Old Republic Insurance Co. v. Stratford Insurance Company ( 2015 )


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  •           United States Court of Appeals
    For the First Circuit
    Nos. 14-1179
    14-1229
    OLD REPUBLIC INSURANCE COMPANY,
    Plaintiff, Appellant, Cross-Appellee,
    v.
    STRATFORD INSURANCE COMPANY,
    Defendant, Appellee, Cross-Appellant.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW HAMPSHIRE
    [Hon. Landya McCafferty, U.S. District Judge]
    Before
    Lynch, Chief Judge,
    Howard and Barron, Circuit Judges.
    Daniel W. Gerber, with whom Jonathan L. Schwartz, Goldberg
    Segalla LLP, Naomi L. Getman, Andrew R. Schulman, and Getman,
    Schulthess & Steere, P.A. were on brief, for appellant, cross-
    appellee.
    Laurence J. Rabinovich, with whom Hiscock & Barclay LLP,
    Richard C. Nelson, and Nelson Kinder & Mosseau PC were on brief,
    for appellee, cross-appellant.
    January 26, 2015
    LYNCH, Chief Judge.    This appeal arises out of a dispute
    between two insurers as to their respective duties to defend and
    indemnify a tractor-trailer involved in an auto collision causing
    serious injuries.    The owner of the tractor, Ryder Truck Rentals
    ("Ryder"), obtained primary insurance for the tractor through Old
    Republic Insurance Company ("Old Republic").         The operator of the
    tractor, DAM Express ("DAM"), obtained separate insurance through
    Stratford Insurance Company ("Stratford").          Old Republic brought
    this suit to determine Stratford's insurance obligations.
    The first question is whether the Stratford Policy is co-
    primary with the coverage provided by Old Republic for the tractor
    leased from Ryder.      The answer hinges on the intent of the
    contracting parties, and, more specifically, on which sources a
    court may consult to determine that intent under New Hampshire law.
    We conclude that the district court committed no legal error in
    considering   the   Stratford   Policy   as   a   whole   and   turning   to
    objective extrinsic evidence to resolve inconsistencies found
    therein.   We affirm the district court's conclusion that DAM and
    Stratford never intended the Stratford Policy to provide primary
    coverage to the tractor otherwise covered by Old Republic.
    We must then determine Stratford's corresponding duty to
    defend as an excess insurer of the tractor.       The answer is far from
    clear under New Hampshire law.      The district court interpreted a
    New Hampshire case from 1991 as establishing a rule whereby an
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    insurer's duty to defend is the same regardless of whether its
    designation is as primary or excess. After a close analysis of New
    Hampshire precedent, we conclude that the best course of action is
    to certify this question of New Hampshire law to the New Hampshire
    Supreme Court.
    I.   Factual Background
    On April 7, 2010, a tractor-trailer crashed into Daniel
    and Karla Bendor's vehicle in Connecticut, causing bodily injury.
    The tractor was owned by Ryder, who had leased it to DAM in order
    to transport a trailer owned by Coca-Cola.       The driver, Antoine
    Girginoff, was employed by DAM.
    DAM is a for-hire motor company which operates out of
    Manchester, New Hampshire.   As described by the office manager,
    DAM's work "falls into two categories." "One category is small
    package delivery such as consumer goods which is conducted in vans
    and small trucks owned by D.A.M."       When business is particularly
    busy, DAM rents an extra van of a similar type, for approximately
    $5,000 per year.    "The second category [is] transportation of
    larger shipments in tractor-trailers."      DAM leases these tractors
    from Ryder for approximately $240,000 per year.
    DAM and Ryder's lease agreement specified that Ryder was
    responsible for obtaining liability insurance for the tractor. The
    lease agreement reads:
    A. Liability Insurance. The party designated
    on Schedule A (the "Insuring Party") agrees to
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    furnish and maintain, at its sole cost, a
    policy of automobile liability insurance with
    limits specified on each Schedule A for death,
    bodily injury and property damage, covering
    both you and Ryder as insureds for the
    ownership, maintenance, use, and operation of
    each Vehicle ("Liability Insurance"). . . .
    The Liability Insurance must provide that its
    coverage is primary and not additional or
    excess coverage over insurance otherwise
    available to either party . . . .          The
    Insuring Party agrees to designate the other
    party as an additional insured on the
    Liability Insurance . . . .
    On the form titled "Schedule A," the Insuring Party is identified
    as Ryder alone.   DAM agreed that "Ryder shall have the sole right
    to conduct accident investigations and administer claims handling
    and settlements and [DAM] shall adhere to and accept Ryder's
    conclusions and decisions."
    Ryder obtained liability insurance from Old Republic,
    under which Old Republic agreed to "pay all sums an 'insured'
    legally must pay as damages because of 'bodily injury' or 'property
    damage' to which this insurance applies, caused by an 'accident'
    and resulting from the ownership, maintenance or use of a covered
    'auto'" and to "defend any 'suit' asking for these damages."
    "Insureds" included Ryder "for any covered 'auto'" and "[a]ny
    person or organization for whom [Ryder] is obligated by written
    agreement to provide liability insurance . . . ."      Covered "autos"
    included   "any   'auto,'"    the    definition   of   which   included
    "'[t]railers' with a load capacity of 2000 pounds or less designed
    -4-
    primarily for travel on public roads."             For a coverage limit of
    $1,000,000, Ryder paid a premium of $459,961.
    In a section titled "Other Insurance," Old Republic
    specified: "For any covered 'auto' you own, this Coverage Form
    provides primary insurance."          "However, while a covered 'auto'
    which is a 'trailer' is connected to another vehicle, the Liability
    Coverage this Coverage Form provides for the 'trailer' is: . . .
    [p]rimary while it is connected to a covered 'auto' you own."
    DAM   separately   obtained    insurance     from   Stratford.
    Stratford agreed to "pay all sums an 'insured' legally must pay as
    damages because of 'bodily injury' or 'property damage' to which
    this insurance applies, caused by an 'accident' and resulting from
    the ownership, maintenance or use of a covered 'auto,'" and to
    "defend any 'insured' against a 'suit' asking for such damages."
    The Stratford Policy specified three categories of vehicles as
    covered "autos:" (1) "specifically described 'autos,'" (2) "hired
    'autos,'" and (3) "nonowned 'autos.'"             For a maximum coverage of
    $1,000,000, DAM paid a premium of $4,808.
    "Specifically described 'autos'" are defined as "[o]nly
    those 'autos' described in Item Three of the Declarations for which
    a   premium    charge   is   shown   (and   for    Liability   Coverage   any
    'trailers' [DAM doesn't] own while attached to any power unit
    described in Item Three)." Item Three lists two Chevy Express vans
    and "any non-owned trailer while attached to a covered auto."
    -5-
    "Hired   'autos'"   are   defined   as    "[o]nly   those   'autos'   [DAM]
    lease[s], hire[s], rent[s] or borrow[s]."             In Item Four, DAM
    estimated the cost of hire of these autos to be $5,000 per year.
