OneBeacon America Insurance Company v. Celanese Corporation (Lawyers Weekly No. 11-134-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-203 Appeals Court ONEBEACON AMERICA INSURANCE COMPANY vs. CELANESE CORPORATION. No. 16-P-203. Suffolk. November 18, 2016. – October 16, 2017. Present: Trainor, Meade, & Hanlon, JJ. Insurance, Defense of proceedings against insured, Insurer’s obligation to defend. Contract, Insurance. Conflict of Interest. Practice, Civil, Summary judgment, Attorney’s fees. Civil action commenced in the Superior Court Department on March 2, 2010. The case was heard by Christine M. Roach, J., on motions for summary judgment, and an award of attorney’s fees was entered by her. Kevin J. O’Connor (Kara A. Loridas also present) for the plaintiff. Michael John Miguel for the defendant. TRAINOR, J. This appeal arises from a series of cross motions for summary judgment. The plaintiff, OneBeacon America Insurance Company (OneBeacon), appeals from so much of the final judgment as awarded reasonable and necessary defense costs to its insured, Celanese Corporation (Celanese), that Celanese incurred from April 13, 2009, through May 27, 2011.[1] On May 27, 2011, a judge of the Superior Court determined that OneBeacon was entitled to take control of Celanese’s defense as of April 13, 2009 (see note 1, supra). The issue on appeal is whether that determination precludes Celanese from receiving any reimbursement for defense of the underlying claims during the period of time when the question of control over the defense was being litigated. OneBeacon argues that it is not liable for any defense costs incurred by Celanese during that period of time because OneBeacon offered to defend Celanese without a reservation of rights. Celanese, on cross appeal, contends that the judge committed an abuse of discretion by not awarding the full amount of defense costs that Celanese requested. We vacate so much of the judgment that held OneBeacon liable for Celanese’s defense costs for the period of time at issue, and therefore do not reach the issues raised in Celanese’s cross appeal. Background. The following undisputed facts are taken from the summary judgment record. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991) (“The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law”). […]
Commonwealth v. Tradition (North America) Inc. v. Jampel, et al. (Lawyers Weekly No. 11-013-17)
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-1543 Appeals Court COMMONWEALTH vs. TRADITION (NORTH AMERICA) INC.; RONALD JAMPEL & others,[1] third-party defendants. No. 15-P-1543. Suffolk. October 5, 2016. – February 21, 2017. Present: Meade, Milkey, & Kinder, JJ. Bonds, Tax-exempt. Contribution. Contract, Performance and breach, Implied covenant of good faith and fair dealing, Indemnity, Bidding for contract, Misrepresentation, Unjust enrichment, Interference with contractual relations, Settlement agreement, Release from liability. Indemnity. Massachusetts False Claims Act. Consumer Protection Act, Unfair or deceptive act. Deceit. Fraud. Conspiracy. Unjust Enrichment. Unlawful Interference. Release. Limitations, Statute of. Practice, Civil, Enforcement of liability on bond, Joinder of claims, Damages. Civil action commenced in the Superior Court Department on November 5, 2010. Motions to dismiss a third-party complaint against certain third-party defendants were heard by Frances A. McIntyre, J., and a separate motion to dismiss the third-party complaint against another defendant was considered by Paul D. Wilson, J. John E. Roberts (Michael R. Hackett also present) for Tradition (North America) Inc. Joseph J. Bial, of the District of Columbia, for FSA Capital Management Services, LLC. Douglas L. Wald, of the District of Columbia (Kevin P. Martin also present) for Trinity Plus Funding Company LLC. Julia McLetchie for Steven E. Goldberg. Jeremy M. Sternberg, for Ronald Jampel, was present but did not argue. KINDER, J. The Commonwealth brought this enforcement action against the defendant, Tradition (North America) Inc. (Tradition), a broker for transactions involving municipal bond derivatives, claiming that Tradition engaged in bid rigging and other deceptive practices that harmed the Commonwealth in violation of the Consumer Protection Act, G. L. c. 93A, § 2, and the False