Cape Cod Shellfish & Seafood Company, Inc., et al. v. City of Boston, et al. (Lawyers Weekly No. 11-148-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11-P-1474 Appeals Court CAPE COD SHELLFISH & SEAFOOD COMPANY, INC., & others[1] vs. CITY OF BOSTON & another.[2] No. 11-P-1474. Suffolk. October 9, 2013. – November 12, 2014. Present: Cypher, Katzmann, & Maldonado, JJ. Taxation, Exemption, Leased property, Abatement, Real estate tax: exemption, abatement. Contract, Lease of real estate. Landlord and Tenant, Taxation, Tenancy at sufferance, Lease as contract. Real Property, Lease. Massachusetts Port Authority. Boston. Civil action commenced in the Superior Court Department on November 9, 2004. After review by this court, 74 Mass. App. Ct. 1127 (2009), the case was heard by Elizabeth M. Fahey, J., on a motion for summary judgment. Marshall F. Newman for the plaintiffs. Adam Cederbaum, Assistant Corporation Counsel, for city of Boston. MALDONADO, J. The plaintiffs appeal from a Superior Court judgment in favor of the city of Boston (city) in its effort to tax the plaintiffs as lessees of property owned by the Massachusetts Port Authority (Massport), on Boston’s Fish Pier. Although, pursuant to G. L. c. 91 App., § 1-17 (§ 17), as appearing in St. 1978, c. 332, § 2, Massport and its lessees are not required to pay real estate taxes on Massport properties, an exception to the exemption applies to business lessees of property in the area known as the Commonwealth Flats. In an earlier decision pursuant to our rule 1:28, we determined that the plaintiffs are liable for taxes for their respective lease terms under that exception.[3] At issue now is whether the plaintiffs, all of whom remained on the property after the end of their lease terms, continue to be liable as lessees for the taxes assessed during the holdover period. Background. We recount the undisputed facts from the motion judge’s May 20, 2011, memorandum of decision and order on the city’s motion for summary judgment, supplemented also by the record on appeal as noted. The plaintiffs, Cape Cod Shellfish & Seafood Company, Inc.; John Mantia & Sons Co., Inc.; Atlantic Coast Seafood, Inc.; New England Marketers, Inc.; and Great Eastern Seafood, Inc., operated wholesale fish and seafood businesses on the Boston Fish Pier, which is owned by Massport and situated in the Commonwealth Flats area of South Boston. The plaintiffs originally occupied the property pursuant to written leases with Massport. The relevant leases of the plaintiffs covered the […]
Commonwealth v. Thompson (Lawyers Weekly No. 10-184-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11623 COMMONWEALTH vs. WALTER THOMPSON. November 10, 2014. Controlled Substances. “School Zone” Statute. Statute, Amendment, Retroactive application. After a jury trial, Walter Thompson was convicted of distributing cocaine and doing so in a school zone. While his appeal was pending in the Appeals Court, the school zone statute, G. L. c. 94C, § 32J, was amended to reduce the radius of the school zone from 1,000 feet to 300 feet. St. 2012, c. 192, § 30. In an unpublished decision, a panel of the Appeals Court ruled that this amendment did not have retroactive effect, rejected Thompson’s other claims of error, and affirmed the convictions. Commonwealth v. Thompson, 83 Mass. App. Ct. 1135 (2013). We granted Thompson’s application for further appellate review. 467 Mass. 1101 (2014). We now affirm the convictions, on somewhat different grounds. Evidence. We review the evidence presented at trial in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). On July 31, 2008, at approximately 10 P.M., Cambridge police Detectives Kevin Branley and Ed Liberacki were conducting patrols in Cambridge. From their parked, unmarked vehicle, they observed (Branley using binoculars) Michael Benoit and Lori Quigley sitting on a curb in the parking lot of a convenience store on the corner of Prospect Street and Broadway. Both detectives were experienced in detecting street-level narcotics sales and were familiar with this parking lot from previous narcotics investigations. Benoit and Quigley were counting change in their open hands and looking furtively in all directions. Quigley stood and made a call at a pay telephone attached to the side of the convenience store. After about twenty seconds, she hung up the telephone and returned to the curb, where she and Benoit continued looking up and down the streets. Quigley paced as she did so. After about ten minutes, Thompson approached on bicycle on Broadway from the direction of Harvard Square. He rode through the parking lot and, without stopping, exchanged a few words with Quigley. Thompson, with Quigley following him at a hurried pace, continued on Prospect Street and stopped at a nearby house. As Quigley approached him, they looked back and forth at each other and all around in all directions. Quigley extended her hands toward Thompson, with one palm open and facing up, and the other in […]
