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Clairmont, et al. v. Amer Sports Winter & Outdoor Company, et al. (Lawyers Weekly No. 09-039-17)

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COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, ss. SUPERIOR COURT
CIVIL ACTION
NO. 14-00505
FRANCIS CLAIRMONT AND GEORGE CLAIRMONT
vs.
AMER SPORTS WINTER & OUTDOOR COMPANY & another1
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT, AMER SPORTS WINTER & OUTDOOR COMPANY’S, MOTION FOR SUMMARY JUDGMENT
This action arises out of a January 15, 2011 incident in which the plaintiff, Francis Clairmont (“Clairmont’), tripped and fell while wearing a pair of boots manufactured by defendant Amer Sports Winter & Outdoor Company (“Amer Sports”). Clairmont’s Complaint against Amer Sports alleges negligence (Count I), defective design (Count II), breach of warranty (Count III), and failure to warn (Count IV) in connection her accident. Clairmont’s husband and co-plaintiff, George Clairmont, also asserts a claim for loss of consortium in the Complaint (Count IX).
This matter is before the Court on Amer Sports’ motion for summary judgment on all of the Plaintiffs’ claims. For the following reasons, Amer Sports’ motion is ALLOWED.
BACKGROUND
The following relevant facts are either undisputed or presented in the light most favorable to the non-moving party, in accordance with the dictates of Mass. R. Civ. P. 56.
On or about January 15, 2011, Plaintiff Francis Clairmont (“Francis”) was shopping at the Derby Street Shoppes in Hingham. She was wearing a pair of Solomon Gore-tex Contragrip
1 Eastern Mountain Sports, Inc.
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ankle high hiking boots (“the Boots”) at the time. Amer Sports manufactured the Boots. The Boots have a “speed lacing” design, which includes a rigid J-shaped hook comprised of a curved neck and a fastening tail, through which the laces pass to tie each of the Boots. As Francis exited the store, the lace of the left boot caught on the hook of her right boot. She fell forward as her legs became entangled and was injured.
Plaintiffs present no expert testimony on the design of the speed laces, and have adduced no evidence that Amer Sports knew, or had reason to know, of any similar accidents or occurrences caused by the speed laces.
Amer Sports contends that manufacturers have used the patented speed lacing design for more than one-hundred years, and that this design is popular on hiking boots, work boots, and ice skates.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate when the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c); see also DuPont v. Commissioner of Corr., 448 Mass. 389, 397 (2007). The moving party bears the initial burden of demonstrating that there is no triable issue and he or she is entitled to judgment. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his or her favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trs. of the Coll.
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of the Holy Cross, 388 Mass. 16 (1983); see also Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999).
II. Negligence, Defective Design, and Breach of Warranty Claims (Counts I, II, and III)
While styled as three different theories of liability, Counts I, II, and III alleging negligence, defective design and breach of warranty, respectively, all turn on the same core contention that the speed laces on the Boots were defectively designed and that such defect caused plaintiff Francis’ accident.
To establish a claim for defective design, a plaintiff must show that the manufacturer “failed to exercise reasonable care to eliminate avoidable or foreseeable dangers to the user of the product.” Morrell v. Precise Engineering, Inc., 36 Mass. App. Ct. 935, 936 (1994) (Rule 1:28 Opinion), citing Uloth v. City Tank Corp., 376 Mass. 874, 880-881 (1978). A defective design claim requires proof that the product is not reasonably safe for its intended purposes and for reasonably foreseeable uses, considering the customer’s ordinary expectations about the product. See Back v. Wickes Corp., 375 Mass. 633, 640–641 (1978); see also Haglund v. Philip Morris, Inc., 446 Mass. 741, 748 (2006) (in design defect case, “jury must weigh multiple factors, including ‘the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.’”) (citations omitted). Further, “[i]n claims alleging negligence in the design of a product, as with claims of a design defect in breach of the implied warranty of merchantability, the plaintiff must show an available design modification which would reduce the risk without undue cost or interference with the performance of the [product], and the jury must consider whether a safer alternative design was available in deciding whether
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the defendant was negligent for failing to adopt that design. … a reasonable alternative design must be shown before a defendant may be found liable for breach of the implied warranty of merchantability based on a design defect, and [a] defendant cannot be found to have been negligent without having breached the warranty of merchantability.” Evans v. Lorillard Tobacco Co., 465 Mass. 411, 443-444 (2013) (citations, internal punctuation omitted).
In this case, Plaintiffs present no expert testimony on whether the design of the speed laces was defective or whether there was an available appropriate design modification that would have reduced such risk without undue cost or interference with the product’s performance. Plaintiffs contend they do not need an expert; Amer Sports argues that they do. The parties appear to agree, however, that the requirement of expert testimony poses a purely legal question for the Court to resolve. Expert testimony is generally required where an issue the jury must decide “is beyond the common knowledge or understanding of the lay juror.” Commonwealth v. Sands, 424 Mass. 184, 186 (1997). Accordingly, Massachusetts courts have routinely held that expert testimony in design defect cases is required. See, e.g., Enrich v. Windmere Corp., 416 Mass. 83, 87 (1993) (alleged defect in an electric cooling fan required expert testimony); Morrell, 36 Mass. App. Ct. at 936 (determination of proper scaffolding brackets required expert testimony); Wiska v. St. Stanislaus Social Club, Inc., 7 Mass. App. Ct. 813, 821 (1979) (alleged defective design of an automobile’s windshield required expert testimony). It is only in rare cases, where the jurors can simply apply their own lay knowledge to determine liability because the “design defect claimed is so simple or obvious that the need for technical assistance is eliminated,” that such expert testimony is unnecessary. Esturban v. Massachusetts Bay Transp. Auth., 68 Mass. App. Ct. 911, 912 n. 7 (2007); Smith v. Ariens Co., 375 Mass. 620, 625 (1978) (a jury could infer without expert testimony that metal protrusions on the handlebars of a
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snowmobile, which cut the plaintiff’s face when she was propelled forward in a collision, amounted to an obvious design defect); doCanto v. Ametek, 367 Mass. 776, 782 (1975) (no expert testimony needed where plaintiff introduced the defendant’s subsequent remedial measures to the machine that caused the injury and the opinion of the designer of the machine that the product was unsafe).2
While the speed laces in this case are of a simple design, and the facts of the accident are straightforward, the analysis of the alleged design defect in the speed laces is neither simple nor straightforward. The jury would have to consider the biomechanics of a person walking in the Boots, the design and location of the speed laces on the Boots, and the appropriateness of an alternative design, all issues which are not sufficiently obvious that they are within the average juror’s common knowledge. See Esturban, 68 Mass. App. Ct. at 912 (“Without the aid of an expert in the field, jurors would also be left to speculate about whether alternatively engineered designs might have prevented the accident”) (citation omitted). This Court thus finds expert testimony is required in this case to prove a design defect in the Boots, and that speed laces – which haves been widely used in a variety of footwear for a century – do not present a gross or obvious defect.
Moreover, aside from Plaintiffs’ post-accident claim that the Boots posed an obvious trip hazard, Plaintiffs failed to elicit any evidence concerning similar incidents related to the speed lacing design or that Amer was aware of any such risks associated with the speed laces.
2 The rule is similar in professional negligence cases. In them, a plaintiff can prove professional negligence without an expert “[o]nly where professional negligence is so gross or obvious that jurors can rely on their common knowledge to recognize or infer negligence.” Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 403 (2003). Examples of such “gross or obvious” malpractice in the professional context includes a failure to meet deadlines, lack of compliance with client’s instructions, and unexcused failures to defend a client, particularly when such actions are compounded by misrepresentations and false statements to the client. See, e.g. Global Naps, Inc. v. Awiszus, 457 Mass. 489, 501 (2010); Wagerman v. Adams, 829 F.2d 196, 218-220 (1st Cir. 1987); Glidden v. Terranova, 12 Mass. App. Ct. 597, 598-601 (1981).
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Plaintiffs thus therefore failed to demonstrate that the speed laces on the Boots created a reasonably foreseeable risk of accident. Two other courts have come to similar conclusions. In a case addressing a similar claim involving shoes with a speed lacing design, the United States District Court for the Southern District of Ohio granted summary judgment against the plaintiff’s claim, finding that the plaintiff had “fail[ed] to raise genuine issues of material fact regarding the breach of duty, foreseeability, and causation elements of his negligence claim related to speed-lace hooks. Plaintiff did not demonstrate how a reasonable jury could find that Defendant was on actual or constructive notice of the alleged danger of speed-lace hooks nor did Plaintiff show that an accident from the use of speed-lace hooks was reasonably foreseeable.” Barger v. CSX Transp., Inc., 110 F. Supp. 2d 648, 653-654 (S.D. Ohio 2000). Similarly, the First Circuit affirmed a grant of summary judgment in a similar case to a manufacturer of resin sandals, called “Crocs,” in part because the plaintiff “failed to put forward an expert to accredit” a government report on potential dangers of the product. Geshke v. Crocs, Inc., 740 F.3d 74, 79 (1st Cir. 2014).
Plaintiffs failed to adduce evidence, expert or factual, to support their contention that the Boots posed an obvious design defect or that a reasonable alternative design was available. Amer Sports is thus entitled to judgment as to Counts I, II, and III of the Complaint.
III. Failure to Warn (Count IV)
Count IV of the Complaint alleges Amer Sports had a duty to warn Plaintiff Francis Clairmont that the Boots posed a tripping hazard.
A manufacturer has a duty to warn against a foreseeable use of its product involving a hazard not apparent to the user. Fegan v. Lynn Ladder Co., Inc., 3 Mass. App. Ct. 60, 63-64 (1975). However, a manufacturer has no duty to warn of “risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing
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prior to marketing the product.” Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 23 (1998). “A warning is not required unless ‘the person on whom the duty rests has some reason to suppose a warning is needed.’” Killeen v. Harmon Grain Prod., Inc., 11 Mass. App. Ct. 20, 24 (1980) (quoting Carney v. Bereault, 348 Mass. 502, 506 (1965)). Further, “where the danger presented by a given product is obvious, no duty to warn [exists] because a warning will not reduce the likelihood of injury.” Bavuso v. Caterpillar Indus., Inc., 408 Mass. 694, 699 (1990), quoted in Evans, 465 Mass. at 439.
Francis’ argument that the speed laces were obviously defectively designed undermines her failure to warn claim. Even leaving that aside, Francis failed to establish that the speed laces posed a reasonably foreseeable risk or that such risk could have been discovered through additional product testing. Accordingly, based upon the facts before this Court, Amer Sports had no reason to believe a warning was required and is entitled to summary judgment as to Count IV of the Complaint.
IV. Loss of Consortium (Count IX)
Recovery for loss of consortium generally requires proof of a tortious act which caused injury to one’s spouse. Sena v. Commonwealth, 417 Mass. 250, 264 (1994) (citations omitted); Mouradian v. General Elec., 23 Mass. App. Ct. 538, 544 (1987) (citations omitted). As discussed above, as the substantive counts brought by Francis against Amer Sports must be dismissed, the claims of her husband, George, for loss of consortium arising from Francis’ claims must also be dismissed. Short v. Town of Burlington, 11 Mass. App. Ct. 909, 910 (1981) (claim of wife for loss of consortium failed as entirely derivative of failed personal injury claim by husband). Amer Sports is therefore entitled to summary judgment on Count IX.
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ORDER
For the foregoing reasons, Amer Sports Winter & Outdoor Company’s motion for summary judgment on Counts I-IV and IX is ALLOWED.
______________________________
Michael D. Ricciuti
Justice of the Superior Court
DATED: October 30, 2017 read more