Claims Act, G. L. c. 12, § 5B. Tradition denied the allegations, asserting that it, too, was a victim of the alleged bid-rigging scheme. Tradition filed third-party claims against individuals and corporations with whom it had consulted in the allegedly fraudulent transactions, including Ronald Jampel, Steven E. Goldberg, Trinity Plus Funding Company LLC (Trinity), and FSA Capital Management Services, LLC (FSA) (collectively, the third-party defendants). The third-party complaint sought contribution from the third-party defendants pursuant to G. L. c. 231B, § 1(a), for any liability Tradition might have to the Commonwealth (contribution claims). It also alleged various other claims, including breach of contract, breach of the implied covenant of good faith and fair dealing, common-law indemnification, unfair and deceptive trade practices, fraud […]
United Salvage Corp. of America v. Kradin (Lawyers Weekly No. 12-159-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 16-03131 BLS 2 UNITED SALVAGE CORP. OF AMERICA d/b/a FRAMINGHAM SALVAGE CO., Plaintiff vs. RICHARD KRADIN, Defendant MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs United Salvage Corporation, doing business as Framingham Salvage Company (Framingham Salvage), instituted this action against the defendant Richard Kradin seeking enforcement of noncompetition and nonsolicitation agreements negotiated when Kradin sold his salvage business to plaintiff. A hearing on plaintiff’s request for a preliminary injunction was held on November 3, 2016. Ruling from the bench, this Court allowed that Motion and entered the Order proposed by plaintiff. Although this Court did articulate the reasons for its ruling in open court, this memorandum is issued by way of further explanation. Framingham Salvage is in the scrap metal and metal recycling business. In January 2015, it purchased all the assets of a competitor, Industrial Metal Recycling Inc. (IMR), owned by the defendant Kradin. In connection with that transaction, the parties executed a series of agreements, all of which are attached to the Verified Complaint. Kradin was represented by 2 counsel in negotiating these agreements, which reference each other and therefore are construed as a whole. Pursuant to an Asset Purchase Agreement, Framingham Salvage obtained all the assets of IMR, including its goodwill, in return for assuming liabilities totaling over $ 500,000 and forgiving IMR’s own $ 152,607 debt to plaintiff. Pursuant to an Employment Agreement, Framingham Salvage agreed to employ Kradin for a term of 60 months at a $ 250,000 annual salary. The parties executed a third agreement, entitled Proprietary Information and Inventions Agreement (the PII Agreement), which contains the restrictive covenants at issue in this case. Those covenants prohibit Kradin from competing with Framingham Salvage or soliciting the business of any customer with whom he has had personal contact or learned about during the course of his employment with the plaintiff. The covenants applied not only during the period of Kradin’s employment but continue for a period of five years from the date of the termination of his employment, regardless of the reason for the termination. Section 4(i ) if the PII Agreement further stated: Each of my obligations to be performed under this Agreement shall be interpreted independent of any other provisions of this Agreement, the Asset Purchase Agreement or my Employment Agreement and any other obligation the Company [Framingham Salvage] may have toward me. The existence of any claims by me against the Company, whether based on this Agreement or otherwise, shall not be a defense to the enforcement by the Company of any of my obligations under this Agreement.” On July 25, 2016, Framingham Salvage terminated Kradin, alleging that […]
OneBeacon America Insurance Company v. Narragansett Electric Company v. American Home Assurance Company, et al. (Lawyers Weekly No. 11-112-16)
