Suffolk Construction Company, Inc. v. Benchmark Mechanical Systems, Inc., et al. (Lawyers Weekly No. 12-045-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1384CV01463-BLS2 ____________________ SUFFOLK CONSTRUCTION COMPANY, INC. v. BENCHMARK MECHANICAL SYSTEMS, INC. and READING CO-OPERATIVE BANK ____________________ MEMORANDUM AND ORDER ALLOWING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This case arises from Suffolk Construction Company’s mistaken payment of monies to Benchmark Mechanical Systems rather than to Benchmark’s lender, Reading Co-Operative Bank. Suffolk had hired Benchmark as a subcontractor on a large construction project. Benchmark secured a line of credit by assigning to the Bank all money that Benchmark stood to collect from Suffolk under its subcontract. Suffolk mistakenly made payments totaling $ 3,822,500.49 to Benchmark instead of to the Bank. Benchmark held and spent those monies, rather than forward them to the Bank. After Benchmark went out of business, the Bank sued Suffolk. The Supreme Judicial Court ordered Suffolk to pay the Bank the full amount it should have paid under Benchmark’s assignment. See Reading Co-Operative Bank v. Suffolk Constr. Co., 464 Mass. 543, 557 (2013). With statutory interest included, Suffolk paid the Bank a judgment totaling $ 7,640,907.45. Suffolk brought this action seeking to recover the surplus held by the Bank that was left after the Bank deducted its reasonable costs of collection and the principal and interest owed by Benchmark from the amount paid by Suffolk. In addition, Suffolk asserted common law claims against Benchmark seeking to recover the $ 3,822,500.49 in subcontract payments that Suffolk was compelled to pay a second time to the Bank. The Supreme Judicial Court recently held that Suffolk had stated viable claims against the Bank, but that its claims against Benchmark are barred by the applicable statute of limitations. See Suffolk Constr. Co. v. Benchmark Mechanical Systems, Inc., 475 Mass. 150 (2016). Suffolk now moves for summary judgment as to its right to collect the surplus of roughly $ 1.35 million being held by the Bank. The Court will ALLOW this motion. – 2 – This resolves all remaining claims. Suffolk and the Bank report that they have settled Suffolk’s claim that the Bank’s costs of collection were unreasonable, and that this settlement will take effect if the Court were to rule (as it does) that Suffolk is entitled to receive the full surplus amount that the Bank owes to Benchmark. The SJC has held that under the circumstances of this case Suffolk is entitled to equitable subrogation as against Benchmark, meaning that it may “stand in Benchmark’s shoes as to the surplus” held by the Bank. Suffolk Constr., 475 Mass. at 156. This holding is the law of the case, is binding on all parties, and may not be reconsidered now that the case has been remanded to the Superior Court. See City Coal Co. of Springfield, […]
Holyoke Mutual Insurance Company in Salem, et al. v. Vibram USA, Inc. (Lawyers Weekly No. 12-031-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-2321 BLS1 HOLYOKE MUTUAL INSURANCE COMPANY IN SALEM and MARYLAND CASUALTY COMPANY vs. VIBRAM USA, INC. MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON RECOUPMENT AND RECOVERY OF DEFENSE COSTS INTRODUCTION This action arises out of a coverage dispute between the plaintiff insurance companies, Holyoke Mutual Insurance Company in Salem (Holyoke)1 and Maryland Casualty Company (Maryland) (individually an Insurer, and collectively the Insurers), and the defendant, Vibram USA, Inc. (Vibram). Each of the insurers issued commercial general liability policies to Vibram (or its affiliate) (the Policies).2 An action was filed against Vibram in the United States District Court for the Western District of Washington at Tacoma captioned: Tefere Abebe Bikila, and others, v. Vibram, case no. 3:15-cv-05082-RBL (the Underlying Action). Vibram asserted coverage under the Policies and tendered defense of the Underlying Action to the Insurers. The 1 Holyoke has been replaced as a plaintiff in this action by its successor, Country Mutual Insurance Company. For consistency, the court will continue to refer to it as Holyoke in this Memorandum of Decision and Order. 2 Holyoke issued policies to Vibram for several years, while Maryland issued policies to an affiliate of Vibram,Vibram Five Fingers, LLC. It is not necessary to distinguish between Vibram and its affiliate for the purposes of this motion, and the court will refer to them collectively as Vibram. Additionally, for purposes of this motion the relevant policy language in all of the policies is identical, and is it also unnecessary to distinguish among policy years. The court will therefore simply refer to the Holyoke and Maryland policies collectively as the Policies. 