    The $5,000 per year estimate yielded a liability premium of $400.
    "Nonowned 'autos'" are defined as "[o]nly those 'autos' [DAM]
    do[es] not own, lease, hire, rent or borrow that are used in
    connection with [DAM's] business."
    In the "Other Insurance" section, the Stratford Policy
    specifies that it provides primary coverage for autos that fall
    into one of these three categories of covered autos.          It reads:
    This Coverage Form's Liability Coverage is
    primary for any covered "auto" while hired or
    borrowed by [DAM] and used exclusively in
    [DAM's] business as a "trucker" and pursuant
    to operating rights granted to [DAM] by a
    public authority.      This Coverage Form's
    Liability Coverage is excess over any other
    collectible insurance for any covered "auto"
    while hired or borrowed from [DAM] by another
    "trucker."   However, while a covered "auto"
    which is a "trailer" is connected to a power
    unit, this Coverage Form's Liability Coverage
    is:
    (1) On the same basis, primary or excess, as
    for the power unit if the power unit is a
    covered "auto".
    (2) Excess if the power unit is not a covered
    "auto".
    The Bendors sued Ryder, DAM, and Girginoff in federal
    court in Connecticut on December 3, 2010, for damages in connection
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    with the April 7, 2010, accident.1            As required by its policy with
    Ryder, Old Republic immediately began providing a defense.                   In
    March 2011, Old Republic asked Stratford to participate in the
    defense of its insureds.
    In August 2011, after learning about the underlying
    lawsuit, Stratford proposed a general change endorsement to its
    policy with DAM that was retroactively "effective on the inception
    date of the policy."        That endorsement specified: "For a covered
    'auto' leased or rented to [DAM] by [Ryder] or any related entity,
    LIABILITY COVERAGE is excess over any other collectible insurance."
    Stratford and DAM executed the agreement on November 29, 2011.
    By letter dated December 1, 2011, Stratford informed Old
    Republic that it had no obligation to share in the cost of
    defending or indemnifying its insureds against the underlying
    lawsuit.         Stratford's     Senior   Litigation     Specialist,   Sandra
    McFarlane,       wrote    that    the     "endorsement    reflects     [DAM]'s
    understanding that [it] had opted to purchase primary insurance for
    [its] Ryder vehicles through Ryder."            McFarlane stated that "[a]ny
    coverage provided to either DAM or Mr. Girginoff by Stratford is
    excess to the coverage provided by Ryder and/or Old Republic." For
    this       reason,   McFarlane   took   the   position   that   "Stratford   is
    not . . . obligated to, and will not, share in the cost of
    defending or indemnifying [their] mutual insureds at this time."
    1
    Coca-Cola was subsequently added as a defendant.
    -7-
    II.    Present Litigation
    Old Republic filed suit against Stratford on June 1,
    2012, in state court in New Hampshire.            Old Republic sought a
    declaratory judgment pursuant to New Hampshire Revised Statute
    § 491:22 et seq. that Old Republic and Stratford have co-primary
    obligations to defend and indemnify DAM, Girginoff, and Coca-Cola,
    with   accompanying    claims   for   equitable    reformation,     unjust
    enrichment, and waiver and estoppel. Stratford removed the case to
    the United States District Court for the District of New Hampshire,
    and counterclaimed for a declaratory judgment that Old Republic
    provides primary coverage, and Stratford provides excess coverage,
    for the liability of DAM, Girginoff, and Coca-Cola.
    The district court granted in part and denied in part
    both parties' motions for summary judgment.        Old Republic Ins. Co.
    v. Stratford Ins. Co., No. 12-cv-256-LM, 
    2014 WL 309390
    , at *1
    (D.N.H. Jan. 27, 2014).      The district court concluded that, as to
    the tractor, "the Stratford policy, as initially issued, did not
    require Stratford to provide primary coverage for any losses that
    may ensue in the underlying action."        Id. at *5.     Nevertheless,
    "because   Stratford   concedes   that    its   policy   provides   excess
    coverage," the district court held that Stratford "is obligated to
    share equally in the costs of defending its insureds in the
    underlying action."    Id. at *7.     Old Republic's additional claims
    -8-
    for   equitable   reformation,    unjust   enrichment,   and   waiver   and
    estoppel were dismissed.    Id.
    Both parties appealed.        Old Republic argues that "the
    district court erred in finding that coverage under the Stratford
    Policy is excess over coverage under the [Old Republic] Policy."
    According to Old Republic, the plain language of the original
    policy made Stratford's coverage primary as to the tractor in
    addition to its own, and the subsequent endorsement changing the
    coverage to excess is invalid and unenforceable. Stratford defends
    the district court's holding that it is an excess insurer, but
    contends that the district court erred in requiring it to share
    equally the costs of defense nonetheless.
    We review the district court's grant of summary judgment
    under Federal Rule of Civil Procedure 56 de novo, and affirm "only
    if the record discloses no genuine issue as to any material fact
    and the moving party is entitled to judgment as a matter of law."
    Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of
    London, 
    637 F.3d 53
    , 56 (1st Cir. 2011).      In this analysis, we view
    the facts in the light most favorable to the nonmoving party and
    draw all reasonable inferences in that party's favor.            
    Id.
        The
    presence of cross-motions for summary judgment does not affect this
    analysis. Scottsdale Ins. Co. v. Torres, 
    561 F.3d 74
    , 77 (1st Cir.
    2009).
    -9-
    III.    Stratford's Coverage
    In New Hampshire, "[t]he fundamental goal of interpreting
    an insurance policy, as in all contracts, is to carry out the
    intent of the contracting parties." Bates v. Phenix Mut. Fire Ins.
    Co., 
    943 A.2d 750
    , 752-53 (N.H. 2008) (quoting Tech-Built 153, Inc.
    v. Va. Sur. Co., 
    898 A.2d 1007
    , 1009 (N.H. 2006)); see also Hansen
    v. Sentry Ins. Co., 
    756 F.3d 53
    , 61 (1st Cir. 2014).              Analyzing the
    language of the policy and an extrinsic agreement, the district
    court concluded that DAM and Stratford never intended to provide
    co-primary coverage to the tractor DAM leased from Ryder.                     Old
    Republic, 
    2014 WL 309390
    , at *5-6.
    The key question here under New Hampshire law is what
    sources a court may consult -- and in what circumstances -- to
    ascertain the parties' intent for coverage. "The interpretation of
    a contract, including whether a contract term is ambiguous, is
    ultimately a question of law . . . ."                    Birch Broad., Inc. v.
    Capitol   Broad.    Corp.,    
    13 A.3d 224
    ,    228   (N.H.   2010).      "[T]o
    determine    what   the   parties,        as    reasonable   people,      mutually
    understood the ambiguous language to mean necessarily involves
    factual findings . . . ."          
