littlefield also

4
It is undisputed that Littlefield did not intend either to
collide with the other boat or to kill the victim as a result of a
collision. Under N.H. Rev. Stat. Ann. § 626:2(d) (2004), "A person
acts negligently with respect to a material element of an offense"
for the purposes of the criminal code, including section 630:3,

when he fails to become aware of a substantial
and unjustifiable risk that the material
element exists or will result from his
conduct. The risk must be of such a nature
and degree that his failure to become aware of

-5-
argued that enforcement of either the exclusion provision in

Section B or Section G of the policy would leave so few claims

actually covered as to render coverage under the policy illusory in

contravention of public policy favoring compensation of innocent

victims unintentionally harmed by an insured.

On May 11, 2004, the federal district court granted

Acadia's motion for summary judgment and denied Littlefield's

cross-motion for summary judgment, finding that coverage was

excluded under the provision in Section B regarding "any loss,

damage or liability willfully, intentionally or criminally caused

or incurred by an insured person." The court stated:

It is well understood that negligence can be
criminal when it results in death. The policy
does not limit the exclusion to intentional
crimes and the mere fact that the phrase is
grouped with exclusions for willfully and
intentionally caused acts would not cause a
reasonably informed insured to read a
limitation into the exclusion that it does not
contain.

Littlefield v. Acadia Ins. Co., No. 03-CV-220, 2004 U.S. Dist.

LEXIS 8410, at *8-9 (D.N.H. May 11, 2004). The court also rejected

Littlefield's argument that the exclusion provision is

it constitutes a gross deviation from the
conduct that a reasonable person would observe
in the situation.

Under New Hampshire state law, criminal negligence is measured
against an objective standard. State v. Ebinger, 603 A.2d 924, 925
(N.H. 1992) ("Whether [a] defendant failed to become aware of a
'substantial and unjustifiable risk' is determined by an objective
test, not by reference to the defendant's subjective perception.").

-6-
unenforceable as contrary to public policy. The court did not

reach the applicability or enforceability of the exclusion

provision in Section G.5 Littlefield and Hartman appealed, and

their cases were consolidated for purposes of appeal.6

II.

We review a district court's grant of summary judgment de

novo. Rodriguez v. Smithkline Beecham, 224 F.3d 1, 5 (1st Cir.

2000). Summary judgment is appropriate only where "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "Cross

motions simply require us to determine whether either of the

parties deserves judgment as a matter of law on facts that are not

disputed." Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170

(1st Cir. 2004) (internal quotation marks and citation omitted).

The parties contest only the interpretation of the yacht insurance

5
We also do not reach the question of whether the provision in
Section G is unambiguous and enforceable as applied to these facts.
6
Littlefield also appealed from his criminal conviction on
sufficiency of evidence as well as other grounds. Oral argument
was heard in the New Hampshire Supreme Court on October 13, 2004,
and a decision is pending. In the event that the New Hampshire
Supreme Court grants a judgment of acquittal to Littlefield or
remands for a new trial, the premise of the district court's ruling
and ours will have changed. Littlefield could then move for relief
in the district court from the district court's judgment on the
ground that "a prior judgment upon which it is based has been
reversed or otherwise vacated." See Fed. R. Civ. P. 60(b)(5).

-7-
policy's exclusion provisions. Whether there is any ambiguity in

the exclusion provisions is a question of law for the court to

determine. See Nieves v. Intercontinental Life Ins. Co. of P.R.,

964 F.2d 60, 63 (1st Cir. 1992).

A. Choice of Law

We first identify the applicable law. The Acadia yacht

policy contains a choice-of-law provision: "This Policy shall be

governed by and construed under the general Maritime Law of the

United States of America regardless of the venue or jurisdiction of

the court or arbitration." The parties do not dispute the

applicability of the choice-of-law provision, and federal maritime

law is clearly applicable to the yacht policy at issue, Acadia

Ins. Co. v. McNeil, 116 F.3d 599, 603 (1st Cir. 1997) . Even under

federal maritime law, however, "[a] maritime contract's

interpretation may so implicate local interests as to beckon

interpretation by state law." Norfolk S. Ry. Co. v. Kirby, ____

U.S. ____, ____ (2004).