2 Insurers each sent a “reservation of rights” letter to Vibram in which they agreed to provide its defense to the claims asserted in the Underlying Action, but also maintained that coverage did not exist under the Policies and reserved their rights to bring a declaratory judgment action and seek reimbursement for defense costs advanced. The Insurers then filed this declaratory judgment action seeking a declaration that the claims asserted against Vibram in the Underlying Action are not covered under the Policies; Vibram counterclaimed for a declaration that they are. In a Memorandum of Decision and Order on Cross-Motions for Summary Judgment and Partial Summary Judgment originally issued on August 17, 2016 (the Decision), this court held that the Policies do not provide coverage for the claims asserted against Vibram in the Underlying Action and, accordingly, there is no duty to defend. The case is now before the court on cross-motions for summary judgment addressing the issues of recoupment of defense costs advanced or, conversely, recovery of defense costs incurred before […]
Turner Construction Company v. MJ Flaherty Company (Lawyers Weekly No. 12-028-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 13-2308 TURNER CONSTRUCTION COMPANY vs. MJ FLAHERTY COMPANY MEMORANDUM OF DECISION AND ORDER ON PLAINTFF’S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF’S MOTION TO STRIKE THE EXPERT REPORT OF JACK GRANT INTRODUCTION This case arises out of a subcontract between the plaintiff, Turner Construction Company (Turner), and the defendant MJ Flaherty Company (Flaherty). Turner was the general contractor on the construction of a 23 story commercial building at 157 Berkeley Street and certain related remodeling of an adjacent building for Liberty Mutual Insurance Company (the Project). Flaherty entered into a subcontract with Turner to perform the HVAC work on the Project (the Subcontract). The initial value of the Subcontract was $ 12,462,252. Turner brought this action against Flaherty to recover damages that it alleges that it suffered when Flaherty failed to complete its work on the Project and Turner had to hire another subcontractor to complete the HVAC work.1 Flaherty has asserted counterclaims against Turner. Some of these claims are based on Turner’s failure to pay Flaherty for all of the work that it performed. Here, the amount in dispute 1 Turner’s complaint also includes allegations concerning subcontracts that Turner entered into with Flaherty on two other projects, a new building at University of Massachusetts at Lowell and a Liberty Mutual Conference Center. Turner alleges that Flaherty also failed to complete these projects causing it damage; however, the focus of this litigation appears to be the 157 Berkeley Project. It seems that Flaherty is no longer in business. 2 is complicated by the fact that in early 2013 several sub-subcontractors and material suppliers to Flaherty were not being paid and began to file notices of contract in anticipation of asserting mechanics’ liens on the Project. In response, Turner entered into a series of agreements with Flaherty pursuant to which it issued checks to Flaherty for subcontracted work that were made jointly payable to Flaherty and the vendors to insure that they were being paid out of the sums Turner was disbursing to Flaherty. Flaherty, however, also has alleged that as a result of the manner in which Turner ran the Project, Flaherty was so adversely affected that the value of Flaherty as a going concern was adversely impacted and this resulted in a $ 6.4 million reduction in Flaherty’s “new worth.” This is, of course, a paradigm claim for consequential damages. This claim is the subject of the motion now before the court. It would be an extraordinary understatement to say that this case has a tortured procedural history. Turner has filed two previous motions for summary judgment that the court was unable to decide on their merits because they […]