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-1240 Appeals Court ONEBEACON AMERICA INSURANCE COMPANY vs. NARRAGANSETT ELECTRIC COMPANY; AMERICAN HOME ASSURANCE COMPANY & others,[1] third-party defendants. No. 13-P-1240. Suffolk. June 3, 2014. – August 31, 2016. Present: Kantrowitz, Hanlon, & Carhart, JJ.[2] Conflict of Laws. Insurance, Comprehensive liability insurance, Excess Liability Insurance, Pollution exclusion clause. Contract, Insurance, Choice of law clause. Real Property, Environmental damage. Civil action commenced in the Superior Court Department on July 25, 2005. Motions for summary judgment regarding choice of law issues were heard by Allan van Gestel, J., and a motion for reconsideration was considered by him; motions for summary judgment were heard by Margaret R. Hinkle, J., and Peter M. Lauriat, J.; the remaining issues were tried in two phases before them; and entry of final judgment was ordered by Lauriat, J. Jay T. Smith, of the District of Columbia (A. Hether Cahill with him) for Narragansett Electric Company. Kevin J. O’Connor for OneBeacon America Insurance Company. David B. Chaffin for Century Indemnity Company. Eileen T. McCabe, of New York, & John T. Harding, for Certain Underwriters at Lloyd’s, London, & others, were present but did not argue. Michael F. Aylward, for American Home Assurance Company & others, was present but did not argue. CARHART, J. This matter is before us pursuant to the December 28, 2015, order of the Supreme Judicial Court, remanding to this court for express consideration the substantive law to be applied to the interpretation of the insurance contracts at issue in OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 2), 87 Mass. App. Ct. 1126 (2015) (OneBeacon No. 2). The plaintiff, OneBeacon America Insurance Company (OneBeacon), along with third-party defendants Certain Underwriters at Lloyd’s, London and Certain London Market Insurance Companies (collectively, London), American Home Assurance Company (American Home), and Century Indemnity Company (Century) argued in their respective appeals that a Superior Court judge erred in determining that Rhode Island law would apply both in deciding whether the insured, Narragansett Electric Company (NEC), was entitled to coverage for environmental contamination at several Rhode Island sites, and in the allocation of damages on the jury’s verdicts as to one of the sites. For background, we refer to OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 1), 87 Mass. App. Ct. 417 […]
Bank of America, N.A. v. Prestige Imports, Inc., et al. (Lawyers Weekly No. 11-087-16)
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-248 Appeals Court BANK OF AMERICA, N.A.[1] vs. PRESTIGE IMPORTS, INC., & others.[2] No. 15-P-248. Norfolk. January 11, 2016. – July 20, 2016. Present: Grainger, Rubin, & Milkey, JJ. Attorney at Law, Attorney-client relationship, Lien, Contingent fee agreement, Withdrawal. Damages, Quantum meruit. Civil action commenced in the Superior Court Department on February 1, 1991. A motion to adjudicate an attorney’s lien, filed on December 9, 2013, was heard by Patrick F. Brady, J. Steven J. Bolotin for George Deptula. Timothy J. Fazio (Jennifer L. Morse with him) for the defendants. RUBIN, J. In 1992, attorney George Deptula agreed to represent Prestige Imports, Inc., and its principals, Helmut Schmidt and his wife Renate Schmidt[3] (collectively, Prestige), on a contingent fee basis in litigation with South Shore Bank and, later, its acquirer, Bank of America, N.A. (Bank of America), in exchange for a nonrefundable retainer and a percentage of any recovery on Prestige’s counterclaims.[4] After victories at two trials and a reversal of those victories by this court, see Bank of America, N.A. v. Prestige Imports, Inc., 75 Mass. App. Ct. 741 (2009) (Prestige Imports), Deptula withdrew from the case without Prestige’s consent in April, 2010. Represented by different counsel, Prestige won a judgment of $ 27,031,568.12, including statutory interest, at a third trial. While that judgment was on appeal at this court, Deptula filed a notice of attorney’s fees lien pursuant to G. L. c. 221, § 50. Prestige brought a motion to adjudicate this lien, arguing that Deptula forfeited it by withdrawing without Prestige’s consent and without good cause. After a jury-waived trial, a Superior Court judge — who was also the trial judge for the third trial in the underlying litigation — ordered the entry of judgment for Prestige. Deptula appealed that judgment and, for the reasons stated infra, we reverse. Background. The litigation between Bank of America and Prestige involved claims by Bank of America for repayment of loans, and counterclaims by Prestige chiefly alleging Uniform Commercial Code violations, violation of G. L. c. 93A, and negligence, arising out of Bank of America’s handling of certain checks and its issuance of treasurer’s checks by which the comptroller of Prestige embezzled substantial funds from Prestige. Detailed facts about that litigation are set forth in Prestige Imports, supra at 742-752. We summarize here […]