To determine whether application of state law is

appropriate under federal maritime law, we must first inquire

whether any federal statute governs the interpretation of the

policy provision at issue in this case, and we find none. See

Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 314, 321

(1955) ("Since Congress has not taken over regulation of marine

insurance contracts . . . there is no possible question here of

-8-
conflict between a state law and any federal statute."). Next, we

ask whether there is a specific, federal, judicially-created rule

governing the interpretation of this policy, and we also find none.

See, e.g., Commercial Union Ins. Co. v. Flagship Marine Servs.,

Inc., 190 F.3d 26, 30 (2d Cir. 1999) (finding "no specific federal

rule governing construction of maritime insurance contracts").

Instead, we note that general principles of contract law are used

to interpret marine insurance policies. See id.; see, e.g.,

Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 306 (2d

Cir. 1987) (noting that the principle that an ambiguous insurance

contract "will generally be construed against the insurer who

drafted it in order to promote coverage for losses to which the

policy relates . . . applies to all types of insurance policies[,]

including maritime policies.") (citations omitted); Kalmbach, Inc.

v. Ins. Co. of the State of Penn., 529 F.2d 552, 555 (9th Cir.

1976) ("[W]e can see no significant difference between construction

of an ordinary insurance policy and one with marine insurance

overtones. In general, each is to be construed against the

insurance company."). Having discerned that there is no federal

statute or federal rule governing the interpretation of the policy

in this case, we lastly must inquire whether we should fashion such

a rule, and conclude we should not. See Wilburn Boat Co., 348 U.S.

at 314 (deciding, as Congress has, to leave the regulation of

marine insurance with the states); McNeil, 116 F.3d at 603

-9-
(favoring application of state law over "the fashioning of new

federal law" where no conflict between state law and any applicable

federal statute is presented) (internal quotation marks and

citation omitted). Therefore, having found no federal statute or

judicially-created rule governing the interpretation of maritime

insurance policies, and concluding that we should not fashion any

such rule, we look to the state law of New Hampshire, as do the

parties in this case, to govern our interpretation.7

7
The district court did not explicitly address either the
parties' choice of federal maritime law as expressed in the
insurance policy provision or its reasons for applying New
Hampshire law as a consequence of the application of federal
maritime law principles. It simply stated: "I interpret the
[yacht] policy using New Hampshire law," Littlefield, 2004 U.S.
Dist. LEXIS 8410, at *5-6, and cited Acadia Ins. Co. v. McNeil, 116
F.3d 599 (1st Cir. 1997). Nor do the parties specify their reasons
for applying New Hampshire law. Although the record in this case
does not permit an exhaustive analysis of the contacts of the
parties or the insurance policy with the state of New Hampshire, we
are satisfied that the contacts that do appear in the record --
namely, the New Hampshire citizenship of the insured (Littlefield),
and the storage and operation of the subject matter of the
insurance contract (the yacht) in that state -- adequately support
the application of New Hampshire law in this case. See, e.g.,
Aqua-Marine Constructors, Inc. v. Banks, 110 F.3d 663, 674 (9th
Cir. 1997) (citing factors listed in Restatement (Second) of
Conflict of Laws § 188 (1971), including "the location of the
subject matter of the contract" and "the domicil, residence,
nationality, place of incorporation and place of business of the
parties" as establishing sufficient contacts under federal maritime
choice-of-law rules for applicability of a state's law in marine
insurance contracts cases). But see Albany Ins. Co. v. Anh Thi
Kieu, 927 F.2d 882, 891 (5th Cir. 1991) (applicable state law under
federal maritime choice-of-law rule includes law of state in which
marine insurance policy was formed or law of state in which policy
was issued and delivered). See also Restatement (Second) of
Conflict of Laws § 9 (1971) ("Limitations on Choice of Law": "A
court may not apply the local law of its own state to determine a
particular issue unless such application of this law would be

-10-
B. New Hampshire Rules of Construction

In the absence of any New Hampshire court decision

addressing the precise policy exclusion at issue, we resolve the

question before us in light of New Hampshire state law governing

the interpretation of insurance policies in general. See Coakley

v. Me. Bonding and Cas. Co., 618 A.2d 777, 781 (N.H. 1992). Under

that body of law, "the fundamental inquiry" in interpreting an

insurance policy, as with other written contracts, "centers on

determining the intent of the parties at the time of the

agreement." Trombly v. Blue Cross/Blue Shield of N.H.-Vt., 423

A.2d 980, 984 (N.H. 1980). To this end, a court examining the

language of an insurance policy must "take the plain and ordinary

meaning of the policy's words in context[] and . . . construe the

terms of the policy as would a reasonable person in the position of

the insured based on more than a casual reading of the policy as a

whole." Brouillard v. Prudential Prop. & Cas. Ins. Co., 693 A.2d

63, 66 (N.H. 1997) (internal quotation marks and citation omitted).

