Pennsylvania Miller v. Cheever ( 1995 )

USCA1 Opinion

          February 21, 1995     [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

                              _________________________

          No. 94-1825

                    PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY,
                                 Plaintiff, Appellee,

                                          v.

                                LEO H. CHEEVER, ETC.,
                                 Defendant, Appellee.

                              _________________________

                                   JOHN DOE, ETC.,
                                Intervenor, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
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                              _________________________

                                        Before

                          Selya and Boudin, Circuit Judges,
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                             and Carter,* District Judge.
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                              _________________________

               Geoffrey P. Lynch for intervenor-appellant.
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               Kevin  C. Devine, with whom  Devine & Nyquist  was on brief,
________________             ________________
          for plaintiff-appellee.

                              _________________________



                               _______________________

          _______________
          *Chief  Judge, U.S.  District Court  for the  District of  Maine,
          sitting by designation.














                    Per  Curiam.  In Burnham  v. Guardian Life  Ins. Co. of
Per  Curiam.
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          Am., 873 F.2d 486 (1st Cir. 1989) we wrote:
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                         This is  a hard case    hard not  in the
                    sense that it is  legally difficult or  tough
                    to crack,  but in the sense  that it requires
                    us, like the court below, to deny relief to a
                    [party]   for   whom  we   have  considerable
                    sympathy.  We do what we must, for "it is the
                    duty of  all courts of justice  to take care,
                    for the general  good of the community,  that
                    hard  cases do  not  make bad  law."   United
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                    States  v.  Clark,  96  U.S.  37,  49  (1877)
______      _____
                    (Harlan,   J.,   dissenting)  (quoting   Lord
                    Campbell in  East Indian Co. v.  Paul, 7 Moo.
_______________     ____
                    P.C.C. 111).

          Id. at 487.  These words are equally applicable here.
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                    We  have   read   the  record,   studied  the   briefs,

          entertained oral  argument, considered the  parties' contentions,

          and examined the New Hampshire precedents that necessarily direct

          our  disposition in this  diversity case.   When all  is said and

          done, we  do not believe  that we can  improve measurably on  the

          district court's lucid exposition  of the governing law,  or that

          any useful  purpose  would be  served  by issuing  a  full-length

          opinion that  merely recasts the  district court's thesis  in our

          own words.  Consequently, we summarily affirm the judgment below,

          see 1st Cir. R. 27.1, for substantially the reasons set  forth in
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          the  district court's  orders dated  May 12,  1994, and  June 27,

          1994, respectively.

                    We add two brief  comments.  First, we think  that this

          case is clearly controlled  by the New Hampshire Supreme  Court's

          determination in Vermont Mut.  Ins. Co. v. Malcolm, 517  A.2d 800
______________________    _______

          (N.H.  1986), which we  read as holding  unequivocally, on policy


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          language  that  is identical  in  every material  respect  to the

          language here at issue,  that perpetrating a sexual assault  on a

          minor is an inherently injurious act falling outside  the purview

          of  the insurance coverage afforded by a homeowner's policy.  See
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          id.  at 802.   Second, we do  not believe that  the New Hampshire
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          Supreme Court's  recent decision in Providence Mut. Fire Ins. Co.
_____________________________

          v. Scanlon, 638 A.2d 1246 (N.H. 1994), casts any legitimate doubt
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          upon either  the authoritativeness  or the continued  vitality of

          the holding in the earlier Vermont Mut. case.
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                    We need go no further.  The judgment below is summarily



          Affirmed.
Affirmed.
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