Bank of America, N.A. v. Commissioner of Revenue (Lawyers Weekly No. 10-096-16)
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-11995 BANK OF AMERICA, N.A., trustee,[1] vs. COMMISSIONER OF REVENUE. Suffolk. March 7, 2016. – July 11, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Trust, Taxation. Taxation, Trust, Income tax. Fiduciary. Domicil. Words, “Inhabitant.” Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court granted an application for direct appellate review. Kevin P. Martin (Joshua M. Daniels with him) for the taxpayer. Kirk G. Hanson, Assistant Attorney General, for Commissioner of Revenue. Phoebe A. Papageorgiou, of the District of Columbia, & Brad S. Papalardo, for Massachusetts Bankers Association & another, amici curiae, submitted a brief. BOTSFORD, J. In this case, we consider whether Bank of America, N.A. (bank), in its capacity as a corporate trustee of several inter vivos trusts, qualifies as an “inhabitant” and accordingly is subject to the fiduciary income tax under G. L. c. 62, § 10, even though the bank is not domiciled in Massachusetts. Considering the bank’s appeal from a decision of the Appellate Tax Board (board) in which the board determined that the bank did qualify as an inhabitant, we affirm the board’s decision on the record of this case, but on somewhat different grounds.[2] Background.[3] The bank is a national banking association authorized to act as a fiduciary. At all relevant times, the bank’s commercial domicil was in North Carolina, with its principal place of business in Charlotte, North Carolina. This case concerns appeals by the bank from the denials, by the Commissioner of Revenue (commissioner), of applications for abatement of fiduciary income taxes paid by thirty-four inter vivos trusts. The taxes were paid by the bank in its capacity as trustee or co-trustee of each of the thirty-four trusts;[4] the taxes paid related to the tax year ended December 31, 2007 (tax year at issue). In 2011, the bank took the position that these thirty-four and similar inter vivos trusts of which the bank served as trustee or co-trustee did not qualify as “resident inter vivos trusts,” as described in 830 Code Mass. Regs. § 62.10.1(1) (b) (2016),[5] and therefore were not subject to fiduciary income tax under G. L. c. 62, § 10 (§ 10). Accordingly, the bank filed with the commissioner 2,987 applications for abatement of the tax and […]
Bank of America, N.A. v. Casey (Lawyers Weekly No. 10-083-16)
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-11943 BANK OF AMERICA, N.A. vs. DEBORA A. CASEY, trustee.[1] February 11, 2016. – June 16, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Mortgage, Validity. Real Property, Mortgage. Certification of questions of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit. Adam C. Ponte for the defendant. Mark B. Johnson for the plaintiff. Lawrence P. Heffernan & Danielle Andrews Long, for The Abstract Club & another, amici curiae, submitted a brief. BOTSFORD, J. We consider two questions certified to this court by the United States Court of Appeals for the First Circuit (First Circuit).[2] The questions, which arise in connection with a bankruptcy proceeding, concern the power and effect of an affidavit of an attorney executed pursuant to G. L. c. 183, § 5B, in relation to a mortgage containing a defective certificate of acknowledgment. The two questions ask: “1. May an affidavit executed and recorded pursuant to [G. L. c.] 183, § 5B, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor, correct what the parties say is a material defect in the Certificate of Acknowledgment of that mortgage? “2. May an affidavit executed and recorded pursuant to [G. L. c.] 183, § 5B, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor, provide constructive notice of the existence of the mortgage to a bona fide purchaser, either independently or in combination with the mortgage?” For the reasons that follow, we answer both questions yes, in certain circumstances.