USCA1 Opinion

[Not for Publication]

[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 94-1333
TOWN OF FARMINGTON, ET AL.,
Plaintiffs, Appellants,
v.
TUDOR INSURANCE COMPANY
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Torruella, Boudin, and Stahl
Circuit Judges.
______________
____________________

Martica S. Douglas with whom Douglas, Whiting, Denham & Rog

___________________
________________________________
was on brief for appellants.
Thomas V. Laprade with whom Philip M. Coffin III and Bla
__________________
______________________
___
Lambert, Coffin & Rudman were on brief for appellee.
________________________
____________________
September 2, 1994
____________________

Per curiam.
___________
Board of
of

Plaintiffs

Selectmen, and Steven S.

Farmington's sewage

Town of

Farmington, its

Moore, the superintendent

treatment plant

(collectively, "the

Town") filed this diversity action seeking a declaration that

Tudor Insurance Co. ("Tudor")
against

a suit

brought

by

has a duty to defend

Cottle Enterprises

the Town

("Cottle").

Cottle, the developer of a mobile home park frustrated by the

Town's refusal to allow

more than two sewer hook-ups

a year

at the new park, sued the Town in state court seeking damages
because

of

the

hook-up

limitation.

magistrate-judge

recommended that the district

court grant Tudor's motion for

summary judgment, reasoning that

within the

"inversion condemnation exclusion" clause

municipal liability
Tudor.

all of Cottle's claims fall

The

district court

entered judgment in
Because our
that Tudor is

insurance policy

issued to the

adopted the

favor of Tudor.

indeed "entitled

Town by

recommendation and

This appeal

independent analysis leads us

of the

followed.

to the conclusion

to judgment as

a matter

of

law," Fed. R. Civ. P. 56(c), we affirm.

I.
I.
The facts underlying this appeal are undisputed and
adequately laid out in the written opinion of the magistratejudge, see Town of Farmington v. Tudor Ins. Co., No. 93-0074___ __________________
______________
B (Jan.

31, 1994).

The parties agree that Maine law governs

-2-

the

interpretation

of the

Town's

language in dispute is the following:

insurance

policy.

The

[Tudor] shall not be liable

payment for Loss in connection
claim
made
against
the
allegedly, based upon or arising
. . inverse condemnation . . . .

to make
with any
Insureds
out of .

II.
II.
The

Town's first

argument on

magistrate-judge failed to
that the

follow Maine

phrase "inverse

disagree.

Maine

ambiguities

in

law

law in

that the

determining

condemnation" is unambiguous.
favors

insurance

expansive view of the

appeal is

the

insured

contracts

in

and

We

construing

encourages

insurer's duty to defend.

an

See, e.g.,
___ ____

Union Mut. Fire Ins. Co. v. Inhabitants of Topsham, 441 A.2d

_________________________
______________________
1012, 1015 (Me.

1982).

Nonetheless, even

of "inverse condemnation" are

the

phrase has

an

not firmly settled, we believe

unambiguous core

cause

of action against

value

of property

by the

exercise of the power of eminent

"confiscatory

taking"

meaning, namely,

a government agency

taken

Black's Law Dictionary

________________________

if the boundaries

740
claim

agency,

"[a]

to recover the

though no

formal

domain has been completed,"

(5th

ed.

(Count

1979).
of

Cottle's

its

complaint)

clearly fits within this category.

The
incorrectly
complaint are

Town next

suggests that

determined that
"based upon or

the

the magistrate-judge

other counts

aris[e] out

-3-

in

of . .

Cottle's
. inverse

condemnation."

Once

magistrate-judge,

we

again, we
think

that

Bonding & Casualty Co., 628

_______________________
the relevant
motion

its

Baywood Corp.
______________

sought a

developed by

Baywood.

performed faulty
system,

declaration that

damage, the

faulty

of Tudor's

Maine Bonding,

representing

buyers

work in designing

of

units

alleged that Baywood

the development's

sewer

and sought compensation for the cost of replacing or

to defend

coverage

Maine
_____

it against a lawsuit by a

The association

upgrading the system.

duty

v.

the

In that case, Baywood, a real

insurer, had a duty to defend

association

Like

1993), provides

analyzing the merits

for summary judgment.1

condominium

agree.

A.2d 1029 (Me.

framework for

estate developer,

cannot

Baywood

against an

insurance policy at issue

for claims
work.

While Maine Bonding would have

seeking

See id. at 1031.

___ ___

allegation of

had a

property

specifically excluded

the repair

or replacement

The court held that because

the association's claim was qualitatively different from

type of third

party claim

of

covered by the

policy at

the

issue,

Maine Bonding had

reaching this

no duty to

defend Baywood.

conclusion, the

court focused

See id.
___ ___

In

exclusively on

the type of harm alleged, attaching no importance to the fact

that the underlying

complaint charged that Baywood's

faulty

____________________
1.

We

note with

dismay

that, although

Baywood was cited

_______
prominently by the magistrate-judge, see Town of Farmington,
___ __________________
slip op. at 5 n.2, the Town chose not to mention, much less
distinguish, the case in its brief.
-44

work
id.
___

amounted to a violation
at

1030

(noting

that

of various legal

duties.

the

had

association

"fraudulent misrepresentation, breach

contract,

negligence,

negligent

See
___

alleged

of warranty, breach of

misrepresentation,

and

violation of the uniform fraudulent transfer act").

An analysis of the type of harm alleged in Cottle's
complaint leads to a similar conclusion in this case.

Cottle

seeks

compensation for the

land caused by the

complaint alleges
violative

of

duties, each

the value

Town's regulatory actions.

that the Town's
number

the

regulatory maneuvers

are

of constitutional

and

common

for the same

the "confiscatory taking"

words, Cottle has not alleged

count.

law

type of
In

other

any wrongful conduct that does

"arise[] out of . . . inverse condemnation."

the inverse

of his

Although

count seeks compensation

harm alleged in

not

diminution in

condemnation exclusion clause and

Therefore,

Maine law (as

expounded in Baywood) combine to preclude the Town's claim.

_______
III.
III.
For the foregoing reasons,
court's entry of summary judgment.
So ordered.
__________

-55

we affirm the

district