Turner Construction Company v. MJ Flaherty Company (Lawyers Weekly No. 12-028-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 13-2308 TURNER CONSTRUCTION COMPANY vs. MJ FLAHERTY COMPANY MEMORANDUM OF DECISION AND ORDER ON PLAINTFF’S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF’S MOTION TO STRIKE THE EXPERT REPORT OF JACK GRANT INTRODUCTION This case arises out of a subcontract between the plaintiff, Turner Construction Company (Turner), and the defendant MJ Flaherty Company (Flaherty). Turner was the general contractor on the construction of a 23 story commercial building at 157 Berkeley Street and certain related remodeling of an adjacent building for Liberty Mutual Insurance Company (the Project). Flaherty entered into a subcontract with Turner to perform the HVAC work on the Project (the Subcontract). The initial value of the Subcontract was $ 12,462,252. Turner brought this action against Flaherty to recover damages that it alleges that it suffered when Flaherty failed to complete its work on the Project and Turner had to hire another subcontractor to complete the HVAC work.1 Flaherty has asserted counterclaims against Turner. Some of these claims are based on Turner’s failure to pay Flaherty for all of the work that it performed. Here, the amount in dispute 1 Turner’s complaint also includes allegations concerning subcontracts that Turner entered into with Flaherty on two other projects, a new building at University of Massachusetts at Lowell and a Liberty Mutual Conference Center. Turner alleges that Flaherty also failed to complete these projects causing it damage; however, the focus of this litigation appears to be the 157 Berkeley Project. It seems that Flaherty is no longer in business. 2 is complicated by the fact that in early 2013 several sub-subcontractors and material suppliers to Flaherty were not being paid and began to file notices of contract in anticipation of asserting mechanics’ liens on the Project. In response, Turner entered into a series of agreements with Flaherty pursuant to which it issued checks to Flaherty for subcontracted work that were made jointly payable to Flaherty and the vendors to insure that they were being paid out of the sums Turner was disbursing to Flaherty. Flaherty, however, also has alleged that as a result of the manner in which Turner ran the Project, Flaherty was so adversely affected that the value of Flaherty as a going concern was adversely impacted and this resulted in a $ 6.4 million reduction in Flaherty’s “new worth.” This is, of course, a paradigm claim for consequential damages. This claim is the subject of the motion now before the court. It would be an extraordinary understatement to say that this case has a tortured procedural history. Turner has filed two previous motions for summary judgment that the court was unable to decide on their merits because they […]
Holyoke Mutual Insurance Company in Sale,, et al. v. Vibram USA, Inc. (Lawyers Weekly No. 12-031-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-2321 BLS1 HOLYOKE MUTUAL INSURANCE COMPANY IN SALEM and MARYLAND CASUALTY COMPANY vs. VIBRAM USA, INC. MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON RECOUPMENT AND RECOVERY OF DEFENSE COSTS INTRODUCTION This action arises out of a coverage dispute between the plaintiff insurance companies, Holyoke Mutual Insurance Company in Salem (Holyoke)1 and Maryland Casualty Company (Maryland) (individually an Insurer, and collectively the Insurers), and the defendant, Vibram USA, Inc. (Vibram). Each of the insurers issued commercial general liability policies to Vibram (or its affiliate) (the Policies).2 An action was filed against Vibram in the United States District Court for the Western District of Washington at Tacoma captioned: Tefere Abebe Bikila, and others, v. Vibram, case no. 3:15-cv-05082-RBL (the Underlying Action). Vibram asserted coverage under the Policies and tendered defense of the Underlying Action to the Insurers. The 1 Holyoke has been replaced as a plaintiff in this action by its successor, Country Mutual Insurance Company. For consistency, the court will continue to refer to it as Holyoke in this Memorandum of Decision and Order. 2 Holyoke issued policies to Vibram for several years, while Maryland issued policies to an affiliate of Vibram,Vibram Five Fingers, LLC. It is not necessary to distinguish between Vibram and its affiliate for the purposes of this motion, and the court will refer to them collectively as Vibram. Additionally, for purposes of this motion the relevant policy language in all of the policies is identical, and is it also unnecessary to distinguish among policy years. The court will therefore simply refer to the Holyoke and Maryland policies collectively as the Policies. 