Ninety Six, LLC v. Wareham Fire District (Lawyers Weekly No. 11-018-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1111 Appeals Court NINETY SIX, LLC vs. WAREHAM FIRE DISTRICT. No. 16-P-1111. Plymouth. September 12, 2017. – February 14, 2018. Present: Milkey, Hanlon, & Shin, JJ. Municipal Corporations, Water commissioners, Water installation fee. Real Property, Water. Water. Jurisdiction, Water charge. Subdivision Control, Municipal services. Taxation, Real estate tax: assessment. Zoning. Administrative Law, Exhaustion of remedies. Practice, Civil, Review of administrative action, Case stated. Civil action commenced in the Superior Court Department on June 22, 2010. The case was heard by Robert C. Cosgrove, J. David T. Gay for the plaintiff. John Allen Markey, Jr., for the defendant. SHIN, J. This appeal concerns the validity of water betterment assessments imposed by the Wareham fire district (district) on several large parcels of undeveloped land owned by the plaintiff. The district determined the amount of the assessments pursuant to G. L. c. 40, § 42K, which provides for a method of calculation based on “the total number of existing and potential water units to be served” by the new water mains, with “[p]otential water units . . . calculated on the basis of zoning in effect at the date of assessment.” Construing this language to allow consideration of the full development potential of the land, the district assessed the plaintiff’s property based on the maximum number of lots that could be created from each parcel, including the potential subdivision lots that each parcel could yield under the town of Wareham’s subdivision rules and regulations (subdivision rules). The plaintiff filed suit in Superior Court seeking, among other forms of relief, a declaratory judgment that the district misapplied G. L. c. 40, § 42K, by including potential subdivision lots in its calculation, rather than limiting the assessments to “approval not required” (ANR) lots.[1] After the parties submitted the matter for decision on a case stated basis, the judge found and declared that the “[d]istrict[] followed an appropriate method of calculating betterment assessments under G. L. c. 40, § 42K.”[2] The plaintiff appeals, raising three arguments: (1) that § 42K prohibited the district from assessing betterments on subdivision lots because the subdivision rules were adopted pursuant to the subdivision control law, G. L. c. 41, §§ 81K to 81GG, and not the Zoning Act, G. L. c. 40A; (2) that the enabling statute, G. L. c. 40, § 42G, prohibited the district from assessing betterments on land […]
Philadelphia Indemnity Insurance Company v. National Union Fire Insurance Company of Pittsburgh, PA (Lawyers Weekly No. 12-083-17)
1 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 […]
Mount Vernon Fire Insurance Company v. Visionaid, Inc. (Lawyers Weekly No. 10-108-17)
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-12142 MOUNT VERNON FIRE INSURANCE COMPANY vs. VISIONAID, INC.[1] Suffolk. December 5, 2016. – June 22, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. Insurance, Insurer’s obligation to defend. Certification of questions of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit. Kenneth R. Berman (Heather B. Repicky also present) for the defendant. James J. Duane, III (Scarlett M. Rajbanshi also present) for the plaintiff. The following submitted briefs for amici curiae: Marshall Gilinsky for United Policyholders. Laura Foggan, of the District of Columbia, & Rosanna Sattler for American Insurance Association & others. Michael F. Aylward for American International Group, Inc., & another. GAZIANO, J. In this case we are called upon to answer three certified questions from the United States Court of Appeals for the First Circuit involving the scope of an insurer’s duty to defend, and whether that duty extends to a counterclaim brought by the insured. For the reasons that follow, we conclude that where an insurance policy provides that the insurer has the “duty to defend any claim” initiated against the insured, the insurer’s duty to defend does not require it to prosecute affirmative counterclaims on behalf of its insured.[2] Facts and prior proceedings. We recite the facts based on the United States District Court judge’s memorandum of decision, the decision by the United States Court of Appeals for the First Circuit, and the undisputed documents in the record. Visionaid, Inc. (Visionaid),[3] is a manufacturer of lens cleaning and eye safety products. It purchased an employment practices liability insurance policy from Mount Vernon Fire Insurance Company (Mount Vernon), which covered, among other things, wrongful termination claims brought against Visionaid from May, 2011, through May, 2012. As relevant here, the policy imposed two duties on Mount Vernon with respect to any wrongful termination claim brought against Visionaid. The policy provided that Mount Vernon had “the right and duty to defend any Claim to which this insurance applies,” and that it was obligated to “pay one hundred percent (100%) of the Defense Costs for the [covered] Claim” up to the policy limit. Under the terms of the policy, “Claim” was defined as “any proceeding initiated against [Visionaid] . . . seeking to hold [Visionaid] responsible for […]
