Skiffington v. Liberty Mutual Insurance Company (Lawyers Weekly No. 11-027-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReportersjc.state.ma.us 17-P-425 Appeals Court ANN SKIFFINGTON vs. LIBERTY MUTUAL INSURANCE COMPANY. No. 17-P-425. Hampden. November 9, 2017. – March 8, 2018. Present: Meade, Shin, & Ditkoff, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Construction of policy, Coverage, Settlement of claim, Amount of recovery for loss. Civil action commenced in the Superior Court Department on January 25, 2016. A motion to dismiss was heard by Constance M. Sweeney, J. Matthew T. LaMothe for the plaintiff. Daniel P. Tighe for the defendant. SHIN, J. Following a motor vehicle accident, the plaintiff, a third-party claimant, received reimbursement from Liberty Mutual Insurance Company (Liberty Mutual) for the loss of her vehicle. She then sought additional payment for (1) costs arising from loss of use of her vehicle, even though she was unable to produce any documentation to Liberty Mutual that she had paid for substitute transportation, and (2) her title and registration fees and the residual value of her inspection sticker. When Liberty Mutual denied liability for these claims, the plaintiff brought this putative class action, seeking declaratory relief under G. L. c. 231A and damages for unfair claim settlement practices under G. L. c. 93A, § 9, and G. L. c. 176D, § 3(9). On Liberty Mutual’s motion, a Superior Court judge dismissed the complaint in its entirety under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and the plaintiff appeals. As we conclude that the plaintiff has failed to allege compensable damages, we affirm, modifying the judgment to declare the rights of the parties. Background. We accept the allegations of the amended complaint as true for purposes of this appeal. See Goodwin v. Lee Pub. Schs., 475 Mass. 280, 284 (2016). In October of 2015, the plaintiff’s 2005 Nissan Altima was struck by a driver whose vehicle was insured by Liberty Mutual under a standard Massachusetts automobile policy.[1] The plaintiff’s vehicle was declared to be a total loss. After determining that its insured was responsible for the accident, Liberty Mutual reimbursed the plaintiff for the loss of her vehicle. The plaintiff then sent Liberty Mutual a demand letter under G. L. c. 93A, claiming that she was also entitled to payment for loss of use, title and registration fees, and the residual value of her inspection sticker. Liberty Mutual sent a letter in response detailing its rationale for denying the claims. […]
MHM Correctional Services, Inc., et al. v. Darwin Select Insurance Company, et al. (Lawyers Weekly No. 09-008-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION NO. 2017-01825-BLS2 MHM CORRECTIONAL SERVICES, INC., CENTURION OF MINNESOTA, LLC, CENTURION OF MISSISSIPPI, LLC & MASSACHUSETTS PARTNERSHIP FOR CORRECTIONAL HEALTHCARE, LLC, Plaintiffs vs. DARWIN SELECT INSURANCE COMPANY N/K/A ALLIED WORLD SURPLUS LINES INSURANCE COMPANY & ALLIED WORLD ASSURANCE COMPANY, Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS This case concerns six separate claims for coverage brought by insureds against their insurers. The plaintiffs are MHM Correctional Services, Inc. (MHM), Centurion of Mississippi, LLC (Centurion-MS), Centurion of Minnesota, LLC (Centurion-MN), and Massachusetts Partnership for Correctional Healthcare, LLC (MPCH), each of which provides healthcare services to inmates housed in state prison facilities. Plaintiffs have been sued or are the subjects of indemnification demands in connection with six class action lawsuits alleging that the health care rendered to inmates in those facilities is so inadequate as to violate their constitutional rights. In the instant case, plaintiffs seek declaratory and injunctive relief as to the coverage obligations of the defendants Darwin Select Insurance Company n/k/a Allied World Surplus Lines Insurance Company (Darwin) and Allied World Assurance Company (Allied World) in relation to these six lawsuits. Defendants now move to dismiss, relying on the language of the underlying policies, all of which are before the Court. In the event that this Court does not 2 dismiss certain counts, the defendants ask this Court to stay the proceedings. For the reasons that follow, the Motion to Dismiss is Denied. BACKGROUND Plaintiffs have contracts with various Departments of Corrections (DOCs) throughout the United States to provide medical and mental healthcare services to their prisoner populations. MHM provides mental healthcare services for the Alabama DOC (ADOC). Centurion-MS provides medical and mental healthcare services for the Mississippi DOC (MSDOC). Centurion-MN provides medical and mental healthcare services for the Minnesota DOC (MNDOC). MPCH provides medical and mental healthcare services for the Massachusetts DOC (MADOC). These DOCs are currently defendants in six federal class action lawsuits filed between 2010 and 2015 on behalf of incarcerated individuals. Those lawsuits are: Dunn v. Thomas (Dunn), No. 2:14-cv-00601-MHT-TFM; DePriest v. Walnut Grove Correctional Authority (DePriest), No. 3:10-cv-663 DPJ-FKB; Dockery v. Epps (Dockery), No. 3:13-cv-326-TSL-JMR; Ligons v. Minnesota Department of Corrections (Ligons), No. 15-cv-2210, PJT/BT; Paszko v. O’Brien (Paszko), No. 1:15-cv-12298-NMG; and Briggs v. Massachusetts Department of Corrections (Briggs), No. 1:15-cv-40162-GAO. Each of these lawsuits seeks injunctive and declaratory relief as well as attorney’s fees. Both the MNDOC and Centurion-MN are defendants in Ligons. Both the MADOC and MPCH are defendants in Paszko and Briggs. The ADOC is a defendant in Dunn and the MSDOC is a defendant in DePriest and Dockery. MHM and Centurion-MS are not named defendants in Dunn, DePriest, or […]
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 […]