Because insurance policies must be interpreted to protect the

reasonable expectations of the policyholder, see A.J. Cameron Sod

Farms, Inc. v. Cont'l Ins. Co., 700 A.2d 290, 292 (N.H. 1997), a

court must inquire "whether the ordinary layman in the position of

the insured could reasonably be expected to understand that certain

reasonable in the light of the relationship of the state and of
other states to the person, thing or occurrence involved.").

-11-
exclusions qualif[y] the policy's grant of coverage." N.H. Ins.

Co. v. Schofield, 406 A.2d 715, 717 (N.H. 1979) (internal quotation

marks and citations omitted).

If, under this standard, an insurance policy provision is

susceptible to more than one reasonable interpretation, "and an

interpretation provides coverage, the policy contains an ambiguity

and will be construed against the insurer." Fed. Bake Shop v.

Farmington Cas. Co., 736 A.2d 459, 460 (N.H. 1999); see also

Contoocook Valley Sch. Dist. v. Graphic Arts Mut. Ins. Co., 788

A.2d 259, 261 (N.H. 2001) ("We will deem a policy term ambiguous as

to coverage when the parties may reasonably differ about their

interpretation and will construe the ambiguity in favor of the

insured."). Interpretation of an ambiguity to favor the insured as

against the insurer "is particularly applicable when ambiguities

are found in an exclusionary clause." Id. (internal quotation

marks and citation omitted). At the same time, while ambiguous

terms may be construed to favor an insured, we may not find a term

ambiguous merely because it eliminates coverage. See Funai v.

Metro. Prop. & Cas. Co., 765 A.2d 689, 691 (N.H. 2000) ("While we

construe insurance policies in favor of the insured when the policy

is ambiguous, we will not force an ambiguity simply to resolve it

against an insurance company.").

-12-
C. Application to the Yacht Policy

The Acadia yacht policy itself contains no definition of

the word "criminally." Dictionary definitions, while not

controlling, "are of some value . . . to the extent they inform us

of the common understanding of terms." Hudson v. Farm Family Mut.

Ins. Co., 697 A.2d 501, 503 (N.H. 1997); see Coakley, 618 A.2d at

786 (turning to dictionary "[t]o determine the plain and ordinary

meaning of [a] word . . . as understood by a layperson of average

intelligence"). The American Heritage Dictionary of the English

Language (4th ed. 2000) defines the adjective "criminal" as,

simply, "[o]f, involving, or having the nature of crime." "Crime,"

in turn, is defined as "[a]n act committed or omitted in violation

of a law forbidding or commanding it and for which punishment is

imposed upon conviction." Id. Whether or not a particular offense

is a "crime" in common parlance thus depends on the existence of

some legal duty or prohibition, not the mental state of the actor.8

The exclusion provision thus unambiguously excludes

coverage for liability incurred by an insured person, such as

Littlefield, through the commission of a crime for which he has

been convicted -- here, a felony -- without regard to the requisite

8
Nor does the New Hampshire Criminal Code distinguish among
states of mind in defining "crime" for purposes of the Code.
Rather, "[e]very offense is either a felony, misdemeanor or
violation." N.H. Rev. Stat. Ann. § 625:9(II) (2004). "Felonies
and misdemeanors are crimes," but "[a] violation does not
constitute a crime." Id. § 625:9(II)(a), (b).

-13-
mental state of the crime.9 A reasonable layperson "in the

position of the insured based on more than a casual reading of the

policy as a whole," Brouillard, 693 A.2d at 66 (internal quotation

marks and citation omitted), would understand that proposition.

Because we can conceive of no other reasonable interpretation of

the provision at issue, we find no ambiguity in the policy

provision that warrants its being "construed against the insurer."