Williamson-Green v. Interstate Fire and Casualty Company (Lawyers Weekly No. 12-062-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03141-BLS2 ____________________ MICHELLE WILLIAMSON-GREEN, as Administratrix of the Estate of James W. Williamson IV v. INTERSTATE FIRE AND CASUALTY COMPANY ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS James W. Williamson IV died from injuries sustained while he was inspecting a roof from a bucket lift that tipped over. His estate brought a wrongful death action against both the lift manufacturer and the company that had had rented out the lift, Equipment 4 Rent, Inc. (“E4R”). The jury found that the manufacturer and E4R were both negligent and awarded compensatory damages of $ 4.3 million. It also found that “E4R’s conduct was grossly negligent, willful, wanton, or reckless” and awarded additional punitive damages of $ 5.9 million, as allowed under G.L. c. 229, § 2. Interstate Fire and Casualty Company had insured E4R. It paid E4R’s share of the compensatory damages but refused to pay any part of the punitive damage award. In this action Plaintiff claims that Interstate failed to settle the claims against E4R after its liability had become reasonably clear. She asserts one claim on behalf of Mr. Williamson’s estate and four claims as E4R’s assignee. The assigned claims allege that E4R’s damages include “being exposed to an uncovered punitive damages award that would have been avoided had Interstate settled the Underlying Action.” Interstate has moved for judgment on the pleadings on the assigned claims. It argues that requiring an insurer to pay any part of a punitive damages award, even as consequential damages arising from the insurer’s failure to settle a meritorious claim, would be against public policy. The Court must DENY Interstate’s motion because Massachusetts law does not insulate an insurer from liability for damages incurred because its insured caused bodily injury, engaged in reckless or grossly negligent misconduct, or did both. The limitation on insurers’ liability sought by Interstate would be inconsistent with G.L. c. 175, § 47, cl. Sixth (b), which “codifies the entire public policy” of Massachusetts regarding the insurability of losses – 2 – resulting from reckless misconduct. Andover Newton Theological Sch., Inc. v. Cont’l Cas. Co., 409 Mass. 350, 353 n.2 (1991).1 1. Insurers’ Liability for Failing to Settle Claims. Once an insured’s liability for a particular claim has become reasonably clear, the insurer has a duty under Massachusetts law to make a fair offer to settle the claim and to do so promptly. This duty is imposed on all insurers by statute. See G.L. c. 176D, § 3(9)(f); Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 566-567 (2001). In many cases it is also an implicit part of the insurer’s contractual obligations. When an insurance policy […]
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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 […]
Anderson, et al. v. National Union Fire Insurance Company of Pittsburgh PA, et al. (Lawyers Weekly No. 10-022-17)
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 SJC-12108 ODIN ANDERSON & others[1] vs. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA & others.[2] Middlesex. October 6, 2016. – February 2, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Lowy, Budd, JJ. Consumer Protection Act, Insurance, Unfair or deceptive act, Offer of settlement, Damages. Insurance, Settlement of claim. Damages, Consumer protection case, Interest, Punitive. Interest. Judgment, Interest. Practice, Civil, Judgment, Damages, Interest. Civil action commenced in the Superior Court Department on March 13, 2003. The case was heard by Brian A. Davis, J., and motions to alter or amend the judgment were also heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Kathleen M. Sullivan for National Union Fire Insurance Company of Pittsburgh PA. Leonard H. Kesten (Richard E. Brody also present) for the plaintiffs. GAZIANO, J. In this appeal, we consider