Schultz v. Tilley, et al. (Lawyers Weekly No. 11-061-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 15-P-1706 Appeals Court EDITH SCHULTZ vs. CHRISTOPHER TILLEY & others.[1] No. 15-P-1706. Suffolk. December 15, 2016. – May 18, 2017. Present: Cypher, Maldonado, & Blake, JJ.[2] Dog. Insurance, Coverage, Homeowner’s insurance, Misrepresentation. Civil action commenced in the Superior Court Department on July 30, 2013. The case was heard by Heidi E. Brieger, J., and entry of separate and final judgment was ordered by her. James T. Scamby for the plaintiff. Jeffrey T. Scuteri for Christopher Tilley & another. Peter C. Kober for Vermont Mutual Insurance Company. BLAKE, J. The insureds, Angela Tilley and Christopher Tilley,[3] owned a dog that caused property damage and injury to the plaintiff, Edith Schultz. Schultz filed suit against the Tilleys and the defendant, Vermont Mutual Insurance Company (Vermont Mutual). Vermont Mutual counterclaimed and cross-claimed, seeking a declaration that the homeowner’s policy at issue was void as a result of the insureds’ material misrepresentations on their application for insurance as to the dog’s bite history and their history of loss. Following a bench trial on the issue of coverage only, a judge of the Superior Court agreed with Vermont Mutual on the bite history issue, and accordingly dismissed Schultz’s complaint against Vermont Mutual. The Tilleys and Schultz (collectively, the appellants) now jointly appeal. Background. We summarize the facts as found by the judge, supplemented by undisputed information from the record, with certain facts reserved for later discussion. On December 30, 2010, Christopher visited the Tarpey Insurance Group (Tarpey) in Peabody for the purpose of obtaining homeowner’s insurance for his residence in Peabody. With the assistance of Elaine Faithful, one of Tarpey’s customer service representatives, Christopher completed an application for insurance with Vermont Mutual. On the application, Christopher responded “Yes” to the question, “Are there any animals or exotic pets kept on premises?” As a follow-up, the application states, in parentheses, “Note breed and bite history.” Under the “Remarks” section of the application, Faithful noted, “American bull dog — no biting incidents.” Another section of the application was entitled “Loss History” and asked, “Any losses, whether or not paid by insurance, during the last 6 years, at this or at any other location?” Christopher responded “No” and placed his initials adjacent to his response. At the bottom of the application, just above the signature […]