The Hanover Insurance Group Inc. v. Raw Seafoods, Inc. (Lawyers Weekly No. 09-011-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION NO. 12-03503-BLS2 THE HANOVER INSURANCE GROUP INC., Plaintiff vs. RAW SEAFOODS, INC., Defendant MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT This case concerns a dispute over coverage between an insured and its insurer. Defendant Raw Seafoods, Inc. (RSI) is a seafood processor. In 2012, an RSI customer, Atlantic Capes Fisheries, Inc. (Atlantic), filed an action in federal court alleging that RSI’s negligent processing of its scallops resulted in their premature spoilage. RSI’s insurer, plaintiff Hanover Insurance Group, Inc. (Hanover), agreed to defend RSI under a reservation of rights and then filed the present action, seeking a declaration that it had no duty to indemnify RSI for any judgment Atlantic obtained. After the federal court judge granted summary judgment in favor of Atlantic and entered judgment against RSI, the parties filed cross motions for partial summary judgment in the instant action. This Court (Roach, J.) granted summary judgment in favor of Hanover but the Appeals Court reversed. 91 Mass.App.Ct. 401 (2017). RSI now renews it Motion for Partial Summary Judgment. For the reasons that follow, the Motion is Allowed. 2 BACKGROUND RSI is a seafood processing facility in Fall River. Atlantic, a seafood company that sells scallops and other seafood, regularly uses RSI to apportion, pack, and freeze the fresh scallops that it purchases from fishing vessels. Upon delivery of Atlantic’s scallops, RSI staff inspects the scallops for quality, reports the results to Atlantic, and receives processing instructions. After processing, the scallops are transported to a third-party cold storage facility, Arctic Cold Storage (Arctic), from which Atlantic ships its customers’ orders. In July 2011, a batch of scallops that RSI had processed made their way through customs in Denmark where it was observed that the scallops were decomposed and emitting a strong smell of ammonia. They were deemed unacceptable for human consumption and sent back to the United States. Once in the United States, the Food and Drug Administration tested the batch and confirmed that it was spoiled. The batch of scallops was then returned to Arctic’s facility, where representatives from Atlantic and RSI jointly inspected the shipment and again confirmed the damage. They also inspected another batch of scallops processed by RSI around the same time as the rejected batch, and discovered more damaged scallops. At the time, Hanover insured RSI through a Commercial General Liability (CGL) Policy. The Policy provides in relevant part that Hanover “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” The Policy applies to “property damage” that is caused by an “occurrence,” which is […]
The Hanover Insurance Group, Inc. v. Raw Seafoods, Inc. (Lawyers Weekly No. 11-048-17)
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-1554 Appeals Court THE HANOVER INSURANCE GROUP, INC. vs. RAW SEAFOODS, INC. No. 15-P-1554. Suffolk. September 16, 2016. – April 26, 2017. Present: Agnes, Neyman, & Henry, JJ. Insurance, General liability insurance, Coverage. Words, “Occurrence.” Civil action commenced in the Superior Court Department on September 21, 2012. The case was heard by Christine M. Roach, J., on motions for summary judgment. Michael J. Daly (Samuel P. Blatchley also present) for the defendant. Jeffrey E. Dolan (Anthony M. Campo also present) for the plaintiff. NEYMAN, J. In this case we analyze whether damage to scallops at a seafood processing facility, where the precise cause of damage is unknown, constituted an “occurrence” within the meaning of a commercial general liability (CGL) policy. A Superior Court judge concluded that the defendant-insured, Raw Seafoods, Inc. (RSI), has no reasonable expectation of proving that its claimed loss was caused by an occurrence, and granted summary judgment in favor of the plaintiff-insurer, Hanover Insurance Group, Inc. RSI appeals therefrom. We reverse. Background. 1. RSI and the damaged scallops. RSI is a seafood processing facility in Fall River. One of RSI’s customers, Atlantic Capes Fisheries, Inc. (Atlantic), sells scallops and other types of seafood around the world. Atlantic purchases fresh scallops from fishing vessels, then transports the scallops to RSI for processing, portioning, packaging, and freezing. RSI’s staff inspects the scallops for quality upon arrival, reports the results to Atlantic, and receives processing instructions from Atlantic. After processing, the scallops are transported to Arctic Cold Storage (Arctic), a third-party cold storage facility. Atlantic then ships its customers’ orders directly from Arctic’s facility. RSI handles approximately 4 million to 6 million pounds of scallops for Atlantic per year. In July, 2011, RSI-processed scallops were making their way through customs in Denmark, heading to an Atlantic customer. Upon inspection, the 37,102 pounds of scallops were found to be decomposed, exhibited a strong ammonia smell, and were deemed unacceptable for human consumption. By all accounts, something was rotten in the state of Denmark.[1] The United States Food and Drug Administration tested the scallops and confirmed that they were spoiled. The scallops were then returned to Arctic’s facility, where representatives from Atlantic and RSI jointly inspected the shipment and confirmed the damage. They also inspected another batch […]