Haskins v. Deutsche Bank National Trust Company, et al. (Lawyers Weekly No. 11-146-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-506 Appeals Court JOHN E. HASKINS vs. DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,[1] & others.[2] No. 13-P-506. Worcester. September 3, 2014. – November 10, 2014. Present: Green, Graham, & Katzmann, JJ. Mortgage, Foreclosure. Notice, Foreclosure of mortgage. Assignment. Consumer Protection Act, Investigative demand. Fraud. Practice, Civil, Complaint. Contract, Implied covenant of good faith and fair dealing. Civil action commenced in the Superior Court Department on June 13, 2012. A motion to dismiss was heard by Janet Kenton-Walker, J. Adam T. Sherwin for the plaintiff. Christopher A. Cornetta for the defendants. GREEN, J. We are called upon to address a question raised but not resolved in U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421 (2014) (Schumacher): whether a notice of a mortgagor’s right to cure a mortgage loan default, sent pursuant to G. L. c. 244, § 35A, is deficient if it is sent by the mortgage servicing agent (rather than the record holder of the mortgage), or if it identifies the servicing agent as the mortgage holder. We conclude that the notice in the present case complied with the statute, and affirm the judgment of the Superior Court dismissing the plaintiff’s complaint.[3] Background. The plaintiff, John E. Haskins, purchased his residence at 98 Southville Road, Southborough, in 2002. In 2004, incident to a refinancing transaction, he granted a mortgage to defendant Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First Magnus Financial Corporation (First Magnus).[4] Haskins thereafter defaulted on his loan payment obligations and, by letter dated May 4, 2010, IndyMac Mortgage Services, the mortgage servicing division of defendant OneWest Bank, FSB (IndyMac), informed Haskins that he was in default, but that he had the right to cure the default within ninety days. The letter identified “IndyMac Mortgage Services, a Division of OneWest Bank” as the mortgage holder.[5] In fact, record title to the mortgage was held at the time by MERS, and the equitable or beneficial ownership of the loan secured by the mortgage was held by defendant Deutsche Bank National Trust Company (Deutsche Bank), as trustee of the Residential Asset Securitization Trust 2004-A2, Mortgage Pass-Through Certificates, Series 2004-B (securitization trust). By letter dated December 8, 2010, IndyMac again advised Haskins of the default, and of his right to cure the default (this time within 150 days); like the May […]
Drummer Boy Homes Association, Inc. v. Britton, et al. (Lawyers Weekly No. 11-145-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1761 Appeals Court DRUMMER BOY HOMES ASSOCIATION, INC. vs. CAROLYN P. BRITTON & another.[1] No. 12-P-1761. Middlesex. March 3, 2014. – November 7, 2014. Present: Trainor, Brown, & Meade, JJ. Condominiums, Common expenses. Real Property, Condominium. Lien. Mortgage, Priority. Civil actions commenced in the Concord Division of the District Court Department on August 6, 2007; February 6, 2008; and October 6, 2008. After consolidation, the case was heard by Peter J. Kilmartin, J., on a motion for summary judgment, and a motion to alter and amend the judgment was also heard by him. Thomas O. Moriarty (Katherine G. Brady with him) for the plaintiff. Randy A. Britton, pro se. Henry A. Goodman, Ellen A. Shapiro, Merle R. Hass, Charles A. Perkins, Jr., & Gary M. Daddario, for Community Associations Institute, amicus curiae, submitted a brief. Stephen C. Reilly & Jennifer E. Greaney, for Bank of America, N.A., amicus curiae, submitted a brief. BROWN, J. The plaintiff, Drummer Boy Homes Association, Inc. (Association), appeals from a decision and order of the Appellate Division of the District Court in the Association’s consolidated actions against the owners of a condominium unit to recover unpaid common expenses. The Appellate Division ruled that, pursuant to G. L. c. 183A, § 6, the Association’s statutory lien for those expenses was prior to the first mortgage on the defendants’ unit only to the extent of amounts due for the six months preceding the institution of the first of the Association’s three consolidated lawsuits, and not for the three successive six-month periods preceding each suit. The defendants, Carolyn P. Britton and Randy Britton, appearing pro se, cross-appeal, claiming the judgment is void due to misnomer of the plaintiff.[2] We affirm. 1. Background. We summarize the undisputed facts and procedural history from the Appellate Division’s July 9, 2010, opinion, supplemented from the record. The Association provides for the common operation of a condominium complex in Lexington known as Drummer Boy Green. The defendants, owners of a unit in the complex, withheld payment of their monthly fees for common expenses in connection with a dispute with the Association over certain parking rules and associated fines. Pertinent here, the Association filed an action in the District Court on July 31, 2007, to recover the unpaid common expenses and to establish a […]