    Id.
    Our search for the parties' intent as to the coverage of
    the tractor begins with the words of the policy itself. Bates, 
    943 A.2d at 753
    .   The New Hampshire Supreme Court recently summarized:
    In interpreting policy language, we look to the
    plain and ordinary meaning of the policy's
    -10-
    words in context. We construe the terms of the
    policy as would a reasonable person in the
    position of the insured based upon more than a
    casual reading of the policy as a whole.
    Policy terms are construed objectively, and
    where the terms of a policy are clear and
    unambiguous, we accord the language its natural
    and ordinary meaning. . . .
    White v. Vt. Mut. Ins. Co., No. 2013-569, 
    2014 WL 6533298
    , at *3
    (N.H. Nov. 21, 2014) (quoting Bates, 
    943 A.2d at 753
    ).      In this
    inquiry, we are not constrained to the specific terms of the
    provision involved; we must read the policy "as a whole."       See
    Great Am. Dining, Inc. v. Phila. Indem. Ins. Co., 
    62 A.3d 843
    , 848
    (N.H. 2013).
    To go beyond the four corners of the policy, however,
    generally requires ambiguity.   See White, 
    2014 WL 6533298
    , at *3;
    Birch Broad., 
    13 A.3d at 228
    ; Lawyers Title Ins. Corp. v. Groff,
    
    808 A.2d 44
    , 48 (N.H. 2002). Clear and unambiguous policy language
    is generally the best evidence of the parties' intent, and courts
    do not lightly disregard it.    See White, 
    2014 WL 6533298
    , at *3.
    When faced with an internally inconsistent policy, the
    New Hampshire Supreme Court has looked to "objective extrinsic
    evidence," such as other agreements between relevant parties, to
    "conclusively resolve[]" the intent of the contracting parties.
    See Tech-Built, 898 A.2d at 1010. In Tech-Built, the New Hampshire
    Supreme Court considered a contract between Surge, an employee
    leasing company, and its insurer, Virginia Surety. Id. at 1008-09.
    At issue was whether Surge's Virginia Surety policy extended
    -11-
    coverage to Surge employees who were leased to Tech-Built, a
    corporation involved in the construction industry, or to Tech-Built
    itself.   Id. at 1009.   In the section titled, "Who Is Insured," the
    policy stated: "You are insured if you are an employer named in
    Item 1 of the Information Page."        Id.   The court "acknowledge[d]
    that Item 1 of the information page itself reference[d] Surge 'etal
    [sic]' and the '[o]ther workplaces' subsection reference[d] the
    endorsement entitled 'Additional Named Insured and/or Locations.'"
    Id. (third and fourth alterations in original). The endorsement in
    turn listed over 150 companies, including Tech-Built.         Id.   The
    court noted, however, that "[o]ther language within the policy
    itself . . . reveal[ed] that the contracting parties anticipated
    that a single employer was named as the insured, namely Surge, and
    that coverage for that employer extended to all 'workplaces' of
    that employer listed in the endorsement . . . ."        Id. at 1009-10.
    In examining the entire policy, the court found a lack of clarity
    as to what the parties intended.     See id.
    The New Hampshire Supreme Court used Surge's leasing
    agreement with Tech-Built to "inform[]" its understanding of the
    Virginia Surety Policy.     Id. at 1011.      The court concluded that
    Surge's leasing agreement with Tech-Built "memorialized" Surge's
    "clear intent . . . to secure workers' compensation coverage only
    for its leased employees."      Id. at 1010.      The court recognized
    that, "in general, we do not look beyond the four corners of the
    -12-
    insurance contract to discern the intent of the contracting parties
    regarding the scope and extent of insurance coverage."              Id.    But,
    the court explained, "we will not ignore that [objective extrinsic]
    evidence in favor of dogmatic adherence to insurance maxims."                  Id.
    In this case, the Stratford Policy provides primary
    insurance coverage to three categories of "autos," including, as is
    relevant here, "hired 'autos.'"           "Hired 'autos'" are defined as
    "those 'autos' [DAM] lease[s], hire[s], rent[s] or borrow[s]." The
    Stratford Policy states that "[t]his Coverage Form's Liability
    Coverage is primary for any covered 'auto' while hired or borrowed
    by   [DAM]    and   used    exclusively     in   [DAM's]   business       as     a
    'trucker' . . . ."
    To repeat, DAM leased or rented two types of vehicles in
    the course of its business.       First, DAM rented small vans, similar
    to those it owned, for approximately $5,000 per year to deliver
    small packages during busy periods.              Second, DAM leased large
    tractors     from   Ryder   for   approximately    $240,000   per    year       to
    transport palletized freight. There is no dispute that the parties
    intended the Stratford Policy to provide primary coverage for the
    small vans DAM owned and rented.            We must determine whether the
    parties intended the policy's primary coverage to also extend to
    the large tractors leased from Ryder.
    If we were to confine our consideration to only the
    definition of "hired 'autos,'" primary coverage would apply to the
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    large tractors in the same way as the small vans.2         Since DAM
    leased the large tractors from Ryder, they would qualify as "hired
    'autos,'" for which coverage would be primary. Indeed, Stratford's
    Senior Litigation Specialist, Sandra McFarlane, conceded that the
    definition of "hired 'autos'" would include the Ryder tractor, but
    maintained that this was not the parties' intent.     She explained,
    "I think the problem was that there was an exposure out there that
    wasn't intended to be covered by the policy."
    The district court noted that, "read in isolation, the
    policy's coverage provision and its definition of 'hired auto'
    would appear to provide primary coverage for the tractor that
    Girginoff was driving." Old Republic, 
    2014 WL 309390
    , at *5. But,
    the district court found, "[t]he rest of the policy reveals" a
    contrary intent.    
    Id.
       We agree.
    It is a cardinal principle of contract interpretation
    that we must read the policy "as a whole."     See Great Am. Dining,
    62 A.3d at 848.    For this reason, our analysis cannot begin and end
    with the definition of "hired 'autos.'"      Here, other provisions
    2
    We need not dwell on Stratford's argument that the trailer
    would not be covered even if the tractor was.         "Specifically
    described 'autos'" are defined as "those 'autos' described in Item
    Three of the Declarations for which a premium charge is shown (and
    for Liability Coverage any 'trailers' you don't own while attached
    to any power unit described in Item Three)." The definition of
    "auto" includes trailers.     Item Three includes "any non-owned
    trailer while attached to a covered auto," with a liability premium
    of $254. The trailer is therefore an "'auto' described in Item
    Three of the Declarations for which a premium charge is shown" so
    long as the tractor to which it is attached is a covered auto.
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    within the policy itself reveal a more tailored intent to insure
    only the smaller side of DAM's business, which conducted small
    package delivery in small vans and trucks.            Highlighting this side
    of DAM's business, the Stratford Policy describes DAM's business as
    the delivery of office supplies and small household appliances.
