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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2005-230 MERCHANTS MUTUAL INSURANCE COMPANY v. LAIGHTON HOMES, LLC & a. Argued: January 19, 2006 Opinion Issued: May 16, 2006 Wiggin & Nourie, P.A., of Manchester (Gordon A. Rehnborg, Jr. and Mary Ann Dempsey on the brief, and Mr. Rehnborg orally), for the plaintiff. Gawryl & MacAllister, of Nashua (Jared O'Connor on the brief and orally), for defendant Laighton Homes, LLC. DUGGAN, J. The plaintiff, Merchants Mutual Insurance Company (Merchants Mutual), appeals an order of the Superior Court (McHugh, J.) granting summary judgment to defendant Laighton Homes, LLC (general contractor). The issue presented is whether a subcontractor's commercial general liability (CGL) policy provides coverage for indemnification to a general contractor for a claim brought by the subcontractor's employee against the general contractor. The superior court ruled that the general contractor's indemnity claims were covered by the subcontractor's policy. We reverse and remand.

The record reflects the following facts. The general contractor hired as a subcontractor defendant Daniel Hardy d/b/a Flawless Finishes (subcontractor). On September 30, 2003, an employee of the subcontractor was injured in the course of his employment at the general contractor's worksite. At the time the employee was injured, the subcontractor did not carry workers' compensation insurance. The employee was thus not precluded from bringing a common law action against the subcontractor. RSA 281-A:7, IV (1999). The employee subsequently brought a negligence action against both the subcontractor and the general contractor, and the employee also sued the general contractor for workers' compensation benefits. See RSA 281-A:18 (1999). The general contractor then brought cross-claims against the subcontractor. While it did not seek indemnification for the workers' compensation benefits owed to the employee, see RSA 281-A:18, it sought indemnity for its liability in the event that the employee prevails in his negligence action against the general contractor. Neither liability nor damages have been determined in the employee's underlying negligence action against the general contractor. At the time of the employee's injury, the subcontractor carried a CGL policy with Merchants Mutual. The subcontractor sought coverage of the general contractor's indemnity claims from Merchants Mutual under this policy. Merchants Mutual denied coverage. Merchants Mutual then brought a petition for declaratory judgment against the subcontractor and the general contractor, seeking a determination that it was not obligated to defend or indemnify the subcontractor against the general contractor's claims. The subcontractor failed to appear and was defaulted. Merchants Mutual and the general contractor filed crossmotions for summary judgment, agreeing that there were no facts in dispute. The trial court granted summary judgment to the general contractor. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. D'Amour v. Amica Mut. Ins. Co., 153 N.H. __, __, 891 A.2d 534, 536 (2006). The facts before us are uncontested and we review the trial court's application of the law to the facts de novo. Id. The interpretation of the language of an insurance policy, like any contract language, is ultimately an issue for the court to decide. Id. We construe the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading of the policy as a whole. Id. We enforce a policy provision that limits the insurance company's liability when the policy language is clear and unambiguous. See

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Deyette v. Liberty Mut. Ins. Co., 142 N.H. 560, 561 (1997). If more than one reasonable interpretation is possible, and an interpretation provides coverage, the policy contains an ambiguity and will be construed against the insurer. Catholic Med. Ctr. v. Executive Risk Indem., 151 N.H. 699, 701 (2005). The Merchants Mutual CGL policy provides: We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" . . . to which this insurance applies. . . . .... This insurance does not apply to: .... d. . . . Any obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law. e. . . . "Bodily injury" to: (1) An "employee" of the insured arising out of and in the course of: (a) Employment by the insured; or (b) Performing duties related to the conduct of the insured's business . . . . .... This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury. CGL policies typically include both a workers' compensation exclusion and an employer's liability exclusion. See 9A L.R. Russ & T.F. Segalla, Couch on Insurance,

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