Fed. Bake Shop, 736 A.2d at 460.

9
We need not decide whether the exclusion provision would be
ambiguous as applied to other facts, for example, where an insured
cannot be convicted of a crime because of a lack of requisite
criminal intent. See, e.g., Allstate Ins. Co. v. Barron, 848 A.2d
1165 (Conn. 2004) (criminal acts exclusion inapplicable where
insured could not be convicted based on lack of capacity to form
culpable intent); Swift v. Fitchburg Mut. Ins. Co., 700 N.E.2d 288,
295 (Mass. App. Ct. 1998) (criminal acts exclusion inapplicable
where insured was found not guilty because he lacked the capacity
to form culpable intent). "[T]he fact that 'terms of a policy of
insurance may be construed as ambiguous where applied to one set of
facts does not make them ambiguous as to other facts which come
directly within the purview of such terms." Allstate Ins. Co. v.
Juniel, 931 P.2d 511, 514 (Colo. Ct. App. 1996) (citing Lee R.
Russ, Couch on Insurance § 21.14 at 21-26 (3d ed. 1995)); see also
Bank of the West v. Superior Court, 833 P.2d 545, 552 (Cal. 1992)
("[L]anguage in a contract must be construed in the context of that
instrument as a whole, and in the circumstances of that case, and
cannot be found to be ambiguous in the abstract.") (internal
quotation marks, citation, and emphasis omitted); Youngwirth v.
State Farm Mut. Auto. Ins. Co., 140 N.W.2d 881, 884 (Iowa 1966)
("ambiguity in an insurance policy is usually a relative term. A
single provision in such a policy may be ambiguous under one given
factual situation, but clear and certain when applied to an
entirely different set of facts."). Here, Littlefield was
convicted of a crime; he thus "come[s] directly within the purview"
of the exclusion for "criminally caused" loss or liability.
Juniel, 931 P.2d at 514.

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 Nevertheless, in an effort to find ambiguity in the

policy exclusion for "willfully, intentionally or criminally caused

or incurred" loss or liability, Littlefield first invokes the

doctrine of ejusdem generis, which provides that "where general

words follow an enumeration of persons or things, by words of a

particular and specific meaning, such general words are not to be

construed in their widest extent, but are to be held as applying

only to persons or things of the same kind or class as those

specifically mentioned." State v. Beckert, 741 A.2d 63, 65 (N.H.

1999) (quoting Black's Law Dictionary 517 (6th ed. 1990)). In

Littlefield's view, the first two words in the list in the Section

B exclusion provision, "willfully" and "intentionally," are "words

of a particular and specific meaning" because they require a higher

level of intent than negligence. By contrast, the word

"criminally," which encompasses a broad spectrum of culpable states

of mind, is a "general" word that should not "be construed in [its]

widest extent, but [should] be held as applying only to" crimes "of

the same kind or class" as the acts encompassed by the preceding

two words. That is to say, "criminally" should be read as limited

by the same high threshold of intent as the words "willfully" and

"intentionally."

We do not agree. "Criminally," when read after the words

"willfully" and "intentionally," is neither more general nor more

specific than the two preceding words; it is merely different.

-15-
Each of the three terms is "general" in the sense that each

encompasses a broad range of specific acts. There is some overlap

in the conduct excluded by these general terms. However,

"criminally" encompasses both unintentional and intentional crimes,

while "willfully" and "intentionally" encompass both non-criminal

and criminal acts. Only "criminally" includes unintentional acts

committed with a criminally culpable state of mind. Criminal

negligence is such an act under the New Hampshire Criminal Code.

N.H. Rev. Stat. Ann. § 626:2(d) (2004). To read the word

"criminally" to incorporate the limitations Littlefield seeks would

render the word extraneous. Loss or liability caused through

"intentional" crimes is already excluded as "intentionally" caused

loss or liability. We decline to ignore the plain meaning of

"criminally" in favor of a reading that would render the word

superfluous. See Restatement (Second) of Contracts § 203(a) (1981)

("an interpretation which gives a reasonable, lawful, and effective

meaning to all the terms is preferred to an interpretation which

leaves a part unreasonable, unlawful, or of no effect"); 2 Lee R.