2 Insurers each sent a “reservation of rights” letter to Vibram in which they agreed to provide its defense to the claims asserted in the Underlying Action, but also maintained that coverage did not exist under the Policies and reserved their rights to bring a declaratory judgment action and seek reimbursement for defense costs advanced. The Insurers then filed this declaratory judgment action seeking a declaration that the claims asserted against Vibram in the Underlying Action are not covered under the Policies; Vibram counterclaimed for a declaration that they are. In a Memorandum of Decision and Order on Cross-Motions for Summary Judgment and Partial Summary Judgment originally issued on August 17, 2016 (the Decision), this court held that the Policies do not provide coverage for the claims asserted against Vibram in the Underlying Action and, accordingly, there is no duty to defend. The case is now before the court on cross-motions for summary judgment addressing the issues of recoupment of defense costs advanced or, conversely, recovery of defense costs incurred before […]
CMJ Management Company v. Wilkerson (Lawyers Weekly No. 11-038-17)
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-426 Appeals Court CMJ MANAGEMENT COMPANY[1] vs. PATRICIA WILKERSON. No. 16-P-426. Suffolk. December 1, 2016. – March 31, 2017. Present: Cypher, Maldonado, & Blake, JJ. Housing. Landlord and Tenant, Termination of lease. Summary Process. Practice, Civil, Summary process, Jury trial. Summary process. Complaint filed in the Boston Division of the Housing Court Department on September 15, 2014. The case was heard by MaryLou Muirhead, J. Stephanie Schuyler (Hoang Nguyen also present) for the tenant. John G. Hofmann for the landlord. CYPHER, J. Patricia Wilkerson appeals from a Housing Court judgment, entered following a bench trial, that awarded the plaintiff possession of an apartment in which Wilkerson resided with her three grandchildren. Wilkerson argues that the judge erred in concluding that the conduct of her juvenile grandson constituted criminal activity that materially breached her lease. In addition, Wilkerson argues that the judge erred by striking her request for a jury trial after she failed to comply with a Housing Court pretrial conference order requiring the submission of a pretrial conference memorandum. Background. We summarize the facts from the judge’s findings, reserving some facts for later discussion.[2] Wilkerson is a resident at the Harbor Point Apartments in the Dorchester section of Boston (Harbor Point). CMJ Management Company (CMJ) is Harbor Point’s managing agent. Harbor Point is a housing development combining market-rate and subsidized units. Of the 1,283 units, 400 are subsidized pursuant to the Section 8 Housing Assistance Program of the United States Housing Act, 42 U.S.C. §§ 1437 et seq. (Section 8 program). Wilkerson had custody of her fourteen year old grandson, who, along with his two adult brothers, were authorized occupants of her apartment. In July of 2014, while playing with other children in one of the common areas of the apartment complex, the juvenile grandson fired a BB gun multiple times, injuring two juvenile residents. Later that day, a Harbor Point security guard went to Wilkerson’s apartment, spoke with Wilkerson and the juvenile about the incident, and confiscated the BB gun. The parents of the injured children apparently did not pursue criminal charges. The following week Wilkerson received a notice to quit, terminating her lease. Pursuant to the Section 8 program, Wilkerson’s tenancy is subsidized by the United States Department of Housing and Urban Development (HUD). […]
Liberty Mutual Fire Insurance Company v. Casey, et al. (Lawyers Weekly No. 11-034-17)
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-32 Appeals Court LIBERTY MUTUAL FIRE INSURANCE COMPANY vs. RYAN CASEY & another.[1] No. 16-P-32. Essex. November 7, 2016. – March 29, 2017. Present: Cypher, Massing, & Sacks, JJ. Insurance, Homeowner’s insurance, Insurer’s obligation to defend. Intentional Conduct. Civil action commenced in the Superior Court Department on May 22, 2014. The case was heard by Robert A. Cornetta, J., on motions for summary judgment. Richard J. Fallon for Ryan Casey. Joseph M. Orlando, Jr., for Evan Williams. John P. Graceffa for the plaintiff. SACKS, J. Twice on the same evening, after consuming alcohol and marijuana, Ryan Casey attacked Evan Williams without warning, punching and kicking him in the face and causing him serious bodily injury. Casey later admitted that he “intend[ed] to touch” Williams, and that he understood, at least at the time of his deposition, that “[w]hen you hit somebody with a fist . . . you know you’re