DiCarlo, et al. v. Suffolk Construction Co., Inc., et al. (Lawyers Weekly No. 11-142-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-388 Appeals Court ROBERT M. DiCARLO & another[1] vs. SUFFOLK CONSTRUCTION CO., INC., & others.[2] No. 13-P-388. Suffolk. December 10, 2013. – November 6, 2014. Present: Berry, Meade, & Agnes, JJ. Workers’ Compensation Act, Action against third person, Settlement agreement, Insurer. Lien. Civil action commenced in the Superior Court Department on March 29, 2007. A petition for settlement was heard by Frances A. McIntyre, J. A proceeding for interlocutory review was heard in the Appeals Court by Carhart, J. Alice J. Klein for the plaintiffs. Wystan M. Ackerman for Twin City Fire Insurance Company. Marie Cheung-Truslow, for National Association of Subrogation Professionals, amicus curiae, submitted a brief. BERRY, J. This appeal involves a workers’ compensation insurer’s lien under G. L. c. 152, § 15, and poses the question whether, in cases where an injured employee receives workers’ compensation benefits and then sues and successfully negotiates the allocation of noneconomic damages to the employee in a lawsuit against a third-party tortfeasor, the § 15 lien attaches to the noneconomic damage recovery, such as for pain and suffering. We conclude that this interlocutory appeal[3] from an order denying the plaintiff’s amended petition for settlement is controlled by this court’s previous decision in Curry v. Great Am. Ins. Co., 80 Mass. App. Ct. 592 (2011) (Curry).[4] Curry held that an insurer’s lien under G. L. c. 152, § 15, did not reach the settlement proceeds of an employee’s third-party action that were allocated to the worker for his pain and suffering and to his spouse for loss of consortium. The fact that Curry was a wrongful death action brought by the estate of a deceased worker, and that this case is a tort action brought by an injured worker, does not, we believe, provide a meaningful basis on which to distinguish Curry, and not apply its rationale.[5] As the Curry court pointed out, a deceased worker’s legal representative “stands in the shoes of the deceased” worker for purposes of § 15. Curry, supra at 595 & 597 n.7. We begin by noting that the holding in Curry has been followed by the Department of Industrial Accidents. See Circular Letter No. 341, issued by the department on April 12, 2012, which states, in pertinent part: “The department is presently revising its § 15 interactive calculator [for allocations under G. L. c. […]
Vaida v. Vaida (Lawyers Weekly No. 11-143-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1827 Appeals Court NANCY C. VAIDA vs. GEORGE A. VAIDA. No. 13-P-1827. Norfolk. May 7, 2014. – November 6, 2014. Present: Cypher, Kafker, & Hanlon, JJ. Divorce and Separation, Child support, Attorney’s fees. Parent and Child, Child support. Jurisdiction, Equitable. Probate Court, General equity power. Complaint in equity filed in the Norfolk Division of the Probate and Family Court Department on February 16, 2011. The case was heard by Jennifer M.R. Ulwick, J., on a motion for summary judgment. David E. Cherny (Laura E. Ruzzo with him) for the plaintiff. Steven J. Ryan for the defendant. CYPHER, J. The plaintiff, Nancy C. Vaida (mother), appeals from an order for summary judgment on her complaint seeking that the defendant, George A. Vaida (father), pay postminority support for his physically disabled son. We affirm. 1. Factual and procedural background. The parties were married in 1977, filed for divorce in 1993, and were divorced by a judgment of divorce nisi dated August 22, 1996, as amended September 24, 1996, and further amended December 2, 1996 (judgment of divorce). There are three children born of the marriage: Allison, Justin, and Evan. At the time of the divorce, the children were sixteen, fourteen, and eight years old, respectively. On April 22, 1995, while the parties were separated and divorce proceedings were pending, the father took Evan and Justin on vacation in Truro. While they were on vacation, the father took Evan and Justin for a ride on the front bumper of his vehicle. Evan and Justin fell off the bumper and were accidentally run over by the vehicle driven by the father. As a result of the accident, Evan became a partial quadriplegic. He is confined to a wheelchair and paralyzed from the chest down. Justin was also injured in the accident, but not as severely as Evan. The father was wholly responsible for the injuries Evan and Justin sustained. On November 7, 1995, the mother, individually and as a parent and next friend of Evan and Justin, filed a civil lawsuit (civil suit) against the father seeking monetary damages from him for herself, Justin, and Evan. While the civil suit was pending, the divorce trial took place, and on August 22, 1998, the court entered a judgment of divorce. Pursuant to that judgment, […]