Posted by Stephen Sandberg - November 13, 2017 at 9:29 pm

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Great Divide Insurance Company v. Lexington Insurance Company (Lawyers Weekly No. 10-172-17)

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

SJC-12164

GREAT DIVIDE INSURANCE COMPANY  vs.  LEXINGTON INSURANCE COMPANY.

Suffolk.     March 6, 2017. – November 1, 2017.

Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1]

Motor Vehicle, Insurance.  Insurance, Motor vehicle insurance, Excess liability insurance.

Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.

 

Adam R. Doherty (Thomas M. Elcock also present) for the plaintiff. read more

Posted by Stephen Sandberg - November 1, 2017 at 4:07 pm

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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. read more

Posted by Stephen Sandberg - October 16, 2017 at 5:18 pm

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Kiribati Seafood Company, LLC, et al. v. Dechert LLP (Lawyers Weekly No. 10-161-17)

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

SJC-12287

KIRIBATI SEAFOOD COMPANY, LLC, & another[1]  vs.  DECHERT LLP.

Suffolk.     April 6, 2017. – October 11, 2017.

Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[2]

Attorney at Law, Malpractice, Negligence.  Negligence, Attorney at law, Proximate cause.  Proximate CauseDamages, Mitigation.

Civil action commenced in the Superior Court Department on July 1, 2013.

The case was heard by Kenneth W. Salinger, J., on motions for summary judgment. read more

