Chow v. Merrimack Mutual Fire Insurance Company (Lawyers Weekly No. 11-062-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑1010                                       Appeals Court   ISAAC CHOW  vs.  MERRIMACK MUTUAL FIRE INSURANCE COMPANY.     No. 12‑P‑1010. Hampshire.     January 8, 2013.  ‑  May 15, 2013. Present:  Cohen, Green, & Vuono, JJ.     Insurance, Homeowner’s insurance.  Contract, Insurance, Performance and breach.  Practice, Civil, Instructions to jury.  Negligence, Standard of care.  Words, “Unoccupied.”       Civil action commenced in the Superior Court Department on November 17, 2008.   After transfer, the case was tried before Bertha D. Josephson, J.     Mark A. Tanner for the plaintiff. John E. Garber for the defendant.     GREEN, J.  Sometime during late December, 2006, or early January, 2007, a house owned by the plaintiff and insured under a homeowner’s policy issued by the defendant incurred substantial damage when pipes froze, and then burst, releasing large amounts of water into the structure.  The defendant denied coverage for the loss, based upon a policy exclusion for damage caused by frozen pipes if (i) the house was unoccupied at the time of the loss, and (ii) the insured failed to use reasonable care to maintain heat in the building.  The plaintiff filed this action against the defendant for breach of contract and declaratory relief.  After a trial, a jury returned a verdict in the defendant’s favor, and this appeal followed.  At issue is whether the trial judge correctly instructed the jury that the negligence of a person entrusted by the plaintiff to maintain heat in the building should be imputed to the plaintiff, so as to establish a failure by the plaintiff, himself, to use reasonable care.  We conclude that the instruction was in error, and reverse the judgment. Background.  Beginning in 1987 and continuing until the summer of 2006, the plaintiff owned and operated a restaurant in Northampton known as the Panda Garden.  When the restaurant opened, the plaintiff acquired a four-bedroom house located at 103 Rocky Hill Road in Hadley (the “property”), to serve as living quarters for restaurant employees.  The plaintiff resides  in New York, but lived at the property during the period when the restaurant was first getting established.  Thereafter, for so long as the restaurant was operating, the restaurant’s general manager, Richard Lau, lived at the property and generally managed it, paying utility bills and addressing any maintenance needs.  During the fall of 2006, Lau moved to a home he […]

Read more...