[3] 1. Background.[4] By quitclaim deed dated September 29, 1999, Alvaro and Lisa Pereira (collectively, Pereiras) acquired title to the property located at 107 Colonial Drive in New Bedford (property). On October 1, 1999, the deed was recorded with the Southern Bristol County registry of deeds (registry). On December 27, 2005, the Pereiras refinanced the property, granting to Bank of America, N.A. (bank), a mortgage in the principal amount of $ 240,000. The Pereiras individually initialed the bottom of each page of the mortgage agreement except the signature page, on which the full signature of each appears. Attorney Raymond J. Quintin also signed […]
Bank of America, N.A. v. Diamond Financial, LLC (Lawyers Weekly No. 11-167-15)
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 14-P-1315 Appeals Court BANK OF AMERICA, N.A.[1] vs. DIAMOND FINANCIAL, LLC. No. 14-P-1315. Suffolk. June 12, 2015. – October 20, 2015. Present: Cohen, Green, & Trainor, JJ. Subrogation. Mortgage, Priority, Junior lien. Jurisdiction, Equitable. Land Court. Civil action commenced in the Land Court Department on December 22, 2011. The case was heard by Judith C. Cutler, J., on motions for summary judgment. George E. Sousa for the defendant. Howard S. Goldman for the plaintiff. TRAINOR, J. Bank of America (BOA), the plaintiff, brought suit against Diamond Financial, LLC (Diamond),[2] seeking equitable subrogation of a mortgage it holds on property located at 18 Eastwood Road, in the town of Shrewsbury. The parties filed cross motions for summary judgment. In granting the plaintiff’s summary judgment motion, the judge found that BOA “is entitled to be equitably subrogated to the priority position” for $ 330,368.29 of the previously recorded mortgage, which was discharged. The defendant, Diamond, appeals. Background. We review the relevant undisputed facts. Milton J. Miranda and Solange D. Miranda purchased a property in Shrewsbury on July 31, 2002. The purchase was financed for the most part with a mortgage loan from Moneyone Corporation. On August 24, 2004, the Mirandas refinanced with a $ 336,150 mortgage loan from Argent Mortgage Company, LLC (Argent).[3] This mortgage was recorded. On or about June 28, 2006, the Mirandas borrowed $ 50,000 from the defendant and granted the defendant a mortgage on the Shrewsbury property and on a property in the city of Worcester.[4] On September 29, 2006, the Mirandas refinanced the Argent mortgage with a mortgage loan of $ 344,000 from Equity Advantage (Equity). As part of the refinancing, $ 330,368.29 of the Equity loan was used to pay the full balance of the Argent mortgage. The Equity mortgage was recorded on October 12, 2006, and the discharge of the Argent mortgage was recorded on October 30, 2006. The closing of the Equity mortgage was conducted by a closing attorney and Closeline, LLC. The Diamond mortgage was not identified during the refinancing process and Equity did not enter into a subrogation agreement. The closing attorney issued a title insurance policy through TICOR Title Insurance Company (TICOR). There is no evidence that Diamond learned of the change in the record order of liens prior to this action. There […]
Ciampa v. Bank of America, et al. (Lawyers Weekly No. 11-109-15)
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 14-P-1179 Appeals Court JAMIE CIAMPA, individually and as administratrix,[1] vs. BANK OF AMERICA[2] & another.[3] No. 14-P-1179. Essex. June 3, 2015. – August 13, 2015. Present: Meade, Hanlon, & Blake, JJ. Individual Retirement Account. Mistake. Trust, Beneficiary, Mistake. Complaint for instructions filed in the Essex Division of the Probate and Family Court Department on May 5, 2010. The case was heard by Susan D. Ricci, J. W. Matthew Iler, Jr., for the plaintiff. Robert A. Delle for J. Edward Cotgageorge. MEADE, J. This case requires us to review the propriety of the allocation of a sixty-six percent share of an individual retirement account (IRA) of the decedent, Priscilla Cotgageorge (Priscilla). Following her death, that share was to be paid to a named contingent beneficiary whose identity cannot be ascertained. Both Priscilla’s daughter, the plaintiff Jamie Ciampa (Jamie), and her stepson, the defendant J. Edward Cotgageorge (Edward), claim to be that contingent beneficiary and, consequently, to be entitled to that share. After a trial, a judge of the Probate and Family Court awarded the sixty-six percent share, as well as the other thirty-four percent share, to Edward. Jamie appeals, and we vacate the decree. 