    There is no mention in the policy of the additional portion of the
    business concerned with the transportation of palletized freight.
    DAM   listed   two   of   its   small     vans   in    the   itemization    of
    "specifically described 'autos,'" and provided an estimate for the
    cost of "hired 'autos'" that is consistent with similar small vans.
    DAM did not describe the portion of the business concerning
    palletized freight involving Ryder tractors.
    We find the estimated cost of hire for "hired 'autos,'"
    listed in the Stratford Policy, to be particularly instructive as
    to the parties' intent.         The estimated cost of hire is a term
    within the four corners of the policy and cannot be ignored.               For
    "hired 'autos,'" DAM estimated the yearly cost of hire to be
    $5,000.   The parties agree that the cost of hire for small vans
    similar to those DAM owned was $5,000 per year, and that the cost
    of hire for the Ryder tractors was approximately $240,000 per year.
    The $5,000 estimate is not binding on the parties, but it is
    informative of their intent when the policy was created.            Although
    the concurrence posits that an insured might lowball his estimate
    to reduce his premium, the dramatic $235,000 difference between the
    -15-
    estimate listed in the contract and the yearly cost to hire the
    Ryder tractors in this case belies any suggestion that Stratford
    and DAM intended their policy to provide primary coverage for those
    tractors.3 This incredibly low amount evidences that DAM attempted
    to insure its own vans as "specifically described 'autos'" and
    similar hired vans as "hired 'autos,'" and not the Ryder tractors.
    Further, contract interpretation rules require consideration of the
    cost estimate within the four corners of the policy as indicative
    of the intent as to what was being covered.
    As   in   Tech-Built,   DAM's   lease   agreement    with   Ryder
    provides objective extrinsic evidence of the intent animating the
    Stratford Policy as to the scope of coverage.            There, the New
    Hampshire Supreme Court used an extrinsic lease agreement as a
    means to obtain clarity as to whom coverage applied.           See 898 A.2d
    at 1010.    Tech-Built     made it clear that inconsistent policy
    language must be viewed in terms of the background, circumstances,
    and context in which the policy was negotiated.        See id.    Here, we
    use a similar extrinsic lease agreement to obtain clarity as to
    3
    In addition, there is no indication that DAM "lowballed"
    its estimate in the hopes of reducing its premium for an intended
    coverage.   As noted at oral argument, "[t]here has been no
    suggestion whatsoever that DAM misrepresented its cost of hire.
    The question rather was whether, when DAM represented its cost of
    hire, it was referring to the vans, which is what they say they
    were referring to, or whether they were referring to something
    else." Indeed, when Stratford subsequently learned of the Ryder
    tractors, it chose not to retroactively increase the premium, but
    to simply include the tractors in the negotiations for renewal
    going forward.
    -16-
    which vehicles coverage applied given the potential inconsistency
    within the Stratford Policy.         DAM and Ryder's lease agreement
    specified that Ryder was the "party responsible for liability
    insurance" for the tractors. DAM agreed that "Ryder shall have the
    sole right to conduct accident investigations and administer claims
    handling and settlements and [DAM] shall adhere to and accept
    Ryder's conclusions and decisions."
    The district court found that this agreement between DAM
    and Ryder was "entirely consistent" with the portions of the
    Stratford Policy that suggest that DAM intended to insure only its
    small vans through Stratford. See Old Republic, 
    2014 WL 309390
    , at
    *5.    "When providing information on the scope of the coverage it
    needed for hired autos," the district court explained, "DAM knew
    that Ryder was responsible for liability insurance on the tractors
    it leased to DAM, and DAM said nothing to Stratford about those
    tractors."    Id. at *6.   "In sum, it cannot have been the intent of
    the parties for Stratford to provide primary coverage on a risk
    that DAM never sought to insure and that . . . Stratford knew
    nothing about when it issued DAM its policy and set the premium for
    it."   Id.
    Considering   the   entirety   of   the   Stratford   Policy,
    including the pricing estimate, background, and circumstances, as
    informed by the lease agreement between DAM and Ryder, we agree
    with the district court that the Stratford Policy was never
    -17-
    intended to provide primary insurance for the Ryder tractors.
    Neither Old Republic nor the concurrence suggests that the policy
    or the extrinsic evidence supports the proposition that the parties
    did intend to provide primary coverage for the tractors; rather,
    they argue that the parties should be restricted to the one
    provision in the policy defining "hired 'autos'" despite any
    evidence of a contrary intent.     The district court committed no
    legal error in its analysis of the Stratford Policy and DAM's lease
    with Ryder.   Even viewing the facts in the light most favorable to
    Old Republic, the record demonstrates that DAM and Stratford did
    not intend the Stratford Policy to provide primary insurance for
    the Ryder tractors, which Ryder was already insuring through Old
    Republic as per its agreement with DAM.    See Tech-Built, 898 A.2d
    at 1010 (finding "no genuine dispute of material fact concerning
    the clear intent memorialized in the lease agreement").   We repeat
    what the unanimous court in Tech-Built stated: under New Hampshire
    insurance law, "where the intent of the contracting parties can be
    conclusively resolved by objective extrinsic evidence, . . . we
    will not ignore that evidence in favor of dogmatic adherence to
    insurance maxims."   Id.   So too, here.
    Because we conclude that Stratford's policy with DAM
    never provided co-primary coverage for the Ryder tractor, we,
    unlike the concurrence, need not consider whether New Hampshire law
    would conclude that Stratford and DAM's later post-loss General
    -18-
    Change Endorsement is a valid contract modification, which Old
    Republic disputes.       We do note that Stratford has now committed
    itself to provide excess coverage as to the Ryder tractor both in
    its endorsement and independently in its representations to the
    district court and this court.
    IV.    Stratford's Duty to Defend
    The district court stated that, in New Hampshire, "'the
    duty of an insurer to defend is the same whether its potential
    liability is either as a primary or as an excess carrier.'"         Old
    Republic, 
    2014 WL 309390
    , at *7 (quoting Universal Underwriters
    Ins. Co. v. Allstate Ins. Co., 
    592 A.2d 515
    , 517 (N.H. 1991)).
    "[B]ecause Stratford concedes that its policy provides excess
    coverage," the district court concluded, "it is obligated to share
    equally in the costs of defending its insureds in the underlying
    action."   
    Id.
        Stratford appeals and argues that, as an excess
    insurer, its duty to defend should be excess to that of the primary
    insurer.
    In 2011, the New Hampshire Supreme Court noted that it
    "ha[s] never addressed the precise issue of allocation of defense
    costs   between    a   primary   insurer   and   an   excess   insurer."
    Progressive N. Ins. Co. v. Argonaut Ins. Co., 
    20 A.3d 977
    , 983
    (N.H. 2011).     In that case, the court declined to review a trial
    court's requirement that an excess insurer pay its pro rata share
    of defense costs since the issue was not properly raised in the
    -19-
    notice of appeal.    