Zoning Board of Appeals of Hanover v. Housing Appeals Committee, et al. (Lawyers Weekly No. 11-110-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-893 Appeals Court ZONING BOARD OF APPEALS OF HANOVER vs. HOUSING APPEALS COMMITTEE & another.[1] No. 15-P-893. Plymouth. May 9, 2016. – August 29, 2016. Present: Agnes, Massing, & Kinder, JJ. Housing. Zoning, Housing appeals committee, Comprehensive permit, Low and moderate income housing. Administrative Law, Agency’s interpretation of regulation, Regulations. Municipal Corporations, Fees. Civil action commenced in the Superior Court Department on March 11, 2014. The case was heard by William F. Sullivan, J., on a motion for judgment on the pleadings. Jonathan D. Witten (Barbara M. Huggins with him) for the plaintiff. Paul N. Barbadoro for Hanover Woods, LLC. Bryan F. Bertram, Assistant Attorney General, for Housing Appeals Committee. MASSING, J. Defendant Hanover Woods, LLC (developer), filed an application with the plaintiff zoning board of appeals of Hanover (board) for a comprehensive permit to build a 152-unit mixed-income housing project. Considering the board’s filing fee to be unreasonable, however, the developer paid only what it unilaterally determined to be a reasonable filing fee. Deeming the application incomplete, the board did not accept it for filing. By the time the developer paid the remainder of the fee, six weeks later, the town had qualified for a safe harbor under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (act), effectively giving the board unreviewable discretion to deny the developer’s permit. Nonetheless, the defendant Housing Appeals Committee (HAC) ultimately ordered the board to issue a comprehensive permit to the developer for a 200-unit project. The board appeals from a judgment of the Superior Court affirming the HAC’s order. Because we conclude that the HAC erred in determining that the developer’s application was complete on the date of its incomplete submission, rather than on the date the filing fee was paid in full, we reverse. Background. On October 22, 2009, the developer filed an application for a comprehensive permit for a project to be called Woodland Village, consisting of 152 units to be offered for sale, as well as parking spaces and other site improvements on a twenty-four acre parcel of land in Hanover (town). Thirty-eight of the units, or twenty-five percent, were designated to be affordable units. Under the board’s fee schedule, the filing fee for a project of that size was $ 250 per housing unit, or $ 38,000. […]
Malloch v. Town of Hanover, et al. (Lawyers Weekly No. 10-163-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11713 KRISTIN MALLOCH vs. TOWN OF HANOVER & others.[1] Suffolk. January 5, 2015. – September 24, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Civil Service, Decision of Civil Service Commission, Eligibility list, Judicial review, Police, Promotion. Police, Promotional examination. Administrative Law, Agency’s interpretation of statute, Decision, Findings, Judicial review, Agency’s authority, Substantial evidence. Practice, Civil, Review respecting civil service. Civil action commenced in the Superior Court Department on March 28, 2013. The case was heard by Paul D. Wilson, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Frank J. McGee for the plaintiff. Bryan F. Bertram, Assistant Attorney General, for the personnel administrator of the human resources division of the Commonwealth. Galen Gilbert, for Carla Sullivan, amicus curiae, submitted a brief. DUFFLY, J. The town of Hanover (town) had two open positions for sergeants in its police department. Although the plaintiff, Kristin Malloch, had scored highest on the civil service examination for promotion to a police sergeant position, the town decided to bypass Malloch and promote the candidates who had scored second and third highest on the sergeants’ examination. Malloch appealed the town’s decision to the Civil Service Commission (commission), pursuant to G. L. c. 31, § 2 (b), arguing that, where an appointing authority promotes a candidate other than the candidate ranked highest on the certification list; the promotion will not become effective until the appointing authority’s written statement of reasons for the bypass “has been received by the administrator,” G. L. c. 31, § 27;, that “received” in this context means substantially reviewed and approved by the administrator; and that the administrator[2] may not, in accordance with G. L. c. 31, § 5 (l), delegate that function to the town’s appointing authority. Malloch argued also that, even if the delegation were permissible, her bypass was not supported by evidence of a reasonable justification for the bypass. The commission denied her appeal, and Malloch sought review in the Superior Court pursuant to G. L. c. 30A, § 14. Agreeing with Malloch that the statutory requirement that the written statement of bypass reasons must be “received by” the administrator means “reviewed and approved by” the administrator, a Superior Court judge concluded that it was not “practicable,” see G. L. c. 31, § 5 (l), for the […]