going to do some level of injury.” Williams subsequently made a claim under the homeowners insurance policy on Casey’s familial home. The insurer, Liberty Mutual Fire Insurance Company (Liberty Mutual), responded by commencing this action seeking a declaration that it had no duty to defend or to indemnify Casey, or to pay medical expenses for Williams, due to an exclusion in the policy for bodily injury “[w]hich is expected or intended by the insured.” On cross motions for summary judgment, a Superior Court judge ruled in favor of Liberty Mutual, concluding as a matter of law that Casey expected or intended to cause Williams bodily injury. Williams and Casey appeal, arguing that there is a genuine issue of material fact regarding Casey’s intent to injure.[2] We affirm. Background. We recount certain undisputed material facts from the summary judgment record, reserving for later discussion the facts concerning Casey’s intent. On the evening of June 26, 2013, Casey, then seventeen years old, attended the St. Peter’s fiesta celebration (fiesta) in Gloucester with two friends, Dylan Chaney and Forrest Turner. Prior to arriving, Casey had consumed alcohol and smoked marijuana.[3] At some point while at the fiesta, Casey encountered Williams, also seventeen years old, and the two left on foot in the company of Chaney and Turner, allegedly to go smoke marijuana.[4] After the group arrived at a remote location nearby, Casey […]
Central Ceilings, Inc. v. Suffolk Construction Company, Inc., et al. (Lawyers Weekly No. 11-036-17)
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-1117 Appeals Court CENTRAL CEILINGS, INC. vs. SUFFOLK CONSTRUCTION COMPANY, INC. & others.[1] No. 15-P-1117. Suffolk. October 7, 2016. – March 29, 2017. Present: Agnes, Maldonado, & Desmond, JJ. Contract, Construction contract, Subcontractor, Damages. Damages, Breach of contract, Attorney’s fees. Practice, Civil, Attorney’s fees, Discovery. Civil action commenced in the Superior Court Department on October 3, 2006. The case was heard by S. Jane Haggerty, J.; an award of attorney’s fees was entered by her; and a motion for reconsideration was considered by Judith Fabricant, J. Joel Lewin (John P. Connelly also present) for the defendants. Paul R. Mordarski (Thomas J. Fullam also present) for the plaintiff. DESMOND, J. After a jury-waived trial, a Superior Court judge entered judgment awarding the plaintiff, Central Ceilings, Inc. (Central), $ 321,315 on its breach of contract claim for damages for loss of productivity incurred while acting as a subcontractor for defendant Suffolk Construction Company, Inc. (Suffolk), on a large construction project. This case is before us on cross appeals. Suffolk challenges the judgment,[2] claiming, inter alia, that Central’s claim was barred by the “no-damages-for-delay” clause in the subcontract between the parties, and that the judge erred in ruling that Central had established its claim for damages by the “total cost” method. Suffolk further challenges the judge’s award of $ 471,682 in attorney’s fees to Central, claiming that it was wrongfully denied discovery and a hearing prior to the entry of that award. On its cross appeal, Central challenges the judge’s holding that the “pay-if-paid” clause in the subcontract barred it from recovering $ 82,538 from Suffolk for unpaid change order requests (CORs). For the reasons set forth herein, the judgment on the merits entered on December 20, 2013, and the amended judgment for attorney’s fees entered on September 9, 2014, are affirmed. Background. First, we set forth the basic material facts, drawing extensively from the trial judge’s thoughtful and thorough findings of fact, rulings of law, and decision. The Massachusetts State College Building Authority (MSCBA) hired Suffolk to serve as general contractor on the construction of three interconnected dormitories at what is now known as Westfield State University (the project). As the dormitories were to be ready for occupancy by students arriving for the fall semester in 2005, the contract […]
Ramirez v. Commerce Insurance Company (Lawyers Weekly No. 11-022-17)