    Id. at 980, 983
    .         The court was also unwilling
    to hold that the trial court had committed plain error given the
    unsettled nature of the issue.           
    Id. at 983
    .
    A   previous    New    Hampshire      Supreme     Court   decision,
    Universal Underwriters, had touched on the same issue briefly.                 In
    Universal Underwriters, the New Hampshire Supreme Court analyzed
    the coverage provided by two insurance companies, Universal and
    Allstate, for a leased vehicle when both purported to be excess
    carriers. Universal Underwriters, 592 A.2d at 516. The court held
    that Universal provided primary coverage up to $25,000, and that
    both Universal and Allstate provided co-primary coverage past that
    amount.    Id. at 517.   On the duty to indemnify, the court held that
    "the cost of settlement in this case in excess of $25,000 is to be
    shared pro rata by Universal and Allstate."             Id.      On the duty to
    defend, however, the court split the total defense costs equally
    between the two carriers.          Id. at 517-18.       Rejecting the trial
    court's pro rata division, the New Hampshire Supreme Court stated
    that "the duty of an insurer to defend is the same whether its
    potential    liability     is   either   as   a   primary   or   as   an   excess
    carrier."    Id. at 517.
    The district court interpreted Universal Underwriters to
    require primary and excess carriers to equally share the costs of
    defense.    See Old Republic, 
    2014 WL 309390
    , at *7.               The majority
    rule is that "the excess liability carrier is not obligated to
    -20-
    participate in the defense until the primary policy limits are
    exhausted." 14 Couch on Insurance § 200:41 (3d ed. 2014); see also
    id. § 200:38; Schneider Nat'l Transp. v. Ford Motor Co., 
    280 F.3d 532
    , 538 (5th Cir. 2002). The district court's contrary conclusion
    follows from the statement of the New Hampshire Supreme Court in
    Universal Underwriters, and the court's holding that the two
    insurers must split the defense costs equally despite the fact that
    only Universal provided primary coverage for the first $25,000.
    See Universal Underwriters, 592 A.2d at 517-18.
    Stratford nevertheless argues that Universal Underwriters
    cannot be taken at its word.    Stratford stresses that it is not
    asking this court to "overrule" the New Hampshire Supreme Court on
    an issue of New Hampshire state law.    Instead, Stratford claims
    that "[i]t is . . . not at all clear that the Supreme Court of New
    Hampshire actually held that excess insurers must share defense
    costs equally with primary insurers" given the context within which
    Universal Underwriters was decided and the citations on which it
    relies.
    First, Stratford argues that the New Hampshire Supreme
    Court would have explained its dramatic shift away from the general
    rule if this was actually its intent.       Critically, a federal
    district court decision interpreting New Hampshire law two years
    before Universal Underwriters appears to follow the general rule.
    See Town of Stoddard v. N. Sec. Ins. Co., 
    718 F. Supp. 1062
    , 1065-
    -21-
    66 (D.N.H. 1989) (Devine, C.J.).   In that case, the district court
    differentiated between the primary and excess insurer, and held
    that the primary insurer alone was obligated to reimburse the
    insured for the costs of the defense.   See 
    id. at 1066
    .   Stratford
    concedes that "[i]t is certainly possible . . . that Universal
    Underwriters reflects the announcement by the Supreme Court of New
    Hampshire of a new position on the issue and a repudiation of the
    approach reflected in Town of Stoddard."      But, "[t]here is no
    indication . . . in Universal Underwriters itself that the court
    was introducing a new rule of law . . . ."
    Second, Stratford argues that the two cases cited by the
    New Hampshire Supreme Court in Universal Underwriters do not
    support reading the decision as adopting a new rule.   In Universal
    Underwriters, the court cited a decision from the Georgia Court of
    Appeals, Zurich Insurance Co. v. New Amsterdam Casualty Co., 
    160 S.E.2d 603
    , 605 (Ga. Ct. App. 1968); an earlier decision from the
    New Hampshire Supreme Court, Liberty Mutual Insurance Co. v. Home
    Insurance Indemnity Co., 
    351 A.2d 891
    , 895 (N.H. 1976); and a
    treatise, 14 Couch on Insurance § 51:148 (2d ed. 1982).     See 592
    A.2d at 517.
    In Zurich Insurance, the Georgia Court of Appeals stated
    that one insurer, Zurich, "had a potential liability, either as
    primary or excess carrier, in either of which cases its duty to
    -22-
    defend was the same."   
    160 S.E.2d at 605
    .4   Zurich had defended the
    insured and paid the judgment when the other carrier refused.     
    Id. at 604
    .   Ultimately vindicated as the excess carrier, the Georgia
    Court of Appeals held that Zurich had a duty to defend its insured
    even though it was excess when the primary refused, but that it had
    a right to recover from the primary insurer "in the same manner
    that its insured would have had."      
    Id. at 606
    .   A later case in
    Georgia cites Zurich Insurance for the uncontroversial position
    that an excess insurer "ha[s] a duty to defend the claims against
    its insured after the primary insurer denied coverage and refused
    to defend."   Motors Ins. Co. v. Auto-Owners Ins. Co., 
    555 S.E.2d 37
    , 39 (Ga. Ct. App. 2001).
    In Liberty Mutual, the New Hampshire Supreme Court held
    that two insurers provided primary coverage for an accident to
    varying limits.   351 A.2d at 895.     On a motion for rehearing, the
    court clarified: "As both policies afford primary coverage, Liberty
    Mutual and Home Insurance have a joint obligation to defend [the
    insured] and to share equally the costs of defense."    Id.   The case
    has no bearing on the respective duties to defend when one insurer
    is primary and the other excess.
    4
    Other Georgia cases that held that, "whether an insurer is
    'a primary or excess carrier, its obligation to defend is the same
    under the contract,'" are limited to "cases involv[ing] policies
    with excess clauses or coverage and defense agreements which are
    not expressly made excess." Cont'l Cas. Co. v. Synalloy Corp., 
    667 F. Supp. 1523
    , 1540 n.9 (S.D. Ga. 1983) (citations omitted).
    -23-
    The    district       court's    reading    of   the     statement     in
    Universal Underwriters draws the most support from the second
    edition   of    Couch's     treatise,       published   in   1982.        The   cited
    provision of the treatise explained:
    The duty to defend is absolute, even if the
    policy turns out to be excess insurance. For
    example, where a truck driver's car insurer
    and truck owner's insurer both covered the
    accident and each policy contained the defense
    provision, each had the duty to defend the
    driver against [the] injured party's claim,
    even if the car insurer's coverage was excess.
    14 Couch on Insurance § 51:148 (2d ed. 1982) (collecting cases,
    including Zurich Insurance).          In Hawaii, for example, "[when] both
    primary and excess insurer[s] shared a duty to defend the action,
    each insurer was responsible for half of the costs and expenses of
    defending      regardless    of    the   pro    rata    division     of   principal
    liability."       Id. (citing Indus. Indem. Co. v. Aetna Cas. & Sur.