Posted by Stephen Sandberg - October 11, 2017 at 10:48 pm

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DeOliveira v. Liberty Mutual Insurance Company (Lawyers Weekly No. 09-016-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 17-00218-BLS1
MONICA DEOLIVEIRA1
vs.
LIBERTY MUTUAL INSURANCE COMPANY
MEMORANDUM OF DECISION AND ORDER ON
DEFENDANT’S MOTION TO DISMISS
Plaintiff, Monica DeOliveira, seeks to recover from her automobile insurer, defendant,
Liberty Mutual Insurance Company (Liberty), under a Massachusetts Automobile Insurance
Policy (Policy). DeOliveira alleges that Liberty improperly failed to pay benefits under the
Medical Payments (MedPay) provision of the Policy. DeOliveira’s Second Amended Complaint
(Complaint) asserts three claims against Liberty: breach of contract (Count I), declaratory
judgment (Count II), and violation of G.L. c. 93A (Count III).2 Liberty moves to dismiss all three
claims for failure to state a claim upon which relief can be granted under Mass. R. Civ. P.
12(b)(6).3 For the reasons stated below, Liberty’s motion to dismiss is denied.
1 On behalf of herself and all others similarly situated.
2 DeOliveira filed a Motion for Leave of Court to File a Second Amended Complaint on
August 16, 2017, after the parties filed their memoranda on Liberty’s motion to dismiss. On
August 18, 2017, this court allowed DeOliveira to file the Second Amended Complaint and
noted that if new allegations in that version of the Complaint required supplemental briefing, the
parties could file written memoranda on the date of the oral argument on the motion to dismiss.
The parties declined to file supplemental memoranda.
3 Liberty also moves to dismiss on the ground of insufficiency of service of process. The
motion to dismiss on that ground is denied. On April 18, 2017, DeOliveira filed a motion to
BACKGROUND
The facts as revealed by DeOliveira’s Complaint are as follows.
DeOliveira is a resident of Worcester, Massachusetts. Liberty is a Massachusetts
corporation with a principal place of business in Boston, Massachusetts.
On October 28, 2010, DeOliveira purchased the Policy from Liberty. The Policy is
attached to the Complaint as Exhibit A. The Policy includes up to $ 8,000 in personal injury
protection (PIP) benefits. It also includes an optional coverage for up to $ 5,000 in MedPay
benefits. DeOliveira paid an additional premium of $ 10 per vehicle for two vehicles for the
MedPay coverage.
The Policy’s MedPay provision (Part 6) states, in part: “Under this Part, we will pay
reasonable expenses for necessary medical and funeral services incurred as a result of an
accident. We will pay for expenses resulting from bodily injuries to anyone occupying your auto
at the time of the accident.” In addition, the MedPay provision states that: “We will not pay
under this Part for any expenses that are payable, or would have been payable except for the
deductible, under the PIP coverage of this policy or any other Massachusetts auto policy.”
The Policy’s PIP provision provides coverage for three kinds of benefits: (1) medical
expenses, (2) lost wages, and (3) replacement services. The PIP provision also states, in part:
Some people have a policy of health, sickness, or disability insurance or a contract
or agreement with a group, organization partnership or corporation to provide, pay
for, or reimburse the cost of medical expenses (“health plan”). If so, we will pay
up to $ 2,000 of medical expenses for any injured person. We will also pay
medical expenses in excess of $ 2,000 for such injured person which will not be
paid by a health plan. Medical expenses must be submitted to the health plan to
determine what the health plan will pay before we pay benefits in excess of
extend the date for service of process that was allowed by the court (Kaplan, J.).
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$ 2,000 under this Part. We will not pay for medical expenses in excess of $ 2,000
that the health plan would have paid had the injured person sought treatment in
accordance with the requirements of the health plan. In any case, our total
payment for medical expenses, lost wages and replacement services will not
exceed $ 8,000.
On June 7, 2011, DeOliveira operated a motor vehicle that was involved in a collision.
She suffered personal injuries as a result of the collision. As a result of the collision, DeOliveira
received reasonable and necessary medical care and treatment for personal injuries, the cost of
which totaled $ 4,004.30. She notified Liberty of the loss and submitted her medical bills to
Liberty. Liberty paid DeOliveira $ 2,000 in PIP benefits. On October 25, 2011, Liberty issued a
PIP exhaustion letter to DeOliveira, which is attached to the Complaint as Exhibit C. The PIP
exhaustion letter states, in part:
Please be advised that the $ 2,000.00 Personal Injury Protection coverage on this
claim has been exhausted. Please submit all outstanding medical bills to your
private health carrier.
If your health carrier denies payment or only pays a portion of the bill, please
forward a copy of their explanation of benefits to the address listed in the
letterhead so that I may review it for any necessary payments.
DeOliveira submitted reasonable and necessary medical bills and expenses totaling
$ 2,004.30 to her health insurance carrier, Fallon Community Health Plan (Fallon). DeOliveira’s
health insurance policy with Fallon did not contain a provision deferring to payment under the
MedPay provision of her Policy. Fallon paid the $ 2,004.30 in medical bills and expenses.
On April 23, 2012, Fallon asserted a statutory lien of $ 791.49 against DeOliveira’s third
party personal injury claim arising from the collision (Fallon lien).
Over a year later, on September 3, 2013, DeOliveira settled her personal injury claim with
the tortfeasor involved in the June 7, 2011 collision. The tortfeasor paid DeOliveira as a result of
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the settlement. Shortly thereafter, DeOliveira paid the Fallon lien, in full, from proceeds she
received from the settlement.
On August 29, 2013, DeOliveira sought payment from Liberty under the terms and
conditions of the Policy’s MedPay provision. The Fallon lien was itemized to indicate the bills
that Fallon paid. DeOliveira asserted that the medical bills and expenses in excess of $ 2,000 that
were covered by Fallon and not payable under the PIP provision of the Policy were covered
under the MedPay provision. Complaint at paras. 36-37. Liberty, however, refused to pay
DeOliveira under the MedPay provision of the Policy.
On January 20, 2017, DeOliveira filed this action against Liberty. DeOliveira claims that
Liberty breached the Policy by failing to provide her with MedPay coverage and that this conduct
violated Chapter 93A. She brings this putative class action on behalf of herself and all persons
similarly situated. She seeks to define the class as, “all persons who purchased one of
Defendant’s Massachusetts automobile insurance policies with MedPay coverage and/or were
covered under one of Defendant’s Massachusetts automobile insurance policies with MedPay
coverage who sustained personal injuries and incurred medical bills and expenses as a result of
an automobile accident and reached the $ 2,000 initial PIP exhaust[ion] level.”
ANALYSIS
To survive a motion to dismiss, the plaintiff’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level . . . [based] on the assumption that all the
allegations in the complaint are true (even if doubtful in fact) . . . .” Iannacchino v. Ford Motor
Co., 451 Mass. 623, 636 (2008), citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-1965
(2007). In other words, “[w]hile a complaint attacked by a . . . motion to dismiss does not need
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detailed factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions . . . .” Iannacchino, 451 Mass.
at 636, quoting Bell Atl. Corp., 127 S. Ct. at 1966. Dismissal under Mass. R. Civ. P. 12(b)(6) is
proper where a reading of the complaint establishes beyond doubt that the facts alleged do not
support a cause of action which the law recognizes, such that the plaintiff’s claim is legally
insufficient. Nguyen v. William Joiner Center for the Study of War and Social Consequences,
450 Mass. 291, 295 (2007).
DeOliveira’s Complaint asserts substantially similar facts and claims to those presented
in a case in which the Appeals Court affirmed, in an unpublished Rule 1:28 decision, a decision
of the District Court in favor of the insured. Kirby v. Liberty Mutual Ins. Co., 89 Mass. App. Ct.
1136, 2016 WL 4162351, at *1-*3 (August 5, 2016) (Rule 1:28), rev. den., 476 Mass. 1106
(Nov. 30, 2016). In Kirby, the plaintiff sustained injuries in an automobile accident and incurred
$ 13,387.56 in medical expenses. Id. at *1. At the time of the accident, plaintiff was insured
under a health insurance policy and a Massachusetts automobile policy issued by Liberty that
provided $ 8,000 in PIP benefits and $ 5,000 in MedPay coverage. After the accident, Liberty
notified plaintiff that her $ 2,000 in PIP coverage was exhausted and that she should submit all
outstanding medical bills to her health insurance provider.4 As a result, her health insurer paid
$ 4,956.67 in additional medical expenses. The health insurer executed a lien for that amount in
the civil action that Kirby filed against a third-party tortfeasor. Plaintiff later paid $ 4,956.67 to
her health insurer to satisfy and release the lien. Thereafter, plaintiff submitted a claim to Liberty
4 Liberty paid a total of $ 3,283.92 in PIP benefits for medical expenses that plaintiff
incurred–$ 2,000 in initial PIP benefits and $ 1,283.92 in PIP benefits to cover copayments and
other medical expenses denied by plaintiff’s health insurer.
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under the MedPay portion of her automobile insurance policy for reimbursement of the
$ 4,956.67. Liberty refused coverage under MedPay, and plaintiff filed suit for breach of contract
against Liberty in the District Court. After a hearing, a District Court judge allowed plaintiff’s
motion for summary judgment, and Liberty appealed to the Appellate Division of the District
Court, which affirmed the summary judgment ruling in favor of plaintiff. See Kirby v. Liberty
Mutual Ins. Co., 2014 Mass. App. Div. 190 (Sept. 25, 2014). Liberty appealed, and the Appeals
Court affirmed. See Kirby v. Liberty Mutual Ins. Co., 2016 WL 4162351 at *1. The Appeals
Court noted that the case was governed in all material respects by Golchin v. Liberty Mut. Ins.
Co., 460 Mass. 222 (2011) (Golchin I ), and Golchin v. Liberty Mut. Ins. Co., 466 Mass. 156
(2013) (Golchin II ). Kirby v. Liberty Mutual Ins. Co., 2016 WL 4162351 at *2 (discussing
Golchin I and Golchin II). Ultimately, the Appeals Court concluded that plaintiff was entitled to
MedPay benefits because she “incurred” the $ 4,956.67 in expenses and PIP benefits in excess of
the $ 2,000 paid were not available to her. Id. at *2-*3.
DeOliveira pleads facts in her Complaint that are closely similar to the factual scenario in
Kirby.5 In light of Kirby, 6 which I find persuasive, I conclude that DeOliveira’s Complaint
properly asserts claims for breach of contract, declaratory judgment, and violation of Chapter
5 Here, as in Kirby, DeOliveira asserts in her Complaint that she “incurred” additional
medical expenses after her PIP benefits were exhausted or unavailable. See Kirby v. Liberty
Mutual Ins. Co., 2016 WL 4162351 at *1-*2. See also Golchin II, 466 Mass. at 163
(determining that medical expenses were clearly “incurred” within plain language of auto policy,
first by plaintiff’s health insurer, and later when plaintiff satisfied lien placed by her health
insurer, and thus, plaintiff was entitled to recover MedPay benefits under auto policy).
6 As Kirby progressed through the courts, a total of seven judges agreed that Liberty was
liable for breach of contract by failing to provide plaintiff with MedPay coverage.
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93A.7 See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008) (noting that an unpublished
memorandum and order issued pursuant to Appeals Court Rule 1:28 has persuasive, but not
precedential, authority). See also Bonin v. Amica Mutual Ins. Co., SUCV2014-04073-BLS2,
slip. op at 1 (Mass. Super. Ct. Sept. 9, 2015) (Sanders, J.) (denying defendant insurer’s motion to
dismiss claims for breach of contract and violation of Chapter 93A based on failure to provide
MedPay coverage under automobile insurance policy). Accordingly, Liberty’s motion to dismiss
is denied.
CONCLUSION
Defendant Liberty Mutual Insurance Company’s Motion to Dismiss is DENIED.
By the Court,
______________________________
Edward P. Leibensperger
Justice of the Superior Court
Dated: September 29, 2017
7 At oral argument, counsel for Liberty acknowledged that I would have to disagree with
the reasoning in Kirby to grant Liberty’s motion to dismiss. I do not disagree.
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Posted by Stephen Sandberg - October 5, 2017 at 4:32 pm