Russ, Couch on Insurance § 22:43 (3d ed. 1995) ("Since it must be

assumed that each word contained in an insurance policy is intended

to serve a purpose, every term will be given effect if that can be

done by any reasonable construction."). More importantly, where a

policy provision is unambiguous and the contracting parties' intent

is thus clearly manifested in the plain language of that provision,

-16-
resort to canons of interpretation is simply unwarranted. See Eric

Mills Holmes & Mark S. Rhodes, Holmes's Appleman on Insurance § 5.1

(2d ed. 1996) (courts may not "resort to . . . aids of construction

where contract language is unambiguous. The intent of the parties

and meaning of the contract are to be determined by the language

alone.").

As a last-ditch effort, Littlefield urges us to adopt the

reasoning and result of Young v. Brown, 658 So.2d 750 (La. Ct. App.

1995), in which a Louisiana appellate court interpreting a

homeowner's liability insurance policy held that criminally caused

injury must be at least intentional or willful in order to be

excluded from coverage. In that case, the insurance policy

purported to exclude coverage for injury "which may reasonably be

expected to result from the intentional or criminal acts of an

insured person or which is in fact intended by an insured person."

Id. at 752. The Young court stated that,

[n]estled between exclusions for injuries
resulting from intentional acts and for
intentionally inflicted injuries, a reasonable
purchaser could have understood the basis of
the exclusion to be intentional misconduct or
intentional criminal acts, thereby allowing
coverage for damages resulting from criminal
negligence.

Id. at 754.

To the extent that the Young decision rests on a finding

of ambiguity in the challenged exclusion provision, we believe that

-17-
case was wrongly decided.10 We are not alone. A multitude of

jurisdictions have reached a contrary result, finding as a matter

of law that similar provisions unambiguously exclude loss or

liability caused through the commission of a crime without regard

to an insured's intent to act, much less to cause harm. See, e.g.,

Hooper v. Allstate Ins. Co., 571 So.2d 1001, 1002-03 (Ala. 1990)

(finding criminal acts exclusion clause unambiguous and noting that

"[a] number of other jurisdictions have held that the same

exclusion was unambiguous and excluded coverage for injuries

resulting from criminal acts by the insured, regardless of whether

the insured intended to commit the act or to cause the harm"); Am.

Family Mut. Ins. Co. v. White, 65 P.3d 449, 452 & n.1 (Ariz. Ct.

App. 2003) (finding that "the phrase 'any criminal law' plainly

includes all criminal laws, not just those in which 'intent' is an

essential element," and collecting fifteen cases from thirteen

jurisdictions similarly finding on the facts before them, as

contrasted with the sole outlier, Young v. Brown, 658 So.2d 750

(La. Ct. App. 1995)); Allstate Ins. Co. v. Peasley, 932 P.2d 1244,

1249 (Wash. 1997) ("As used in [policy] exclusionary clause, the

10
The Young court implicitly based its determination that the
provision was ambiguous on the fact that enforcing the provision as
written would contravene "Louisiana's public policy that liability
insurance should protect innocent accident victims from losses
resulting from the negligent acts of an insured." Young, 658 So.2d
at 754. As we discuss below, we do not find enforcement of the
exclusion provision in this case to be contrary to New Hampshire
public policy even if enforced according to its clear and
unambiguous terms.

-18-
phrase 'criminal acts' does not distinguish between intentional and

unintentional crimes. The language is unambiguous, and it clearly

encompasses [the] criminal act of reckless endangerment.").

Accordingly, we reject Littlefield's attempts to inject ambiguity

into the yacht policy's provision excluding coverage for "any loss,

damage or liability willfully, intentionally or criminally caused

or incurred by an insured person."

III.

Littlefield asserts that enforcement of the exclusion

provision in Section B, even if the provision is unambiguous, would

render Acadia's promised coverage "illusory" in violation of New

Hampshire public policy favoring compensation of innocent victims

of an insured's unintentional acts. See Am. Policyholder's Ins.

Co. v. Baker, 409 A.2d 1346, 1349 (N.H. 1979) ("[L]iability

insurance is intended not only to indemnify the insured, but also

to protect members of the public who may be injured through

negligence."). In support of this claim, Littlefield points to a

different New Hampshire criminal statute that renders "careless and

negligent" operation of a power boat a misdemeanor and, therefore,

a crime under the New Hampshire Criminal Code, regardless of the

level of harm caused, as distinct from the statute under which he

was convicted, which reaches only criminally negligent conduct that

results in death. Compare N.H. Rev. Stat. Ann. § 270:29-a (2004)

("Careless and Negligent Operation of Boats") with N.H. Rev. Stat.