    Co., 
    465 F.2d 934
     (9th Cir. 1972)).               Elsewhere in the treatise,
    however, the general rule is stated as follows: "[w]here the
    insured maintains both primary and excess policies, . . . an excess
    liability insurer is not obligated to participate in the defense
    until the primary policy limits are exhausted." 
    Id.
     § 51:36.
    The modern version of Couch's treatise on insurance law
    reaffirms that, "[a]s a general rule, a true-excess insurer is not
    obligated to defend its insured until all primary insurance is
    exhausted or the primary insurer has tendered its policy limits."
    14 Couch on Insurance § 200:38 (3d ed. 2014). "However," the
    -24-
    treatise continues, "a minority of jurisdictions have held an
    excess carrier's duty to defend may be triggered if there is a
    possibility that excess coverage may be reached."          Id.    The
    treatise cites Universal Underwriters for the proposition that
    "[o]nce an excess carrier's obligation to defend arises, the duty
    to defend is the same as the duty of a primary insurer."   Id.   This
    reading of Universal Underwriters is plausible if we assume that
    the low threshold of $25,000 triggered both carriers' duty to
    defend and the New Hampshire Supreme Court then required them to
    split defense costs equally. It is still unclear how this rule, if
    New Hampshire has adopted this minority position, would apply to
    the facts of our case when the primary carrier had a coverage limit
    of $1,000,000 and the complaint does not estimate the damages
    sought.
    The New Hampshire Supreme Court has not provided clarity
    on its holding in Universal Underwriters regarding an excess
    insurer's duty to defend since that opinion was issued.5         When
    5
    The subsequent citations to Universal Underwriters by the
    New Hampshire Supreme Court have not focused on this part of the
    holding. See Peerless Ins. v. Vt. Mut. Ins. Co., 
    849 A.2d 100
    , 103
    (N.H. 2004) (requiring two insurers to share defense costs equally
    after finding both excess provisions mutually repugnant);
    Progressive N. Ins. Co. v. Enter. Rent-A-Car Co. of Bos., Inc., 
    821 A.2d 991
    , 993-94 (N.H. 2003) (characterizing the decision as
    "interpret[ing] [] conflicting provisions in the parties' insurance
    policies"); Allstate Ins. Co. v. Armstrong, 
    738 A.2d 1280
    , 1282
    (N.H. 1999) (quoting language concerning parties' attempts to limit
    the coverage required by New Hampshire's Financial Responsibility
    Law); Calabraro v. Metro. Prop. & Cas. Ins. Co., 
    702 A.2d 310
    , 313
    (N.H. 1997) (characterizing the decision as one which "discuss[ed]
    -25-
    denying Stratford's motion to alter or amend its decision, the
    district court stated that, "if presented with the precise facts of
    this case, the New Hampshire Supreme Court might be inclined to
    revisit   Universal   Underwriters,          and    reassess      that   opinion's
    reliance upon Zurich Insurance . . . ."               The district court felt
    "obligated"   to   stand   by   its   prior        ruling   "given   the    law   as
    currently enunciated by the New Hampshire Supreme Court."                         On
    appeal,   Stratford   invites    certification         to   the    New   Hampshire
    Supreme Court, which Old Republic does not oppose.
    We are permitted to certify questions of law to the New
    Hampshire Supreme Court when questions of New Hampshire law are
    determinative of the case, and there is no controlling precedent
    from the New Hampshire Supreme Court.               N.H. Sup. Ct. R. 34.          In
    Progressive, the New Hampshire Supreme Court explicitly stated that
    it had never addressed the issue that we now find before us and
    that it could not say that the state law on the issue is settled.
    See 
    20 A.3d at 983
    .         We conclude that certification is the
    appropriate route in this case given the important, and unsettled,
    question of New Hampshire law.
    We certify the following questions to the New Hampshire
    Supreme Court:
    two   policies     that    contained         conflicting       excess      coverage
    provisions").
    -26-
    1) Under New Hampshire law, when is an excess
    insurer's duty to defend triggered? Does New
    Hampshire follow the general rule that the
    excess insurer's duty to defend is triggered
    only when the primary insurer's coverage is
    exhausted? If not, what rule as to allocation
    of defense costs and timing of payment does
    New Hampshire follow?
    V.     Conclusion
    We   conclude    that     DAM   and    Stratford   never   intended
    Stratford to provide co-primary coverage to the tractor-trailer
    involved in the automobile accident.            This leaves Old Republic as
    the primary insurer, and Stratford as the excess insurer.                 We
    certify to the New Hampshire Supreme Court the attendant question
    of Stratford's duty to defend under New Hampshire law in light of
    Universal Underwriters.
    The clerk of this court is instructed to transmit to the
    New Hampshire Supreme Court, under the official seal of this court,
    a copy of the certified questions and our opinion in this case,
    along   with   copies   of    the    parties'      briefs,   appendix,   and
    supplemental filings under Rule 28(j) of the Federal Rules of
    Appellate Procedure.      We retain jurisdiction over this appeal.
    So ordered.
    - Concurring Opinion Follows -
    -27-
    BARRON, Circuit Judge, concurring in part and concurring
    in the judgment.   I fully join the decision to certify the duty-to-
    defend question to the New Hampshire Supreme Court.                 I do not
    agree, however, that the Stratford policy, as originally issued,
    provided no coverage for the Ryder tractor. In my view, the
    original policy did provide such coverage, but the retroactive
    endorsement then made such coverage excess instead of primary. And
    thus I end up where the majority does, but by a different route.
    As the majority notes, Stratford's Senior Litigation
    Specialist,   on   reviewing   the    language   of   Stratford's    policy,
    concluded "there was an exposure out there that wasn't intended to
    be covered by the policy."           Maj. Op. at 14.      But Stratford's
    response was not to argue the parties' intent trumped the policy's
    text nor to suggest the text was less than clear.                   Instead,
    Stratford reached an agreement with its insured to change the
    policy's text via a retroactive endorsement that expressly limited
    that otherwise concerning exposure.
    Thus, it is not surprising that in the District Court,
    even Stratford -- following its Senior Litigation Specialist's lead
    -- did not dispute that the original policy covered the Ryder
    tractor.   Of course, now that the District Court has bypassed the
    parties' arguments about how best to deal with the exposure and, of
    its own accord, ruled such exposure never existed, Stratford
    -28-
    agrees.   But I believe Stratford had it right the first time.                 It
    did provide such coverage, even if it did so due to poor drafting.
    No matter, though.         Stratford worked out a deal.            That
    deal limited the exposure by making coverage of tractors hired from
    Ryder excess rather than primary.            And thus, the parties to the
    Stratford policy reached a sensible and practicable result.                     I
    think we should bless it rather than read the policy in a way that,
    I worry, may suggest to some that insureds should have less
    confidence in the text of their policies than I read precedent to
    show they should.