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Safety Insurance Company v. Chau, et al. (Lawyers Weekly No. 09-005-17)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2015-02554-BLS2
SAFETY INSURANCE COMPANY
vs.
LAURA CHAU &
NAKOUZI ENTERPRISES, INC. d/b/a UNION AUTOMOTIVE
MEMORANDUM OF DECISION AND ORDER
ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Safety Insurance Company (Safety) filed this action to determine its coverage obligations with respect to a motor vehicle accident which is the subject of separate litigation. The defendant Laura Chau was allegedly injured in that accident and in that separate lawsuit, seeks to recover against Nakouzi Enterprises, Inc. d/b/a Union Automotive (Nakouzi), which is Safety’s insured. The Complaint seeks a declaration both as to Safety’s duty to defend Nakouzi and its duty to indemnify. The matter is now before this Court on Safety’s Motion for Summary Judgment. This Court concludes that Safety does have a duty to defend, but that the obligation to indemnify cannot be decided at this juncture because of fact disputes as to what caused the accident.
BACKGROUND
The summary judgment record contains the following relevant facts. In June 2015, Chau filed a lawsuit against David Lam and Nakouzi in Plymouth Superior Court seeking to recover for injuries she suffered in an accident that occurred while she was driving Lam’s car. See Chau v. Lam et al., Civ. No. 2015-00589 (the Plymouth Action). The complaint filed in the
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Plymouth Action alleges that, prior to the accident, Nakouzi had issued a Certificate of Inspection for the vehicle despite the fact that its tires had heavily worn treads that did not comply with the state’s safety requirements for tire tread depth. As a result of Nakouzi’s negligence, Chau mistakenly believed that Lam’s vehicle was safe to drive and that the accident occurred because the worn tire treads led her to lose control of the car and collide with oncoming traffic. The Plymouth Action is still pending.
At the time of the accident, Nakouzi was the named insured on a Massachusetts garage insurance policy issued by Safety (the Policy). The Policy provided two types of liability coverage for injuries resulting from “garage operations” — specifically, a) coverage for injuries from garage operations involving the ownership, maintenance and use of covered “autos,” and b) coverage for injuries from garage operations other than the ownership, maintenance, and use of covered “autos.” The parties agree that Lam’s car was not a covered auto, so it is the second type of liability coverage that is relevant here. As to both types of liability coverage, Safety was required to pay all sums its insured was legally required to pay as damages for bodily injury or property damage provided that such injury or damage was “caused by an ‘accident’ and resulting from ‘garage operations.’” Garage Operations was defined to include “all operations necessary or incidental to a garage business.” See Section IX.H, page 23 of Policy. If suit was filed against Nakouzi seeking damage for bodily injury or property damage, Safety acknowledged that it had a duty to defend, provided that such injury or damage was covered by the Policy. See Section IV.A, page 5 of Policy (“We have the right and duty to define any ‘insured’ against a ‘suit’ asking for these damages even if it is without merit”).
3
After Chau filed the Plymouth Action, Nakouzi sought coverage from Safety under the Policy. Safety agreed to defend Nakouzi in Chau’s suit under a reservation of rights, then filed the instant action.
DISCUSSION
It is well established that the duty to defend and the duty to indemnify are distinct and independent obligations. See A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 445 Mass. 502, 527 (2005). The duty to defend arises at the outset of litigation against the insured. It is triggered as long as the allegations in the complaint brought in the underlying action “are reasonably susceptible of an interpretation that states or roughly sketches a claim covered by the policy terms.” Billings v. Commerce Ins. Co., 458 Mass. 194, 200 (2010). “There is no requirement that the facts alleged in the complaint specifically and unequivocally make out a claim within the coverage.” Id. at 201, quoting Sterilite Corp. v. Continental Cas. Co., 17 Mass. App. Ct. 316, 319 (1983). The duty to indemnify, in contrast, arises at the close of litigation. It is triggered “when a judgment within the policy coverage is rendered against the insured.” Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass. 7, 10 (1989). Whether the duty exists is determined based on the actual facts proven at trial, rather than what may have been suggested by the general allegations in the complaint. See id. at 10-11. The duty to indemnify is thus narrower than the duty to defend. See Transamerica Ins. Co. v. KMS Patriots, 52 Mass. App. Ct. 189, 196 (2001). Accordingly, “[a]n obligation to indemnify does not automatically follow from the existence of a duty to defend.” Polaroid Corp. v. The Travelers Indem. Co., 414 Mass. 747, 762 n.19 (1993). That is, an insurer may have a duty to defend but ultimately have no duty to indemnify
4
As noted above, the Policy provides liability coverage for injuries “caused by an ‘accident’ and resulting from ‘garage operations.’” “Garage operations” is defined to include, among other things, “all operations necessary or incidental to a garage business.” Safety argues that it has no duty to defend because Nakouzi’s inspection was not a “garage operation.” If there is no duty to defend, then it necessarily follows that there can be no duty to indemnify.
There are no Massachusetts appellate decisions interpreting the relevant provisions. Although the parties cite cases from the Massachusetts federal district court and other jurisdictions, they are not particularly helpful in that they involve different policy language or arise from different circumstances. Thus, to determine whether Safety’s reading of the Policy is correct, this Court relies on the general rules that govern the interpretation of insurance contracts.
When interpreting an insurance policy, the Court construes the policy’s words in “their usual and ordinary sense.” Hakim v. Massachusetts Insurers’ Insolvency Fund, 424 Mass. 275, 280 (1997). Each word “must be presumed to have been employed with a purpose and must be given meaning and effect whenever practicable . . . without according undue emphasis to any particular part over another.” Boston Gas Co. v. Century Indem. Co, 454 Mass. 337, 355 (2009). (internal citations and quotations). If the meaning of the policy language is unclear, the Court considers “what an objectively reasonable insured, reading the relevant policy language, would expect to be covered.” Metropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 635 (2013), quoting Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 700 (1990). Applying these principles, the Court concludes that the Policy requires Safety to defend Nakouzi against the claims Chau asserts against it because the inspection constituted a “garage operation” as defined by the Policy.
5
The Policy defines “garage operations” expansively to include not just activities “necessary” to a garage business but also “all” activities that are “incidental” to the business, i.e., ones that play a small or even insignificant role. See Black’s Law Dictionary (10th ed. 2014) (defining incidental as “[s]subordinate to something of greater importance; having a minor role”); The American Heritage Dictionary of the English Language (5th ed. 2017) (defining incidental as “of a minor, casual, or subordinate nature”). In this Court’s view, inspections are clearly incidental to a garage’s operations. Certainly, it is not at all unusual for motor vehicle service stations and automobile repair shops to conduct vehicle inspections. An insured in Nakouzi’s position, reading the relevant Policy language, would reasonably expect that accidents arising from inspections conducted at his garage would be covered. Since Chau in the Plymouth Action alleges that her accident was caused by Nakouzi’s negligent inspection, Safety is therefore required to defend Nakouzi.
As Safety acknowledged at the hearing on this motion, its assertion that it has no duty to indemnify is based on its contention that it has no duty to defend. It conceded that, if the Court finds that it has a duty to defend Nakouzi, the Court cannot make a summary determination on whether Safety has a duty to indemnify because Chau’s lawsuit against Nakouzi remains pending. Summary judgment regarding Safety’s indemnification obligations is therefore inappropriate.
CONCLUSION AND ORDER
For all of the foregoing reasons, Safety’s Motion for Summary Judgment that is has no duty to defend is DENIED. Because there are no material facts in dispute regarding that duty, it is further ORDERED, however, that judgment enter in favor of Nakouzi declaring that Safety does have a duty to defend in the Plymouth Action. Because the duty to indemnify cannot be
6
determined until the Plymouth Action is resolved, this Court schedules this matter for December 5, 2017 at 2:00 p.m. so that it may be apprised of the status of that action. If the parties wish to have a Rule 16 conference before that date, they may request an earlier date from the court clerk.
______________________________
Janet L. Sanders
Dated: September 15, 2017 Justice of the Superior Court read more