the proper measure of punitive damages to be assessed against defendants who engage in unfair or deceptive insurance settlement practices in violation of G. L. c. 176D, § 3, and G. L. c. 93A, § 9 (3). The plaintiffs — Odin Anderson, his wife, and his daughter — filed a personal injury action in the Superior Court for serious injuries Odin[3] suffered after being struck by a bus owned by Partners Healthcare Systems, Inc. (Partners), that was being driven by one of its employees. The plaintiffs filed a separate action, under G. L. c. 176D, and G. L. c. 93A, against Partner’s insurers and claims representatives; proceedings in that action were stayed pending resolution of the underlying tort claims. After a trial, a Superior Court jury awarded Anderson $ 2,961,000[4] in damages in the personal injury action, and awarded his wife and daughter $ 110,000 each. At a subsequent, jury-waived trial, a different Superior Court judge found that the insurers and claims representatives violated G. L. c. 93A and G. L. c. 176D by their “egregious,” “deliberate or callously indifferent” actions, “designed to conceal the truth, improperly skew the legal system and deprive the Andersons of fair compensation for their injuries for almost a decade.” Based on these findings, the judge concluded that the insurers’ and claims representatives’ “misconduct warrants the maximum available sanction . . . , both as punishment for what transpired and as a deterrent to similar conduct in the future.” He awarded the plaintiffs treble […]
N-Tek Construction Services, Inc. v. Hartford Fire Insurance Company (Lawyers Weekly No. 11-028-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1483 Appeals Court N-TEK CONSTRUCTION SERVICES, INC. vs. HARTFORD FIRE INSURANCE COMPANY. No. 14-P-1483. Essex. November 5, 2015. – March 14, 2016. Present: Agnes, Sullivan, & Blake, JJ. Public Works, Payment bond. Surety. Notice. Bond, Public works, Construction contract bond. Contract, Public works, Construction contract, Bond, Surety. Civil action commenced in the Superior Court Department on November 18, 2010. After transfer within the Superior Court Department, the case was heard by Timothy Q. Feeley, J. Edward J. Quinlan for the plaintiff. John W. DiNicola, II, for the defendant. AGNES, J. In this case we address the notice provision contained in G. L. c. 149, § 29, as amended by St. 1972, c. 774, § 5 (§ 29),[1] in the context of a $ 23.29 million publicly funded project to repair a bridge in Gloucester (project). In particular, we decide whether the electronic mail message (e-mail) notice given by the claimant, N-Tek Construction Services, Inc. (N-Tek), to the general contractor, SPS New England, Inc. (SPS), satisfied § 29. N-Tek contends that the Superior Court judge, who tried this case without a jury, erred in concluding that the e-mail sent to SPS by N-Tek’s principal failed to satisfy the requirements of § 29. For the reasons that follow, we affirm. SPS, the general contractor, posted a payment bond from a surety, Hartford Fire Insurance Company (Hartford). N-Tek filed the underlying action, seeking recovery against SPS’s bond pursuant to G. L. c. 149, § 29, based on its claim that it had not been fully paid for its work furnished to a subcontractor, Seaway Coatings, Inc. (Seaway). N-Tek sought to reach and apply the payment bond funds to satisfy outstanding invoices. Hartford denied liability. After a bench trial, the judge found that N-Tek did not provide sufficient written notice of its bond claim to SPS as required by § 29, and ordered judgment to enter for Hartford. On appeal, N-Tek argues that the judge misinterpreted § 29 by imposing an added requirement that the notice “include and communicate an intent to assert a claim against the [g]eneral [c]ontractor’s” bond, based on Federal cases construing the Miller Act, 40 U.S.C. §§ 3131-3134 (2002), the Federal analogue to § 29.[2] Facts. We summarize the facts found by the judge, supplemented by undisputed parts of the record. 1. Project. On August 14, 2008, the Massachusetts Highway Department (department)[3] […]