    I.
    The majority accepts, as it must, that the most directly
    pertinent portion of the policy -- the definition of "hired 'auto'"
    -- indisputably includes the Ryder tractors.               Maj. Op. at 13-14.
    That definition includes any "land motor vehicle, 'trailer,' or
    semitrailer    designed   for    travel      on   public    roads"     that    DAM
    "lease[s], hire[s], rent[s], or borrow[s]" from third parties. And
    the   policy   then   states   that    it    broadly   covers   "all    sums   an
    'insured' legally must pay as damages because of 'bodily injury' or
    'property damage' to which this insurance applies, caused by an
    'accident' and resulting from the ownership, maintenance or use of
    a covered 'auto'" -- including, for this policy, a "hired 'auto.'"
    The language could not be clearer.
    -29-
    Nonetheless, I can understand the temptation to look
    beyond the policy's plain text.    It does seem, from what the law
    calls extrinsic evidence (which is to say, evidence not found
    within the language of the policy itself), that neither party
    thought, at the time of drafting, about the kind of tractor at
    issue in this case.   Stratford apparently did not know about this
    part of the insured's business, and the insured apparently did not
    think Stratford was the source of coverage for these tractors.
    But the majority acknowledges -- as it must -- that
    extrinsic evidence becomes relevant to limit exposure only if the
    text is actually ambiguous.   White v. Vt. Mut. Ins. Co., -- A.3d --
    , 
    2014 WL 6533298
    , at *3 (N.H. 2014) ("[A]bsent ambiguity, our
    search for the parties' intent is limited to the words of the
    policy." (quoting Bates v. Phoenix Mut. Fire Ins. Co., 
    943 A.2d 750
    , 753 (N.H. 2008))). And that rule reflects the fact that while
    the intent of the parties controls, that intent is found first and
    foremost in the words of the policy -- words that, when clear, are
    determinative.   See 
    id.
       I do not read the majority's key case,
    Tech-Built, to say otherwise. See Tech-Built 153, Inc. v. Va. Sur.
    Co., 
    898 A.2d 1007
     (N.H. 2006).   There, the court first found the
    text of the policy at issue ambiguous and only then turned to
    extrinsic evidence to limit the reach of the coverage.       Id. at
    1009-10.
    -30-
    Nor does Tech-Built, as I read it, support finding
    ambiguity here.   In that case, Tech-Built, a construction company,
    was a client of an employee leasing company called Surge.    Id. at
    1008.    Tech-Built claimed the insurance policy that covered Surge
    actually also covered Surge's clients.     Id. at 1009.   Tech-Built
    based that surprising contention on the following policy language:
    Surge's policy listed the "insured" as Surge "etal [sic]."      Id.
    (alteration in original).     The policy then listed both Surge's
    address and its "other workplaces," which Surge described by
    listing the various companies (Tech-Built included among them) to
    which it had leased employees.    Id.   From this thin textual basis
    -- an "interplay," the court charitably called it -- Tech-Built
    claimed Surge's carrier had plainly agreed to supply insurance
    coverage to 150 or so of Surge's clients, id., a most implausible
    claim.    The New Hampshire Supreme Court had no trouble rejecting
    it. It simply noted that "[o]ther language" in the policy would be
    rendered "nonsensical" if Tech-Built's interpretation was right.
    Id. at 1009-10.
    That case is thus very far from this one. The definition
    of "hired 'auto,'" unlike the definition of "insured" in Tech-
    Built, is crystal clear.     And while the majority is quite right
    that the policy text must be considered as a whole, giving this
    "hired 'auto'" language its plain meaning does not make nonsense of
    other parts of the policy.     In fact, a plain reading of "hired
    -31-
    'autos'" does not even lead to an "internally inconsistent policy."
    Maj. Op. at 11 (citing Tech-Built, 898 A.2d at 1010).                 A review of
    the three other aspects of the policy the majority relies on in
    finding ambiguity reveals why.
    First, the majority notes the policy describes DAM's
    business as consisting of the delivery of office supplies and
    appliances, and makes no reference to any business involving the
    transport of "palletized freight."             Maj. Op. at 15.              If the
    majority's point is that the description of DAM's business is not
    consistent with a policy term that plainly covers leased tractors,
    I cannot agree.      After all, such tractors could readily be used to
    deliver office supplies and appliances.
    More fundamentally, Stratford's policy does not contain
    explicit language tying coverage to the description of DAM's
    business.      And the general rule (which, so far as I can tell, New
    Hampshire does not reject) is that "business descriptions" do not
    limit coverage to the precise type of business described.                     See,
    e.g., Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 
    277 F.3d 232
    ,
    239    (2d   Cir.   2002)   (rejecting   the   argument    that       a   policy's
    description of the insured's business as "Carpentry" served to
    limit the coverage "to carpentry operations," because "[t]he Policy
    simply fails to provide that the classifications define the covered
    risks"); GRE Ins. Grp. v. Metro. Bos. Hous. P'ship, 
    61 F.3d 79
    , 82
    (1st    Cir.    1995)   (rejecting   the    argument      that    a       "business
    -32-
    description" of "office" meant "only liability arising from [the
    insured]'s office operations was covered" because while the fact
    that the type of business was "office" rather than "skating rink"
    was "obviously relevant to coverage," the description "d[id] not
    show a clear understanding to restrict coverage to liability
    arising out of [insured]'s office only").
    That rule makes sense.          An insurer may require the
    description to inform the premium the insurer sets.             But if the
    insurer wants to strictly limit coverage to activities within that
    description, it should explicitly say so.         Mount Vernon Fire Ins.,
    
    277 F.3d at 239
    ; see also, e.g., Wickramasekra v. Associated Int'l
    Ins. Co., 
    890 So.2d 569
    , 574 (La. Ct. App. 2003) (construing a
    policy with an endorsement that explicitly restricted coverage to
    the type of business shown on the declaration); Sun Indem. Co. v.
    Lovell, 
    6 Conn. Supp. 337
     (Conn. C.P. 1938) (same).
    Second,      the   majority     notes     the   policy    covers
    "specifically described 'autos'"        and that the two "specifically
    described 'autos'" listed in the policy are smaller vans and not
    Ryder tractors.   Maj. Op. at 15.    But the policy provided coverage
    for two separate categories of "autos":       "hired 'autos'" that, by
    terms, DAM does not own, and "specifically described 'autos'" that,
    by terms, must be described on a separate schedule.         That schedule
    in turn refers to the listed vehicles as "covered autos you own."
    The   leased   Ryder   tractors,    therefore,     were   not   listed   as
    -33-
    "specifically described 'autos'" for the simple reason that DAM did
    not own them. As vehicles DAM only leased, these tractors would be
    covered as "hired 'autos.'"              If the majority's point is that an
    objective reader would have to assume that the rented vehicles
    necessarily     would    be     similar    in    type    to   the   owned     vehicles
    specially listed on the schedule, I do not see why.                         Companies
    might rent vehicles of a different type precisely because the ones
    they own are not adequate to every task.