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-59 Appeals Court WRBASY RAMIREZ[1] vs. COMMERCE INSURANCE COMPANY. No. 16-P-59. Suffolk. November 7, 2016. – March 7, 2017. Present: Cypher, Massing, & Sacks, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Replacement, Construction of policy. Contract, Insurance, Construction of contract. Evidence, Replacement cost. Civil action commenced in the Superior Court Department on February 21, 2014. The case was heard by Janet L. Sanders, J., on motions for summary judgment. Thomas G. Shapiro for the plaintiff. Nelson G. Apjohn (Eric P. Magnuson also present) for the defendant. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief. CYPHER, J. The plaintiff, Wrbasy Ramirez, appeals from a Superior Court judgment entered on a motion for summary judgment filed by Commerce Insurance Company (Commerce). The plaintiff argues that under the standard Massachusetts automobile insurance policy, Commerce must pay, as damages on his third-party claim for the total loss of his automobile, not only the actual cash value of a replacement vehicle, but also the applicable sales tax — even where he has not purchased a replacement vehicle and incurred the sales tax. We affirm.[2] Background. The following undisputed facts are taken from the summary judgment record. In January, 2014, the plaintiff was involved in a motor vehicle collision in Danvers with a vehicle driven by Edith McGuinness. Commerce insured McGuiness through a 2008 edition of the standard Massachusetts automobile insurance policy (the policy), which contains language approved by the Commissioner of Insurance. The policy included benefits for third-party property damage claims where Commerce determined that its insured was legally responsible for the collision. Specifically, part 4 of the policy provided: “[W]e will pay damages to someone else whose auto or other property is damaged in an accident. The damages we will pay are the amounts that person is legally entitled to collect for property damage through a court judgment or settlement. . . . Damages include any applicable sales tax and the costs resulting from loss of use of the damaged property.” Under the policy and the regulations at issue here, damages are calculated as follows: “Whenever the appraised cost of repair plus the probable salvage value may be reasonably expected to exceed the actual cash value of the vehicle, the insurer shall determine the vehicle’s actual cash value.” […]
Ramirez v. Commerce Insurance Company (Lawyers Weekly No. 11-022-17)
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-59 Appeals Court WRBASY RAMIREZ[1] vs. COMMERCE INSURANCE COMPANY. No. 16-P-59. Suffolk. November 7, 2016. – March 7, 2017. Present: Cypher, Massing, & Sacks, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Replacement, Construction of policy. Contract, Insurance, Construction of contract. Evidence, Replacement cost. Civil action commenced in the Superior Court Department on February 21, 2014. The case was heard by Janet L. Sanders, J., on motions for summary judgment. Thomas G. Shapiro for the plaintiff. Nelson G. Apjohn (Eric P. Magnuson also present) for the defendant. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief. CYPHER, J. The plaintiff, Wrbasy Ramirez, appeals from a Superior Court judgment entered on a motion for summary judgment filed by Commerce Insurance Company (Commerce). The plaintiff argues that under the standard Massachusetts automobile insurance policy, Commerce must pay, as damages on his third-party claim for the total loss of his automobile, not only the actual cash value of a replacement vehicle, but also the applicable sales tax — even where he has not purchased a replacement vehicle and incurred the sales tax. We affirm.[2] Background. The following undisputed facts are taken from the summary judgment record. In January, 2014, the plaintiff was involved in a motor vehicle collision in Danvers with a vehicle driven by Edith McGuinness. Commerce insured McGuiness through a 2008 edition of the standard Massachusetts automobile insurance policy (the policy), which contains language approved by the Commissioner of Insurance. The policy included benefits for third-party property damage claims where Commerce determined that its insured was legally responsible for the collision. Specifically, part 4 of the policy provided: “[W]e will pay damages to someone else whose auto or other property is damaged in an accident. The damages we will pay are the amounts that person is legally entitled to collect for property damage through a court judgment or settlement. . . . Damages include any applicable sales tax and the costs resulting from loss of use of the damaged property.” Under the policy and the regulations at issue here, damages are calculated as follows: “Whenever the appraised cost of repair plus the probable salvage value may be reasonably expected to exceed the actual cash value of the vehicle, the insurer shall determine the vehicle’s actual cash value.” […]