Posted by Stephen Sandberg - October 4, 2017 at 8:20 am

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Casella Waste Systems, Inc., et al. v. Steadfast Insurance Company (Lawyers Weekly No. 09-008-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 2016-2521 BLS 1
CASELLA WASTE SYSTEMS, INC. et al1
vs.
STEADFAST INSURANCE COMPANY
MEMORANDUM AND ORDER ON STEADFAST INSURANCE COMPANY’S
MOTION FOR SUMMARY JUDGMENT
This is an insurance coverage dispute between a company engaged in the landfill business
and its insurer. The insurer, defendant Steadfast Insurance Company, issued a policy called Z
Choice Pollution Liability (the “Policy”) to plaintiff, Casella Waste Systems, Inc., naming
Casella and its subsidiary, Southbridge Recycling & Disposal Park, Inc. (“SRDP”), as insureds.
The Policy covers claims made against the insureds during the Policy period of April 30, 2015 to
June 15, 2016. Following notification by Casella in October 2015 to the Massachusetts
Department of Environmental Protection (“DEP”) of the detection of pollution flowing from
Casella’s property to neighboring property, a claim by DEP, as defined in the Policy, arose.
Casella sought insurance coverage for the claim. Steadfast denied coverage. Casella sued for
breach of contract, violation of G.L. c. 93A and for a declaration of coverage. Steadfast now
moves for a summary judgment declaring there is no coverage under the Policy. For the reasons
described below, summary judgment must be denied because there are material issues of fact that
1 Southbridge Recycling & Disposal Park, Inc.
1
are genuinely in dispute.
BACKGROUND
The following facts are taken from the parties’ Statement of Undisputed Material Facts
and Responses Thereto (“SUMF”), supplemented by documents and affidavits in the summary
judgment record.
The coverage at issue under the Policy is what was provided under Coverage C: Cleanup
Costs – New Pollution Event. Under Coverage C, Steadfast is obligated to pay “cleanup costs” to
the extent resulting from a “new pollution event” that migrates beyond the boundaries of a
“covered location” if that “new pollution event” is first “discovered” during the policy period.
The obligation to pay includes “cleanup costs” that the insured is legally obligated to pay
resulting from a third-party “claim.” The Policy also contains an exclusion from coverage for a
“known pollution event.” The words in quotes are defined terms in the Policy.
Casella seeks to be reimbursed and indemnified by Steadfast for all past and future
cleanup costs incurred on account of a claim by DEP. There is no dispute that (i) Casella incurred
cleanup costs, as defined, (ii) arising from migration of pollution from a covered property, as
defined, and (iii) Casella received and reported to Steadfast a claim, as defined, coming from
DEP. The dispute between the parties that is the crux of this lawsuit is whether the DEP claim
resulted from a “new pollution event” that first commenced in the Policy period and was not
known by Casella prior to the commencement of the Policy
The DEP claim concerns a landfill in the Town of Southbridge, Massachusetts operated
by plaintiff/insured SRDP. Beginning in 2002, the landfill began an annual residential well
monitoring program under which residents within ½ mile of a portion of the landfill could
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request testing of their potable wells. On October 23, 2015, Casella, by its consultant, gave notice
to DEP that SRDP’s well testing in September 2015 had detected certain contaminants above
applicable standards in the wells of three residences. The three residence were along a road called
H. Foote Road and the addresses were 65, 74 and 81 H. Foote Road. Of the three residences, it
was only at 65 where two contaminants – – trichloroethene (“TCE”) and 1,1-dichloroethene
(“DCE”) were detected in the well water at concentrations greater than the Massachusetts
Maximum Contaminant Level (“MMCL”). In fact, the detection of TCE and DCE at 65 H. Foote
Road was nearly double the applicable MMCLs. This was the first time since the well testing
program had begun that TCE and DCE were detected at concentrations above the MMCLs in any
residential well that participated in the program. The residence at 65 H. Foote Road had not
participated in the well testing program until December 2014, and its drinking water was not
tested until September 24, 2015.
The notice to DEP also referenced that another contaminant, 1,4 dioxane (“Dioxane”),
was detected in the well water of all three residence at 65, 74 and 81 H. Foote Road. The
concentration levels were all above the Massachusetts Drinking Water Guideline. Also, TCE and
DCE were found in the water of 81 H. Foote Road at levels below MMCL.
Prior to the September, 2015 detection of TCE and DCE at levels above MMCL at 65 H.
Foote Road, there had been detections, as part of the well testing program, of TCE and DCE
below MMCL, as well as detections above reportable conditions of Dioxane in the drinking
water supply of some of the residences on H. Foote Road. None of these detections, however,
caused Casella to be assigned a release tracking number under the 21-E Program or to be
designated as a potentially responsible party. No claim was asserted by DEP and no remedial
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action was required because of these earlier detections.
As a result of the notice to DEP in October 2015, the DEP for the first time assigned a
Release Tracking Number pursuant to its 21-E Program and identified SRDP as a potentially
responsible party for cleanup costs. Casella prepared, as required by DEP, an Immediate
Response Action Plan which was subsequently approved by DEP. In March 2017, Casella
reached an agreement in principle with the Town of Southbridge, the Town of Charlton and the
DEP to resolve the DEP claim. The agreement in principle was later finalized by way of an
Administrative Consent Order in May 2017, providing, among other things, for the sharing of
costs between DEP and SRDP of up to $ 10 million to install a municipal waterline in the Town
of Charlton. Casella became legally obligated to pay cleanup costs and take other remedial
action. Casella incurred more than $ 2.5 million in cleanup costs in connection with the DEP
claim and expects to incur additional costs.
On December 15, 2015, Casella provided notice to Steadfast of an occurrence or claim by
attaching a letter from Casella’s consultant to DEP. By letter dated April 8, 2016, Casella
notified Steadfast of the DEP claim. Steadfast denied coverage for the DEP claim, by letter dated
April 27, 2016, based on the “known pollution event” exclusion. This lawsuit followed.
DISCUSSION
A claim cannot be resolved on a motion for summary judgment where “a reasonable jury
could return a verdict for the nonmoving party.” Dennis v. Kaskel, 79 Mass. App. Ct. 736, 741
(2011), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For this reason, in
evaluating the motion for summary judgment the court “must . . . draw all reasonable
inferences” from the evidence presented “in favor of the nonmoving party,” as a jury would be
4
free to do at trial. Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 119 (2010). A request
for summary judgment must be denied where a claim turns on disputed issues of fact or on
disputed inferences from admitted facts. See Molly A. v. Commissioner of Dept. of Mental
Retardation, 69 Mass. App. Ct. 267, 284 (2007)(“summary judgment cannot be granted if the
evidence properly before the motion judge reveals a genuine issue of disputed material fact”);
Flesner v. Technical Communications Corp., 410 Mass. 805, 811-812 (1991) (“Where a jury can
draw opposite inferences from the evidence, summary judgment is improper.”).
Here, there are at least two major disputes of fact that are material to the legal issue of
whether insurance coverage exists under the Policy. Those disputes are (1) whether a relevant
“pollution event” was known to a “responsible insured” prior to the commencement of the
Policy, and (2) whether the “claim” submitted by Casella to Steadfast resulted from a “new
pollution event.” The disputes coalesce around the events at 65 Foote Road.
(1) Knowledge of Pollution Event
In SUMF Nos. 19, 20 and 45, Steadfast asserts that a 2006 collection of samples of water
at 65 H. Foote Road showed some level of TCE and DCE. Steadfast claims that the samples were
part of the residential well program of testing by SRDP. Casella denies these facts, based on
affidavits stating that the 2006 detections were not part of its well program. The affidavits aver
that the 2006 results were not known by Casella until late 2015. In SUMF No. 85, a statement of
fact submitted by Casella, Steadfast then admits that Casella was not aware of the 2006 report of
TCE and DCE at 65 H. Foote Road before April 2015 (the commencement of the Policy). This
contradiction suggests an unresolved issue of fact. Moreover, Steadfast contends in response to
SUMF No. 85 that detection by Casella’s well testing program prior to 2015 at other residences
5
on H. Foote Road revealed at least some level of TCE and DCE in the water migrating to the
residences along H. Foote Road. While not stated with precision, Steadfast appears to argue that
the known pollution along H. Foote Road may be sufficient to ascribe knowledge of pollution at
65 H. Foote Road to Casella.
Thus, the facts of what did Casella know and when did it know it, are at issue. The
insurance provided by the Policy does not apply to a “pollution event” that was known to Casella
before the commencement of the Policy. A “pollution event” is defined in the Policy to mean
“the discharge, release, or escape of any solid, liquid, gaseous or thermal irritant, contaminant or
pollutant . . . into or upon land . . . or any watercourse or body of water including groundwater.”
Whether there was a pollution event known to Casella prior to the commencement of the policy
at 65 H. Foote Road or at any other relevant residences presents factual issues that must be
determined by a jury.
(2) What Caused the Claim
The question of what caused DEP’s claim brings the focus to 65 H. Foote Road. That is
because Steadfast’s obligation to pay under the Policy is triggered when Casella is legally
obligated to pay “as a result of” a “claim.”
The Policy defines “claim” as a “written demand or written notice received by the
‘insured’ alleging liability or responsibility on the part of the ‘insured.’” There does not appear to
be any dispute that the “claim” in this case is the assertion of liability of SRDP and Casella by
DEP.2 It is the position of Casella that the claim by DEP “resulted from” (quoting the language of
2 On March 9, 2016, Casella provided Steadfast with notice of a letter from legal counsel
to residents in the surrounding area of H. Foote Road. That letter threatened a lawsuit under
federal law for the alleged contamination of drinking water. By letter dated April 5, 2016,
6
the Policy) the discovery in September 2015, of TCE and DCE at levels in excess of MMCL at
65 H. Foote Road. Stated another way, Casella contends that but for the discovery of high levels
of TCE and DCE at 65 H. Foote Road, there would not have been a DEP enforcement proceeding
or a claim at all. In SUMF No. 79, Casella states “[i]t was not until the detection in the drinking
water of TCE and 1,1 DCE above the MMCLs – – which had never occurred previously as part of
the Well Program – – that Casella was faced with a Claim in connection with the Well Program
identifying SRDP as a PRP under M.G.L. c. 21E and mandating that Casella incur extensive
‘cleanup costs’ in the form of a submission of an Immediate Response Action plan and the
performance of extensive remediation in accordance with M.G.L. c. 21E.” Steadfast disputes
SUMF No. 79. In addition, in response to Steadfast’s SUMF Nos. 18 to 44, wherein Steadfast
described detections on dates prior to the inception of the Policy of some level of TCE and DCE
and Dioxin at residences on H. Foote Road, other than number 65, Casella responded that “the
Mass DEP Claim was not as a result of those detections.”
In sum, Casella asserts that (1) it had no knowledge prior to September 2015 of pollution
migrating to 65 H. Foote Road, and (2) the “claim” occurred as a result of what was discovered
in September 2015 at 65 H. Foote Road, and absent the discovery at 65 H. Foote Road there
would have been no claim. The latter assertion will, ultimately, depend on Casella’s ability to
prove what would have occurred in a hypothetical situation: i.e., if only the Dioxane test results
for 74 and 81 H. Foote Road had been reported rather than in combination with the severe
readings of TCE and DCE from 65 H. Foote Road. I find that the facts asserted by Casella, as to
Steadfast denied coverage under the Policy for this potential claim based upon the “known
pollution event” exclusion. While these events are recited at ¶¶ 35 to 37 of the Complaint,
Casella asserts no claim in this lawsuit arising from this correspondence.
7
the lack of any enforcement by DEP prior to the October 2015 report of findings at 65 H. Foote
Road, and the immediate assertion of a claim arising after the October 2015 report, give rise to a
reasonable inference that the claim by DEP resulted from a “new pollution event” at 65 H. Foote
Road.3 The reasonable inference may be rebutted by evidence in the correspondence and
otherwise indicating that DEP required remedial action with respect to 74 and 81 H. Foote Road,
but a triable issue is presented. Moreover, it may be that some of the “claim” asserted by DEP
resulted from pollution at locations other than 65 H. Foote Road as to which Casella was aware
prior to 2015. In that case, a question of allocation of cleanup costs to a covered claim (65 H.
Foote Road) and other locations that may not be covered because of the “known pollution event”
exclusion, may have to be determined. Summary judgment is not available to decide those fact
issues.
CONCLUSION
For the reasons stated above, Steadfast’s Motion for Summary Judgment is DENIED.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: September 7, 2017
3 A “new pollution event” is defined in the Policy to mean “a ‘pollution event’ that first
commences after the ‘delimitation date.’” The delimitation date is April 30, 2015.
8 read more