Auto Flat Car Crushers, Inc. v. Hanover Insurance Company (Lawyers Weekly No. 10-170-14)
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 SJC-11477 AUTO FLAT CAR CRUSHERS, INC. vs. HANOVER INSURANCE COMPANY. Norfolk. May 5, 2014. – October 15, 2014. Present: Ireland, C.J., Spina, Botsford, Gants, Duffly, & Lenk, JJ.[1] Insurance, Insurer’s obligation to defend, Coverage. Consumer Protection Act, Insurance, Availability of remedy, Damages, Unfair or deceptive act. Contract, Insurance, Performance and breach, Damages, Indemnity. Damages, Consumer protection case, Breach of contract. Indemnity. Declaratory Relief. Environment, Environmental cleanup costs. Civil action commenced in the Superior Court Department on May 20, 2009. A motion for partial summary judgment was heard by E. Susan Garsh, J.; motions for partial summary judgment were heard by Elizabeth B. Donovan, J.; a motion for summary judgment on the remaining issue was heard by Raymond P. Veary, Jr., J.; and the case was reported to the Appeals Court by Kenneth J. Fishman, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Donald V. Jernberg (John J. McMaster with him) for the plaintiff. Aaron R. White for the defendant. The following submitted briefs for amici curiae: John P. Ryan & Harry A. Pierce for Massachusetts Insurance Federation, Inc. Jonathan M. Feigenbaum for United Policyholders. J. Michael Conley, Hans R. Hailey, Thomas R. Murphy, & Danielle M. Spang for Massachusetts Academy of Trial Attorneys. LENK, J. The plaintiff’s insurer refused to defend or to indemnify the plaintiff in connection with an environmental dispute involving the Department of Environmental Protection (DEP). Several years later, the plaintiff, having by then funded both its own defense and the environmental remediation ordered, brought suit against the insurer, alleging breach of contract and seeking declaratory relief; on a motion for partial summary judgment, the plaintiff obtained declaratory relief establishing the insurer’s duty to defend. The plaintiff then amended its complaint to assert a claim under G. L. c. 93A, § 11 (§ 11), arising out of the insurer’s failure to defend; the insurer did not avail itself of the statutory mechanism permitting a defendant to limit its liability to single damages by tendering with its answer a written offer of settlement. See G. L. c. 93A, § 11, fifth par. Thereafter, and while reserving its rights as to its pending claims, the plaintiff accepted reimbursement from the insurer, with interest, for its expenses in litigating and resolving the DEP matter. It […]
Town of Hanover v. New England Regional Council of Carpenters (Lawyers Weekly No. 10-057-14)
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 SJC‑11396 TOWN OF HANOVER vs. NEW ENGLAND REGIONAL COUNCIL OF CARPENTERS. Plymouth. December 2, 2013. ‑ March 25, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. “Anti‑SLAPP” Statute. Constitutional Law, Right to petition government. Abuse of Process. Labor. Practice, Civil, Motion to dismiss, Standing. Civil action commenced in the Superior Court Department on October 6, 2011. A special motion to dismiss was heard by Robert C. Cosgrove, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Christopher N. Souris for the defendant. James A. Toomey for the plaintiff. Richard J. Yurko, Noemi A. Kawamoto, Sarah R. Wunsch, Audrey R. Richardson, & Susan Reid, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief. IRELAND, C.J. This case presents an issue of first impression: whether an association that has provided support for litigation, without being a named party in that litigation, has engaged in protected petitioning activities for the purposes of G. L. c. 231, § 59H. The defendant, the New England Regional Council of Carpenters, appeals from a Superior Court judge’s denial of its special motion to dismiss a suit by the town of Hanover (town) claiming that the defendant engaged in abuse of process in prior legal proceedings.[1] Because we conclude that support of litigation constitutes protected petitioning activity within the meaning of G. L. c. 231, § 59H, and that here, the town did not demonstrate that the defendant’s right to petition was “devoid of any reasonable factual support or any arguable basis in law,” Office One, Inc. v. Lopez, 437 Mass. 113, 123 (2002), we allow the defendant’s special motion to dismiss. 1. Prior litigation. We begin by briefly discussing certain events relevant to the defendant’s special motion to dismiss. In May, 2009, the town engaged in an open bidding process for the construction of the town’s new high school. Fordyce v. Hanover, 457 Mass. 248, 251-252 (2010) (Fordyce). The town awarded the contract to the contractor with the lowest formal bid, following which a subcontractor who was not involved in the winning contract filed a bid protest with the Attorney General. Id. at 252. After an investigation of the town’s bidding process and award of the contract, the Attorney General found that the contractor who […]