Kelley, et al. v. Boston Fire Department, et al. (Lawyers Weekly No. 11-150-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1701 Appeals Court JOSEPH KELLEY & others[1] vs. BOSTON FIRE DEPARTMENT & another.[2] No. 13-P-1701. November 18, 2014. Fire Fighter, Appointment. Municipal Corporations, Fire department. Boston. Civil Service, Appointment. Practice, Civil, Review of interlocutory action. Four fire lieutenants employed by the city of Boston (city) fire department filed an appeal with the Civil Service Commission (commission) pursuant to G. L. c. 31, § 2(b) and (c), claiming to be aggrieved by the practice of appointing out-of-grade acting captains without following the provisions of the civil service laws. The commission found that the city violated G. L. c. 31, § 31, by appointing acting captains on an emergency basis without initially notifying the Division of Human Resources (HRD), and without obtaining the consent of HRD to extend the emergency appointments after the initial thirty days. The commission ordered the city to cease appointing acting captains in this manner, and the city ended the practice effective July 1, 2009.[3] However, the commission ultimately dismissed the plaintiffs’ appeal, concluding that compliance with § 31 procedures was “ministerial,” and that the plaintiffs had failed to demonstrate that the appointments did not meet the statutory criteria set forth in G. L. c. 31, § 31.[4] The lieutenants appealed the commission’s decision pursuant to G. L. c. 30A, § 14. A judge of the Superior Court vacated the commission’s decision, concluding as a matter of law that the statutory notice and consent requirements were not ministerial, and that the burden of proving that the § 31 criteria were met rested with the city, not the plaintiffs. The matter was remanded to the commission for a new evidentiary hearing to allow the plaintiffs to offer proof of the specific appointments made in violation of § 31 that “they should have received because of their position on the promotion list.” The city has appealed. No appeal was filed by the commission. “As a general rule, an aggrieved litigant cannnot as a matter of right pursue an immediate appeal from an interlocutory order unless a statute or rule authorizes it.” Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 673-674 (2008). This general rule applies with equal force to appeals by litigants who appear before administrative agencies. “[A]n order of remand to an administrative agency is interlocutory and may not be appealed from by the parties to the underlying action.” Chief Justice for Admin. & Mgmt. of […]
Norfolk & Dedham Mutual Fire Insurance Company v. National Continental Insurance Company (Lawyers Weekly No. 11-099-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1207 Appeals Court NORFOLK & DEDHAM MUTUAL FIRE INSURANCE COMPANY vs. NATIONAL CONTINENTAL INSURANCE COMPANY. No. 12‑P‑1207. August 14, 2013. Insurance, Motor vehicle insurance, Notice, Cancellation. Motor Vehicle, Insurance. Registrar of Motor Vehicles. Notice, Cancellation of insurance. The question is whether the defendant, National Continental Insurance Company (National), “immediately upon the intended effective date of the cancellation of [an automobile insurance] policy . . . forwarded to the registrar of motor vehicles a notice, in such form as he may prescribe, containing such information to apprise the registrar of the particular motor vehicle registration on which the insurance is intended to be cancelled.”[1] G. L. c. 175, § 113A(2), as amended by St. 1990, c. 287, § 1. The facts are these:[2] National issued a commercial automobile policy to Genivaldo DeSousa on March 7, 2009.[3] On October 13, 2009, National notified DeSousa that the policy would be canceled effective November 3, 2009, at 12:01 A.M. for nonpayment of premiums.[4] DeSousa did not pay. On November 4, 2009, therefore, National notified DeSousa that his policy had been canceled as previously warned. Two days later, on November 6, 2009, National electronically notified the registry of motor vehicles (RMV) (in a form known as a send report) that DeSousa’s policy had been canceled effective November 3, 2009. The send report was in the form prescribed by the RMV in the sense that it supplied all the information required by the RMV including, among other things, the correct policy number, vehicle identification number, and license plate number. However, it incorrectly identified DeSousa as a corporation rather than as an individual.[5] Three days later, on November 9, 2009, the RMV electronically notified National of the error (in a form known as a return report). On November 17, 2009, National sent a second send report correctly identifying DeSousa as an individual. The RMV accepted the corrected send report that same day and accepted the cancellation of DeSousa’s policy effective November 3, 2009.[6] A few weeks later, on December 7, 2009, DeSousa was in an accident with Eddy Guillaume, who was insured by the plaintiff, Norfolk & Dedham Mutual Fire Insurance Company (Norfolk & Dedham). Norfolk & Dedham brought the underlying action, pursuant to G. L. c. 175, § 113, and G. L. c. 214, § 3(9), to reach and apply National’s policy in payment […]