Kantzelis v. The Commerce Insurance Company (Lawyers Weekly No. 09-045-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CA No. 16-3144-BLS1 ALEX KANTZELIS, on behalf of himself and all others similarly situated, vs. THE COMMERCE INSURANCE COMPANY MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO STRIKE CLASS ALLEGATIONS In this action, the plaintiff, Alex Kantzelis, asserts claims arising out of the defendant, The Commerce Insurance Company’s (Commerce), failure to make payments directly to a secured lender that financed the plaintiff’s purchase of his automobile after Commerce denied coverage for the plaintiff’s collision claim because of misrepresentations in the plaintiff’s application for insurance. He brings this action on his own behalf as well as on behalf of a putative class of similarly situated Commerce insureds. The operative complaint governing the plaintiff’s claims is his Third Amended Class Action Complaint (the Complaint). The original complaint was filed on October 13, 2016. It was amended once as a matter of right and once with Commerce’s assent. Commerce answered this second amended complaint, and also moved to dismiss on the grounds that the plaintiff lacked standing to bring the claims he asserted because he had suffered no damages. At a hearing on that motion, the court noted that the plaintiff’s contention that his debt to the finance firm that financed his purchase of the car would have been extinguished if Commerce had paid 2 the secured lender, as it was allegedly required to do under the insurance policy, was not supported by the policy language—if Commerce paid the loss to the lender it would be substituted as the creditor for the amount of the loss so paid.1 The court went on to comment that it was conceivable that a person in the plaintiff’s position might have suffered some other loss because Commerce did not pay the lender, for example if the car was repossessed and this caused consequential damages to the insured. Plaintiff’s counsel suggested that he could allege these kinds of special damages. The court gave the plaintiff an opportunity to file the third amended complaint, which, as noted above, is now the operative complaint in this case. The case is now before the court on Commerce’s “Motion to Strike Class Allegations.” Commerce contends that because the plaintiff’s claims rest on his allegations of special consequential damages unique to him, they cannot be the predicate for class-based claims. Whether such a motion to strike may be brought under Massachusetts jurisprudence is a question of first impression and discussed below. Of course, a denial of this motion would not be tantamount to the certification of a class, the plaintiff would still have to move for class certification under Mass.R.Civ.P. 23 and provide evidentiary support for class treatment. Rather, the practical issue raised by […]
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. Kimberly A. Hartman, of Illinois, for the defendant. GAZIANO, J. In this case we answer a certified question from the United States District Court for the District of Massachusetts concerning the priority of coverage of two automobile insurance policies that both covered a single motor vehicle accident. The accident occurred when an employee of a refuse company, driving a garbage truck owned by another company, struck and killed a bicyclist. The policies were issued respectively by the plaintiff and defendant insurers to the employer of the driver and the company that owned the truck.[2] A portion of the loss was covered by a primary insurance policy from a third insurance company, not a party here. The two policies at issue were triggered, according to the language in each policy, after the exhaustion of the primary policy. Although the relevant language of the policies differs, each policy states that it provides “excess” coverage[3] (in the circumstances here) and each policy also contains an “other insurance” clause.[4] As the Federal District Court judge noted in his certification order, the circumstances here involve a question of first impression, because one of the two policies is a “hybrid” policy that provides primary coverage for an incident where its insured is driving a vehicle owned by the insured, and excess coverage for an accident where its insured is the driver but is driving a vehicle owned by someone else. The other policy is a “true . . . umbrella” policy that provides only excess coverage where other coverage has been exhausted. For the reasons that follow, we conclude that both excess policies cover the accident equally, after exhaustion of the underlying primary policy, to the extent of their respective policy limits. Background and procedural history. The undisputed facts are drawn from the decision of the Federal District Court judge certifying the question to this […]
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. The case was heard by Christine M. Roach, J., on motions for summary judgment, and an award of attorney’s fees was entered by her. Kevin J. O’Connor (Kara A. Loridas also present) for the plaintiff. Michael John Miguel for the defendant. TRAINOR, J. This appeal arises from a series of cross motions for summary judgment. The plaintiff, OneBeacon America Insurance Company (OneBeacon), appeals from so much of the final judgment as awarded reasonable and necessary defense costs to its insured, Celanese Corporation (Celanese), that Celanese incurred from April 13, 2009, through May 27, 2011.[1] On May 27, 2011, a judge of the Superior Court determined that OneBeacon was entitled to take control of Celanese’s defense as of April 13, 2009 (see note 1, supra). The issue on appeal is whether that determination precludes Celanese from receiving any reimbursement for defense of the underlying claims during the period of time when the question of control over the defense was being litigated. OneBeacon argues that it is not liable for any defense costs incurred by Celanese during that period of time because OneBeacon offered to defend Celanese without a reservation of rights. Celanese, on cross appeal, contends that the judge committed an abuse of discretion by not awarding the full amount of defense costs that Celanese requested. We vacate so much of the judgment that held OneBeacon liable for Celanese’s defense costs for the period of time at issue, and therefore do not reach the issues raised in Celanese’s cross appeal. Background. The following undisputed facts are taken from the summary judgment record. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991) (“The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law”). […]
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 […]
Safety Insurance Company v. Chau, et al. (Lawyers Weekly No. 09-005-17)
1 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 2 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 […]
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 […]
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 […]