    Finally,      the    majority        notes    the    policy     lists    an
    "estimated cost of hire" for all hired autos at $5,000 per year.
    Maj. Op. at 15.         That number is small.            It does seem fit for a
    modest business using vans rather than for a large one using
    tractors.      But the text of the policy contemplates insureds may
    lowball their estimates -- presumably to reduce their premiums.
    That is why -- as the majority acknowledges, Maj. Op. at 15 -- the
    policy expressly provides that estimates supplied by the insured on
    this portion of the policy are not binding.                     In fact, the policy
    further provides that Stratford may audit the insured's actual
    hired-auto expenditures and retroactively increase the premium
    should the estimate prove too low.               In other words, even though no
    intentional low-balling occurred here, Stratford's policy made
    clear   that   an   insured's      low    estimate       is   not   binding    in   the
    insured's favor.        I thus do not believe we should rely on the
    -34-
    estimate to create an ambiguity in what is otherwise clear and
    plainly binding policy language -- the "hired 'auto'" definition.
    For these reasons, I would hold the policy language is
    clear.   That being the case, it seems to me that New Hampshire law
    requires us to give effect to the plain meaning of the "hired
    'autos'" definition.   White, 
    2014 WL 6533298
    , at *3; Bates, 
    943 A.2d at 753
    .   And thus we may not limit the coverage by looking
    about for outside evidence of the parties' understandings (here,
    the contract between DAM and Ryder).       But that does not mean
    Stratford is without recourse, as I will now explain.
    II.
    Faced with an exposure it wished to limit, Stratford
    reached out to DAM to provide excess coverage, rather than primary
    coverage, for the leased Ryder tractors.      I would give the deal
    Stratford and DAM struck full effect.
    True, as Old Republic points out, a party's affirmation
    of a preexisting duty is not generally adequate consideration for
    a new contract. Melotte v. Tucci, 
    66 N.E.2d 357
    , 358 (Mass. 1946).
    But relinquishing a contestable claim is. Pitkin v. Noyes, 
    48 N.H. 294
    , 304 (1869); see also Mathewson Corp. v. Allied Marine Indus.,
    Inc., 
    827 F.2d 850
    , 856 (1st Cir. 1987) (Massachusetts law).      I
    conclude Stratford's pre-existing duty to provide coverage was
    clear.   But I do not believe a contrary claim would be frivolous.
    And, of course, neither would the majority.    Thus, Stratford gave
    -35-
    up something real.       It foreclosed its right to argue it could deny
    coverage altogether.         See Chisholm v. Ultima Nashua Indus. Corp.,
    
    834 A.2d 221
    , 225 (N.H. 2003) ("Consideration is present if there
    is   either    a   benefit    to   the   promisor      or    a   detriment    to    the
    promisee."); see also Pitkin, 48 N.H. at 304 ("[C]ompromise of
    doubtful claims" is consideration unless the claims are "utterly
    without foundation and known to be so"); Mathewson Corp., 
    827 F.2d at 856
     (finding consideration if the surrendered claim is not
    "'vexatious or frivolous'" (quoting Blount v. Dillaway, 
    85 N.E. 477
    , 479 (Mass. 1908)).
    Old Republic also argues the endorsement prejudiced Old
    Republic without Old Republic's consent.                     But no term in the
    Stratford policy protected Old Republic from such modification.
    See Restatement (Second) of Contracts § 311(2) (absent a term in
    the contract forbidding modification of a duty to a third party
    "the promisor and promisee retain power to discharge or modify the
    duty   by   subsequent       agreement");       see   also   Brooks   v.     Trs.    of
    Dartmouth Coll., 
    20 A.3d 890
    , 900 (N.H. 2011) (following the Second
    Restatement's description of third-party beneficiary rules --
    though not mentioning this particular one -- as a matter of New
    Hampshire law).
    Nor does New Hampshire law make Old Republic a vested
    third-party beneficiary entitled to such protection in the absence
    of such a policy term.             The original Stratford policy did not
    -36-
    "satisfy some obligation owed by the promisee [DAM] to the third
    party [Old Republic]," nor was that policy "so expressed as to give
    the promisor [Stratford] reason to know that a benefit to a third
    party [Old Republic] is contemplated by the promisee [DAM] as one
    of the motivating causes of his making the contract."                 Brooks, 20
    A.3d at 900.    In fact, Stratford did not have reason to know about
    the Old Republic policy, much less to know DAM contemplated Old
    Republic would benefit from the Stratford policy.
    That    leaves    only    Old   Republic's    argument       that    the
    endorsement     violates     a   public      policy     against       "post-claim
    underwriting."      The     out-of-New     Hampshire    cases    on    which    Old
    Republic   exclusively      relies   (from    Louisiana    and    Mississippi,
    respectively) are readily distinguished. They involved retroactive
    policy alterations that limited the coverage for an injured party
    (in two instances, for an injured party who was also a party to the
    policy).   See Mattox v. W. Fid. Ins. Co., 
    694 F. Supp. 210
    , 216
    (N.D. Miss. 1988); Washington v. Savoie, 
    634 So. 2d 1176
    , 1180 (La.
    1994); Lewis v. Equity Nat'l Life Ins. Co., 
    637 So. 2d 183
    , 188-89
    (Miss. 1994).     And those alterations were made without the insurer
    first obtaining the injured party's consent.              See Mattox, 
    694 F. Supp. at 216
    ; Washington, 
    634 So. 2d at 1180
    ; Lewis, 637 So. 2d at
    188-89.
    Nothing like that happened in this case.                    Here, the
    insured consented to the change at the time it was made.                       And,
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    further, the party injured by the insured will not suffer any
    reduction in total coverage in consequence of the change.     Thus,
    the only party "harmed" by this change is an insurer, Old Republic,
    who is not a party to the policy changed and whose harm is hard to
    divine.   Old Republic simply must provide coverage it thought it
    was on the hook for all along -- coverage Old Republic also must
    provide under the majority's approach.
    III.
    An insured should be able to rely on what the policy
    says.   New Hampshire agrees.   Like other states, it provides that
    even ambiguous policies "will be construed against the insurer,"
    Catholic Med. Ctr. v. Exec. Risk Indemn., Inc., 
    867 A.2d 453
    , 456
    (N.H. 2005), at least absent sufficient extrinsic evidence to show
    the parties intended otherwise. All the more reason, therefore, to
    be wary of resorting to extrinsic evidence too easily and then
    relying on it to defeat coverage for the insured.   As this case and
    others I refer to show, the non-binding aspects of a policy may not
    reflect the full extent of the coverage contained in a policy's
    binding passages.     But it is those binding passages that should
    control when clear.    And as I find them clear here, I also find
    them controlling.
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