1. Background. We summarize the facts found by the judge, supplementing with uncontroverted evidence in the record. Yankee Microwave, Inc. v. Petricca Communications Sys., Inc., 53 Mass. App. Ct. 497, 499 (2002). Priscilla died intestate in 2007; her husband, James Cotgageorge (James), had predeceased her. Priscilla and James had two children during their marriage: a daughter, Jamie, who enjoyed a close relationship with Priscilla, and a son, Michael.[4] Edward was Priscilla’s stepson, and except for a few short visits and a summer spent living with her and James in Marblehead, Edward lived across the country and was generally uninvolved in the family affairs. At the time of her death, Priscilla owned an IRA held by the defendant Bank of America, doing business as Merrill Lynch Wealth Management (Merrill).[5] Priscilla opened the account in November, 1997, by signing an IRA agreement form and funding the account. The parties stipulated that while Priscilla had signed the form, the handwriting on the rest of the form was not hers. The form named her husband, James, as the sole primary beneficiary,[6] and named two people as contingent beneficiaries: “James Cotgageorge, Jr.” […]
OneBeacon America Insurance Company v. Narragansett Electric Company v. American Home Assurance Company, et al. (Lawyers Weekly No. 11-055-15)
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-1240 Appeals Court ONEBEACON AMERICAINSURANCE COMPANY vs. NARRAGANSETT ELECTRIC COMPANY; AMERICAN HOME ASSURANCE COMPANY & others,[1] third-party defendants (No. 1). No. 13-P-1240. Suffolk. June 3, 2014. – June 3, 2015. Present: Kantrowitz, Hanlon, & Carhart, JJ. Conflict of Laws. Limitations, Statute of. Practice, Civil, Summary judgment, Statute of limitations, Dismissal, Judicial discretion, Attorney’s fees. Insurance, Comprehensive liability insurance, Excess Liability Insurance, Construction of policy, Insurer’s obligation to defend, Defense of proceedings against insured, Pollution exclusion clause, Disclaimer of liability. Indemnity. Contract, Insurance, Indemnity, Construction of contract, Parties, Performance and breach. Real Property, Environmental damage. Jurisdiction. Civil action commenced in the Superior Court Department on July 25, 2005. Motions for summary judgment regarding choice of law issues were heard by Allan van Gestel, J., and a motion for reconsideration was considered by him; motions for summary judgment were heard by Margaret R. Hinkle, J., and Peter M. Lauriat, J.; the remaining issues were tried in two phases before them; and entry of final judgment was ordered by Lauriat, J. Jay T. Smith, of the District of Columbia (A. Hether Cahill with him) for Narragansett Electric Company. Kevin J. O’Connor for OneBeacon America Insurance Company. David B. Chaffin for Century Indemnity Company. Eileen T. McCabe, of New York, & John T. Harding, for Certain Underwriters at Lloyd’s, London, & others, were present but did not argue. Michael F. Aylward, for American Home Assurance Company & others, was present but did not argue. KANTROWITZ, J. To put this rather dense environmental case in perspective, pollution in some of the affected areas started in the mid-1800s, and the first of several insurance policies at issue was written in 1945. Today, we are asked to rule on the propriety of the allowance of numeroussummary judgment motions and the verdicts in three separate, lengthy jury trials.[2] I. Background. The plaintiff, OneBeacon America Insurance Company (OneBeacon), brought this declaratory judgment action in July, 2005, against its insured, Narragansett Electric Company (NEC), seeking a determination that OneBeacon had no duty to defend or indemnify NEC for damages associated with environmental contamination at several sites, formerly utilized by NEC’s predecessors for manufactured gas plant operations and waste disposal. NEC counterclaimed for breach of contract and declaratory relief, adding other insurers that had issued primary and excess liability insurance policies […]