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Ann. § 630:3 (2004) ("Negligent Homicide"). Littlefield asserts

that any negligent operation of a power boat could result in a

criminal conviction under section 270:29-a, thereby triggering the

exclusion provision for property damage or minor injuries -- that,

is, for harms generally considered to be caused through civil

negligence only. Exclusion of such a wide range of negligently

caused loss or liability, he argues, would leave so few claims

actually covered as to defeat the purpose of purchasing liability

insurance in the first place.

We need not concern ourselves with factual scenarios not

presented by this case. Littlefield was convicted of the felony of

criminally negligent homicide, not the misdemeanor of carelessly

operating a power boat. Nevertheless, even if his conviction had

been for the lesser offense, proof of the requisite culpable mental

state would still be required for a conviction under New Hampshire

state law. Section 625:9(II) of the New Hampshire Criminal Code

makes the Code's definitions of culpable mental states applicable

to misdemeanors codified outside the Criminal Code, such as section

270:29-a (unless the non-criminal statute provides otherwise, which

section 270:29-a does not). Criminally negligent operation of a

power boat, therefore, like all criminal negligence under New

Hampshire state law, requires at least a "fail[ure] to become aware

of a substantial and unjustifiable risk" that "constitutes a gross

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deviation from the conduct that a reasonable person would observe

in the situation." N.H. Rev. Stat. Ann. § 626:2(d) (2004).

Moreover, as Acadia points out, even in the absence of a

statutory requirement of intent, under New Hampshire state law, "a

person cannot be convicted of a crime," including a misdemeanor,

"without proof that the unlawful act was accompanied by a culpable

mental state." State v. Goodwin, 671 A.2d 554, 555 (N.H. 1996).

Negligent operation of a watercraft, in the absence of the

requisite culpable mental state, could not be a crime and would not

trigger the exclusion provision in Section B of the policy. Hence,

criminal negligence differs from civil negligence under New

Hampshire law in important ways,11 and the yacht policy provides

meaningful coverage for loss or liability incurred through the

latter (as well as, Acadia notes, through "non-operational"

negligence such as negligent maintenance).12

11
Under New Hampshire law, civil liability for tortious
negligence may be established where an actor is "in breach of an
existing duty and create[s] a foreseeable risk of harm to someone
to whom that duty is owed." Thibeault v. Campbell, 622 A.2d 212,
214 (N.H. 1993) (citation omitted).
12
We note that numerous state courts have also held that
enforcement of similar insurance policy provisions excluding
coverage for criminally caused loss or liability does not violate
the public policy of those states. See, e.g., Hooper, 571 So.2d at
1003 ("No public policy considerations dictate that an insurer must
indemnify a third party for the criminal acts of an insured.");
White, 65 P.3d at 454 & n.3 (enforcement of exclusion provision
does not violate public policy; collecting cases); Juniel, 931 P.2d
at 516 ("we perceive no violation of public policy because . . .
the criminal act exclusion . . . merely excludes a reasonable
subset of injuries -- those resulting from criminal acts").

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 As the district court noted, "[w]hile reasonable people

can disagree about whether an insurance company should be permitted

to offer insurance that fails to cover liability that results from

criminally negligent conduct, the arguments supporting

Littlefield's position are not so strong as to render the clause

unenforceable." Littlefield, 2004 U.S. Dist. LEXIS 8410, at *9

n.2. We agree.13

IV

Because we find that the insurance policy provision

excluding coverage for "any loss, damage or liability willfully,

intentionally or criminally caused or incurred by an insured

person" is not ambiguous as applied to the undisputed facts of this

case, and that its enforcement against Littlefield does not render

coverage under the policy illusory, the district court's order

granting summary judgment to Acadia and denying summary judgment to

Littlefield is

Affirmed.

13
We express no opinion about whether similar exclusions for
criminal, yet unintentional, conduct in other, non-marine policies
for liability insurance, such as in automobile insurance policies,
would be violative of public policy or would render such coverage
illusory.

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