Supreme Court At-a-Glance Contributor Sam Harkinson, Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts.

No. 2019-0620

March 10, 2021



  • Whether the lack of a landlord tenant relationship negates the applicability of the anti-subrogation rule found in New Hampshire case law.


This matter involves interpretation of the Court’s prior decision in Cambridge Mutual Fire Insurance Co. v. Crete, 150 N.H. 673 (2004), wherein the Court adopted the doctrine found in Sutton v. Jondahl, 532 P.2d. 478 (1975).  The Court in Crete adopted the rule found in Sutton that unless express language exists in the lease agreement stating otherwise, an insurance company cannot subrogate against a tenant who negligently caused damage to an apartment building for which the landlord had purchased the requisite fire insurance.

In this case, the Plaintiffs were both students at Dartmouth College, both living in separate residence halls, both being governed by the college policy prohibiting the use of open flame sources.  Despite this, the Plaintiffs engaged in behavior that caused a fire to breakout in one residence hall, causing substantial smoke, fire, and water damage to the entire building.  The Plaintiffs filed for declaratory relief that they were the co-insureds of Dartmouth College, with the Defendant, Factory Mutual Insurance Company (the “Insurer”), filing counterclaims for negligence and breach of contract, which the trial court stayed pending resolution of the action for declaratory relief.  Both parties moved for summary judgment with the trial court finding that the rule in Crete applied in the context of campus housing agreements with college students.

In rejecting the Insurer’s argument that Crete was not applicable due to the lack of a landlord-tenant relationship, the Court found that the doctrine found in Sutton was not a rule of property law, but rather a doctrine regarding the equitable remedy of subrogation.  The Court discussed the relationship similarities, and ultimately concluded that the relationships were similar enough such that the rule in Sutton should be applicable in this case.

The Court rejected the Insurer’s argument that the applicable student handbook, which contained statements indicating that a student could be liable for damages relating to violations, including violations relating to fire damage.  However, the Court found that in order for the language in the notice to be applicable, it would require additional language that explicitly indicated that the student could be subject to subrogation for damage caused by fires.  The Court also rejected the Insurer’s argument to follow other jurisdictions that follow a balancing test when determining whether a student should be liable for damages related to a fire.


Getman, Schulthess, Steere & Poulin, P.A., Debbie Lorusso Makris on brief and orally for Plaintiff Daniel Ro.  Law Offices of John B. Schulte, John B. Schulte and Brandon F. Chase on the brief and John B. Schulte orally for Plaintiff Sebastian Lim.  Monahan & Associates, P.C., Matthew R. Passeri on the brief and orally for the Defendant.