Skyhook Wireless, Inc. v. Google Inc. (Lawyers Weekly No. 11-144-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1236 Appeals Court SKYHOOK WIRELESS, INC. vs. GOOGLE INC. No. 13-P-1236. Suffolk. May 9, 2014. – November 6, 2014. Present: Kantrowitz, Cohen, & Agnes, JJ. Contract, Interference with contractual relations, Implied covenant of good faith and fair dealing. Unlawful Interference. Practice, Civil, Summary judgment, Consumer protection case. Malice. Consumer Protection Act, Unfair act or practice. Civil action commenced in the Superior Court Department on September 15, 2010. The case was heard by Judith Fabricant, J., on a motion for summary judgment. Glenn K. Vanzura, of California (Scott McConchie with him) for the plaintiff. Jonathan M. Albano (Susan Baker Manning, of the District of Columbia, with him) for the defendant. COHEN, J. After mobile electronic device manufacturers Motorola, Inc. (Motorola), and Samsung Electronics Co., Ltd. (Samsung), withdrew from business deals with software developer Skyhook Wireless, Inc. (Skyhook), Skyhook filed a complaint against the defendant, Google Inc. (Google), alleging intentional interference with Skyhook’s contract with Motorola, intentional interference with Skyhook’s advantageous business relations with both Motorola and Samsung, and violations of G. L. c. 93A.[1] A judge of the Superior Court granted Google’s motion for summary judgment on all counts.[2] We affirm. Background.[3] Consistent with summary judgment standards, the facts upon which we rely are either undisputed or taken in the light most favorable to Skyhook. See Drakopoulos v. U.S. Bank Natl. Assn., 465 Mass. 775, 777 (2013).[4] This case arises from the aborted plans of Motorola and Samsung, manufacturers of mobile electronic devices (including so-called “smart phones”), to license and install Skyhook’s software product, XPS, to provide location services on their “Android” mobile devices (described below). Location services identify where the mobile device is physically positioned. Alone and in conjunction with other software applications, they allow the device user to find his or her location, to identify the location of nearby facilities, and to receive marketing information about commercial establishments in the vicinity. Location systems also collect location data from the device and return that data to the software provider for inclusion in its location database. The data then can be used to improve the accuracy of location results, as well as for commercial purposes. Android is a mobile device operating system developed and maintained by Google. It is an “open source” operating system, meaning that it is publicly available and can be used […]
Doe, Sex Offender Registry Board No. 68549 v. Sex Offender Registry Board (Lawyers Weekly No. 10-183-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11562 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 68549 vs. SEX OFFENDER REGISTRY BOARD. Suffolk. September 3, 2014. – November 5, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Substantial evidence, Regulations. Evidence, Sex offender, Expert opinion. Practice, Civil, Sex offender. Witness, Expert. Regulation. Minor. Civil action commenced in the Superior Court Department on June 15, 2010. The case was heard by Robert C. Cosgrove, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Francis J. DiMento (Dana Alan Curhan with him) for the plaintiff. Jennifer K. Zalnasky for the defendant. Eric Tennen, for Youth Advocacy Division of the Committee for Public Counsel Services & others, amici curiae, submitted a brief. Robert E. McDonnell, Jeff Goldman, Nathaniel P. Bruhn, & Saia M. Smith, for American Civil Liberties Union Foundation of Massachusetts & another, amici curiae, submitted a brief. LENK, J. Over a three-year period ending in 1988, when he was sixteen years old, John Doe No. 68549 repeatedly subjected two of his cousins to sexual assaults, including rape. His victims came forward many years after the fact and, in October, 2003, when Doe was thirty-one years old, he pleaded guilty to a number of sex offenses committed when he was a juvenile. In March, 2006, a hearing examiner of the Sex Offender Registry Board (SORB) determined that Doe posed a moderate risk of reoffense and a moderate degree of dangerousness, and classified Doe as a level two sex offender. A Superior Court judge, determining that this classification was not supported by substantial evidence, remanded for further proceedings. In May, 2010, a successor hearing examiner (successor examiner) concluded that Doe poses a low risk of reoffense and a low degree of dangerousness. Doe was therefore classified as a level one sex offender, a classification that was upheld by a different judge of the Superior Court. Doe appealed, and we granted his application for direct appellate review. Doe contends that he should not be required to register as a sex offender. See G. L. c. 6, § 178K (2) (a)-(d). He argues that, in light of scientific research showing that adolescent brains are different from adult brains, and in light of the […]