Posted by Stephen Sandberg - October 4, 2017 at 1:11 am

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Buffalo Water 1, LLC v. Fidelity Real Estate Company, LLC (Lawyers Weekly No. 12-103-17)

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss.                                                                                   SUPERIOR COURT

                                                                                                             SUCV2017-1584-BLS 2

             BUFFALO WATER 1, LLC

Plaintiff

vs.

 

FIDELITY REAL ESTATE COMPANY, LLC

Defendant

MEMORANDUM OF DECISION AND ORDER

ON DEFENDANT’S MOTION TO DISMISS

 

This is an action challenging an independent appraisal of property as provided by an agreement between the parties, two sophisticated entities with experience in owning and leasing real estate.  The plaintiff, Buffalo Water 1, LLC (Buffalo) is the owner of the property, located at 7 Water Street in downtown Boston (the Property).   The defendant Fidelity Real Estate Company LLC (Fidelity) occupied the Property under a long term lease with an option to purchase the Property in the final year of the lease as set forth in an Option Agreement.    The Option Agreement sets the purchase price at 95 percent of the “fair market value” (FMV) or $ 16,275,000, whichever is greater.  If the parties could not agree upon the FMV, the Option Agreement set forth the specific appraisal process that the parties were to follow.   Fidelity timely exercised its option to purchase and, with the parties unable to agree to the FMV,   complied with the appraisal process, which included an independent appraisal. The Verified Complaint attacks the validity of the independent appraisal, contending among other things that the entity that employed the individual appraiser did not disclose a prior business relationship that it had with Fidelity. read more

Posted by Stephen Sandberg - August 3, 2017 at 10:18 pm

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D & H Distributing Company v. Commissioner of Revenue (Lawyers Weekly No. 10-124-17)