Commonwealth v. Roman (Lawyers Weekly No. 10-182-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11311 COMMONWEALTH vs. MIGUEL ROMAN. Hampshire. September 5, 2014. – November 4, 2014. Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ. Homicide. Practice, Criminal, Agreement between prosecutor and witness, Capital case, Conduct of prosecutor, Disclosure of evidence, Discovery, Examination of jurors, Instructions to jury, Interrogation of jurors, Jury and jurors, Mistrial, Required finding, Speedy trial, Voir dire, Witness. Constitutional Law, Jury. Evidence, Bias of government witness, Credibility of witness, Immunized witness. Witness, Bias, Credibility, Immunity. Jury and Jurors. Indictments found and returned in the Superior Court Department on February 18, 2010. A motion to dismiss was heard by Richard J. Carey, J.; a renewed motion to dismiss was considered by Cornelius J. Moriarity, II, J.; and the cases were tried before Constance M. Sweeney, J. Donald A. Harwood for the defendant. Jane Davidson Montori, Assistant District Attorney, for the Commonwealth. SPINA, J. The defendant was convicted of deliberately premeditated murder and possession of a class B substance. On appeal he asserts error in (1) the denial of his motion for a required finding of not guilty; (2) the denial of his motion to dismiss based on Mass. R. Crim. P. 36, as amended, 422 Mass. 1503 (1996) (rule 36); (3) the denial of his motion to dismiss for delayed disclosure; (4) the judge’s failure to declare, sua sponte, a mistrial based on alleged jury tampering; and (5) the judge’s instruction pursuant to Commonwealth v. Ciampa, 406 Mass. 257 (1989). The defendant also seeks relief under G. L. c. 278, § 33E. We affirm the convictions and decline to exercise our authority under G. L. c. 278, § 33E, to reduce the conviction of murder to a lesser degree of guilt or order a new trial. 1. Background. The jury could have found the following facts. Shortly before midnight on January 28, 2010, Angel Gonzalez (Angel) called the defendant on his cellular telephone to arrange a purchase of cocaine. Angel and Luis Soto then drove to a night club in Holyoke where the defendant sold them cocaine. They traveled in a grey four-door 2006 Nissan Altima owned by Soto’s girl friend. They then drove to a bar in Holyoke, ingesting the cocaine en route. At about 12:56 A.M. on January 29, Angel’s mother called Angel on his cellular telephone and told him that the victim […]
Verrill Farms, LLC v. Farm Family Casualty Insurance Company (Lawyers Weekly No. 11-141-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1747 Appeals Court VERRILL FARMS, LLC vs. FARM FAMILY CASUALTY INSURANCE COMPANY. No. 13-P-1747. Middlesex. May 2, 2014. – November 4, 2014. Present: Trainor, Fecteau, & Carhart, JJ. Insurance, Business owner’s policy, Amount of recovery for loss, Construction of policy. Contract, Insurance. Civil action commenced in the Superior Court Department on September 17, 2010. The case was heard by Kimberly S. Budd, J., on motions for summary judgment. Barry P. Fogel for the plaintiff. William A. Schneider for the defendant. TRAINOR, J. The plaintiff, Verrill Farms, LLC (Verrill Farms), owns and operates a retail farm store in Concord. The defendant, Farm Family Casualty Insurance Company (Farm Family), issued a “Businessowners Advantage Insurance Policy” (policy) effective August 4, 2008, to August 4, 2009, to Verrill Farms. On September 20, 2008, Verrill Farms suffered a fire loss to its farm store. Within two days of the fire, Verrill Farms reopened its business at alternate locations at reduced capacity. Within another month, the business had resumed nearly full capacity in temporary facilities at nearby locations. After the fire and during the process of restarting the business at the alternate locations, no employees were laid off. All employees who remained on the payroll were involved in operations that allowed Verrill Farms to maintain its business and generate income. Verrill Farms submitted a claim under the policy for loss of business income, based on its loss of net income (net profit or loss) in the year after the fire, which it believed the policy covered under the loss of business income coverage. Farm Family paid a sum considerably less than the claim made by Verrill Farms, based on its interpretation of what expenses can be included in a calculation of net profit or loss in order to determine loss of business income under the policy.[1] Farm Family describes the question as whether it has to “pay” Verrill Farms for the cost of its ordinary payroll expense during the period of restoration, beyond the sixty-day limit contained in the policy. See note 7, infra. The Superior Court judge declared that Farm Family did not have to pay the cost of ordinary payroll beyond the sixty-day limit and granted summary judgment in Farm Family’s favor. This, however, is not what Verrill Farms was seeking to recover and […]