Posted by Stephen Sandberg - August 1, 2017 at 2:18 am

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Philadelphia Indemnity Insurance Company v. National Union Fire Insurance Company of Pittsburgh, PA (Lawyers Weekly No. 12-083-17)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
NO. 2016-00045 BLS1
PHILADELPHIA INDEMNITY INSURANCE COMPANY
vs.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA
MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Philadelphia Indemnity Insurance Company (PIIC) and defendant National Union Fire Insurance Company (National Union) each issued insurance policies to North Suffolk Mental Health Associated, Inc. (North Suffolk). PIIC issued a Commercial General Liability (CGL) policy; and National Union issued a Workers’ Compensation and General Liability (Workers’ Comp.) policy. In a case filed in the Middlesex Superior Court in 2011, captioned Estate of Stephanie Moulton v. Nicholas Puopolo, et al. (the Underlying Action), the plaintiff estate brought suit against eighteen directors of North Suffolk (the Director Defendants) asserting claims arising out of the work related death of Ms. Moulton, a North Suffolk employee. The Director Defendants tendered the claim to both PIIC and National Union. PIIC defended the claim (under a reservation of right) and National Union declined coverage. The Director Defendants’ motion to dismiss the Underlying Action was eventually allowed, after appeal to the Supreme Judicial Court (SJC). See Estate of Moulton v. Puopolo, 467 Mass. 478 (2014) (Moulton). In this action, PIIC has filed suit against National Union asserting claims for
2
declaratory judgment and equitable subordination and seeking to recover the cost of its successful defense of the Underlying Action. The case is now before the court on the parties’ cross-motions for summary judgment. For the reasons that follow, National Union’s motion is ALLOWED, and PIIC’s motion is DENIED.
ADDITIONAL FACTS
The following additional facts are undisputed.
Ms. Moulton was an employee of North Suffolk, a charitable corporation that provides mental health and rehabilitation services. She was assaulted and killed by a patient while performing her job. As explained in Moulton, her estate (the Estate) filed the Underlying Action against the directors of North Suffolk and others. It alleged claims for willful, wanton, reckless, malicious and grossly negligent conduct and, also, as to the Director Defendants, breach of fiduciary duty. The complaint alleged that the Director Defendants “effectuated” policies and failed to “effectuate” other policies that caused Ms. Moulton’s death. Id. at 480. They “moved to dismiss the complaint chiefly on the grounds that, with respect to the wrongful death action, they are immune from suit, as Ms. Moulton’s employer, under the exclusive remedy provision, G.L.c. 152, § 24 of the Workers’ Compensation Act (act), and, with respect to the breach of fiduciary duty claim, they owed Moulton no such duty.” Id. The Superior Court denied the motion to dismiss; the director defendants sought interlocutory review under the doctrine of present execution; and the case was transferred to the SJC.
As relevant to this case, the SJC found that: “The complaint, fairly read, alleges that the Director Defendants, acting qua directors rather than in any other capacity, set and enforced misguided and wrongful corporate policies that resulted in Mouton’s death while in the course of
3
her employment. There is no allegation that the directors undertook any action without a formal board meeting or vote, . . . to the extent that the complaint alleges that Moulton’s death arose from the adoption of or failure to adopt corporate policies, it alleges conduct by the charitable corporation that could have been occasioned only by the vote of its directors acting collectively as a board.” Id. at 488-489. It then held that, “we conclude that the director defendants were Moulton’s employer for purposes of the exclusivity provision of the act. As Moulton’s employer, the director defendants are therefore immune from suit for workplace injuries due to actions taken by the board.” Id. at 490-491.1
The Worker’s Comp. Policy
The National Union Workers’ Comp. policy was in effect when the Moulton claim was asserted. It is a standard form of Worker’s Comp. policy issued in Massachusetts. It has two coverage parts. Part One provides for payment of any benefits “required of you by the workers compensation law;” and that National Union has “the right and duty to defend at our expense any claim, proceeding or suit against you for benefits payable by this insurance. . . . We have no duty to defend a claim, proceeding or suit that is not covered by this insurance.”
Part Two provides Employers’ Liability Insurance. As explained by the SJC in HDH Corporation v. Atlantic Charter Ins. Co., 425 Mass. 433, (1997) (Atlantic Charter), the seminal decision addressing the coverage provided under a workers’ compensation policy, discussed at greater length infra: “Part Two, the employers’ liability portion of the insurance policy, is intended to provide coverage in the rare circumstance in which an employee who has affirmatively opted out [of the workers’ compensation benefits system at the time of hire] brings a tort action for personal injuries.” Id. at 439 n.11.
1 The SJC also held that, “as Moulton’s employer, the director defendants, acting as a board, had no fiduciary duty to her.” Id. at 493.
4
The declarations page of the Workers’ Comp. policy identifies North Suffolk as the named insured. There are no policy provisions or endorsements that broaden the definition of named insured to include directors, officers, or employees.
DISCUSSION
PIIC first argues that since, in Moulton, the SJC held that “the director defendants were Moulton’s employer for purposes of the exclusivity provision of the act,” they might also be insureds under the Workers’ Comp. policy, even though the policy terms do not extend coverage to them; or, at least, there is a “possibility” that they would be held to be insureds in a declaratory judgment action addressing coverage issues under the Workers’ Comp. policy. PIIC next argues that there then also exists a “possibility” that the claims asserted by the Estate in the Underlying Action were covered under either Part One or Part Two of the Workers’ Comp. policy coverage provisions. PIIC then goes on to cite Billings v. Commerce Ins. Co., 458 Mass. 194, 200-201 (2010) for the long established principle that: “In order for the duty of defense to arise, the underlying complaint need only show through general allegations, a possibility that the liability claim falls within the insurance coverage.” (Emphasis supplied.) According to PIIC, given this possibility of coverage, National Union had a duty to defend the Director Defendants in the Underlying Action.
The court finds it doubtful that the SJC’s holding that, under the “so-called exclusivity provision of the act,” the directors of a corporation cannot be sued for work place injuries in the Superior Court, when they were alleged to have done nothing more than vote on corporate policies, could be interpreted to mean that the directors were additional insureds under a workers’ compensation policy. However, the court declines to address that argument. This is
5
because the SJC’s decision in Atlantic Charter clearly establishes that National Union’s Workers’ Comp. policy did not provide coverage for the claims asserted by the Estate in the Underlying Action.
Claims Asserted under Part One of the Workers’ Comp. Policy
In Atlantic Charter, an employee sued its former employer HDH Corporation (HDH) for personal injuries arising from her allegedly wrongful termination; her husband also asserted claims for loss of consortium. HDH tendered the claim to its workers’ compensation carrier, Atlantic Charter, which declined coverage. The case went to arbitration and the plaintiff employee recovered. HDH then sued Atlantic Charter, claiming coverage under Part One of the policy. The SJC explained the extent of coverage provided under Part One of a workers’ compensation policy as follows:
The terms of Part One of the policy clearly limit defense and indemnity of the employer to claims for benefits required by the workers’ compensation statute. However, the employee brought a civil action seeking monetary damages, and made no claim for workers’ compensation benefits. Indeed, no matter what the allegations of the complaint, as a matter of law, workers’ compensation benefits cannot be recovered by instituting a civil action. A claim for benefits must be brought before the department and adjudicated through the statutorily prescribed workers’ compensation system. See Neff v. Commissioner of the Dep’t of Indus. Accs., 421 Mass. 70, 74 (1995) (describing procedural course for the adjudication of workers’ compensation dispute through the Department of Industrial Accidents). See also Alecks’ Case, 301 Mass. 403, 404 (1938) (under the workers’ compensation statute, an employee “acquires a right to compensation for personal injury as provided in that act, to be enforced by claim against the insurer filed with the Industrial Accident Board…. [T]he policy of the act is to deprive [the employee] of all right of action in tort against his employer for damages for an injury within the scope of the [workers’] compensation act”).
The record demonstrates that a claim for benefits was never initiated by the employee, as mandated by G.L. c. 152, § 10. Accordingly, Atlantic is correct that it had no duty to defend the civil action because the complaint did not state a claim that could result in liability which Atlantic would be obligated to pay under any reasonable interpretation of Part One of the policy. See, e.g., Jimmy’s Diner, Inc. v. Liquor Liab. Joint Underwriting Ass’n of Mass., 410 Mass. 61, 65 (1991).
425 Mass. at 433.
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In Atlantic Charter, the SJC also explained the important public policy considerations underlying the legislation that it was interpreting:
Public policy also supports our decision. The fundamental purpose of the workers’ compensation system is to make funds more readily available to injured employees. Accordingly, the Commonwealth requires all employers to provide workers’ compensation benefits to their employees. See G.L. c. 152, § 25A. As amici point out, the cost of mandatory workers’ compensation insurance is a significant aspect of the business climate of the Commonwealth. Recent legislative reforms have sought to lower the insurance rates employers must pay to provide the security of workers’ compensation benefits to their employees. See St.1991, c. 398. Requiring workers’ compensation insurers to defend civil actions outside the workers’ compensation system would represent an unwarranted expansion of coverage historically understood as provided under this mandatory form of insurance, a result which would increase insurance costs for employers, and could gut the legislative scheme for workers’ compensation. See, e.g., La Jolla Beach & Tennis Club, Inc., supra at 44, 36 Cal.Rptr.2d 100, 884 P.2d 1048.
Id. at 440.
In the present case, Moulton’s estate made no claim to recover workers’ compensation benefits2; indeed, it did not sue North Suffolk, but rather its directors, in an obvious and unsuccessful attempt to recover damages and not the benefits provided under the act.3 PIIC’s argument that the SJC’s decision in Moulton overruled the express holding in Atlantic Charter that Part One of a workers’ compensation policy only provides coverage for workers’
2 The workers’ compensation act has long been held to provide the exclusive remedy by which the estate of deceased employee can recover from his employer. See McDonnell v. Berkshire St. Ry. Co., 243 Mass. 94, 95
(1922) (“The employer who is insured under the workmen’s compensation act is relieved of all
statutory liability, including that for death of an employee under the employers’ liability act”);
Cozzo v. Atlantic Refining Co., 299 Mass. 260, 262 (1938) (“Nor can an action at law be
maintained against such employer [i.e., one who is insured under the workers’ compensation law] to recover for the death of an employee resulting from such injury [i.e., one arising out of and in
the course of his employment],” citing G. L. c. 152, 68); Ferriter v. Daniel O’Connell’s Sons,
Inc., 381 Mass. at 528 (“We acknowledge that G. L. c. 152, 1[4] and 68, bar a deceased
employee’s dependents from recovering under G. L. c. 229, 2 and 2B, for loss of consortium,
as against an employer covered by G. L. c. 152”).
3 In Peerless Ins. Co. v. Hartford Ins. Co., 48 Mass. App. Ct. 561 (2000), decided shortly after Atlantic Charter, the Appeals Court addressed a coverage dispute between an employer’s general liability insurer and its workers’ compensation insurer very much like the dispute presented by this case. There the estate of a deceased employee sued the employer. The workers compensation carrier denied coverage and the general liability carrier defended the claim. The Appeals Court held that because the estate could not bring a claim against the employer for workers compensation benefits or for wrongful death, the workers’ compensation carrier had no duty to defend and no obligations to the general liability carrier.
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compensation benefits, and those benefits can only be claimed in the Department of Industrial Accidents, simply does not parse. In holding that the Estate could not bring an action against the Director Defendants based on allegations that they had voted to adopt corporate policies that allegedly contributed to Ms. Moulton’s death, the SJC was clearly not expanding the coverage provided by workers’ compensation policies. It was also not seeking to “gut” the public policy considerations underlying the statutory scheme, which were intended to reduce the costs of this mandatory insurance coverage, by saddling workers compensation insurers with potential additional costs unrelated to the employee benefits mandated by the act. Indeed, in Moulton, the SJC was not addressing insurance at all. It was only concerned with whether the Director Defendants were subject to suit at common law by an injured employee.
In a somewhat round about argument, PIIC suggests that the Appeals Court’s decision in Norfolk & Dedham Mutual Fire Ins. Co. v. Cleary Consultants, Inc., 81 Mass. App. Ct. 40 (2011) (Norfolk & Dedham) supports its position. In furtherance of its arguments that the claims asserted in the Underlying Action were not covered, National Union quoted the following sentence from Atlantic Charter: “Indeed, no matter what the allegations of the complaint, as a matter of law, workers’ compensation benefits cannot be recovered by instituting a civil action.” 425 Mass. at 439. PIIC argues that in Norfolk & Dedham, the Appeals Court noted that an insurer that provided coverage for slander, libel, and invasion of privacy could not disclaim coverage just because these common law claims were asserted together with claims for sexual harassment before the Massachusetts Commission Against Discrimination (MCAD). In fact, in that case, the Appeals Court held that those claims could be asserted as part of a claim for sexual harassment, because they are compensable under an award for emotional distress. The Court did go on to comment that even if the claims were “viewed as a misguided effort to adjudicate
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claims of slander and invasion of privacy in an improper forum, that would not affect Norfolk’s duty to defend. An insurer’s obligation to defend is not limited to valid claims; it extends even to claims potentially dismissible for lack of subject matter jurisdiction.” 81 Mass. App. Ct. at 48-49. This comment, of course, has no bearing on the statutory scheme for workers’ compensation benefits, in which a workers compensation policy insures only those benefits provided by the act, benefits that can only be awarded by the Department of Industrial Accidents. Obviously, a covered claim filed in the wrong court still gives rise to a duty to defend. An insurer could not disclaim a duty to defend because a plaintiff mistakenly filed an action in federal court, when there was no federal jurisdiction, but the policy covered the injury alleged in the complaint. A worker’s compensation insurer does not have a duty to defend a claim filed in Superior Court for damages that are expressly not covered under the workers’ compensation system.
Claims Asserted under Part Two of the Workers’ Comp. Policy
At oral argument, PIIC acknowledged that its principle argument that the “possibility” of coverage existed and this triggered National Union’s duty to defend was based on Part One of the coverage provisions. It nonetheless also asserted that a duty to defend arose under Part Two. Here, PIIC does not argue that Moulton overturned that part of Atlantic Charter in which the SJC stated that: “Part Two, the employers’ liability portion of the insurance policy, is intended to provide coverage in the rare circumstance in which an employee who has affirmatively opted out brings a tort action for personal injuries.” Rather, PIIC argues that the Estate’s amended complaint “included claims for funeral expenses, as well as for wrongful death and pain and suffering without reference to the Wrongful Death Act, and did not indicate whether Moulton’s parents were dependent upon her for financial support. Those claims arguably fell within the
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scope of claims subject to G.L. c. 152, §§ 33, 31 and/or 32, respectively, but were presumably intended to circumnavigate the Workers’ Compensation statute entirely and therefore [because there was no allegation that Moulton had waived her rights to workers’ compensation benefits] left open the question whether Moulton had preserved her common law rights in lieu of accepting Worker’s Compensation benefits.” In consequence, until it could be established that Ms. Moulton had not affirmatively opted out of workers’ compensation coverage when she began work at North Suffolk, the possibility that claims asserted in the amended complaint were covered by the Workers’ Comp. policy existed.
However, in Moulton, the SJC summarily dismissed the suggestion that an employer/defendant had to assert non-waiver of workers’ compensation benefits as an affirmative defense. It explained that the statute (G.L. c. 152, § 24) expressly provides that the employee “shall be held to have waived his right of action at common law,” if he does not provide a written notice that he is claiming his right to opt out at the beginning of his employment. Therefore, non-waiver is not an affirmative defense, but rather it is the plaintiff that must allege in the complaint that the “right to payment under the act” was waived. 467 Mass. at 484 n. 12. This was not pled in the Estate’s amended complaint (nor could it be,) and therefore the complaint alleged no facts even suggesting a claim covered by workers’ compensation insurance. “When the allegations in the underlying complaint lie expressly outside the policy coverage and its purpose, the insurer is relieved of the duty to investigate and defend the claimant.” Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass 387, 394-395 (2003) (Internal citations and quotations omitted.)
Moreover, the issue now before the court is not whether the Estate stated a cause of action against the Director Defendants that could possibly survive a motion to dismiss. This is a
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coverage case between two insurers. PIIC issued a comprehensive general liability policy to its insured, North Suffolk. It is claiming a right to equitable subrogation or contribution from National Union in its capacity as North Suffolk’s workers’ compensation carrier. Its rights to recover against National Union are no greater than North Suffolk’s rights to demand that National Union defend the Underlying Action. Clearly, North Suffolk could not demand coverage based on the absence of an allegation that Ms. Moulton had affirmatively opted out of her rights for workers’ compensation benefits, knowing full well that she had not.
ORDER
For the foregoing reasons, National Union’s motion for summary judgment is ALLOWED and PIIC’s moiton for summary judgment is DENIED. Final judgment shall enter dismissing the complaint.
_______________________
Mitchell H. Kaplan Justice of the Superior Court
Dated: June, 13 2017 read more

Posted by Stephen Sandberg - July 3, 2017 at 10:06 pm

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