Vintimilla v. National Lumber Company (Lawyers Weekly No. 11-134-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1101 Appeals Court MIGUEL VINTIMILLA vs. NATIONAL LUMBER COMPANY. No. 12‑P‑1101. Plymouth. April 5, 2013. ‑ November 6, 2013. Present: Vuono, Carhart, & Agnes, JJ. Negligence, Entrustment, Forklift truck. Contract, Equipment lease. Bailment. Practice, Civil, Summary judgment. License. Civil action commenced in the Superior Court Department on April 10, 2008. A motion to amend the complaint was heard by Thomas F. McGuire, Jr., J., and the case was heard by him on a motion for summary judgment. Douglas Smith for the plaintiff. Joseph G. Yannetti (Christian A. Young with him) for the defendant. CARHART, J. The plaintiff appeals from the allowance of the defendant’s motion for summary judgment on his claim for negligent entrustment and the denial of his motion to amend his complaint. We affirm. Background. The plaintiff, Miguel Vintimilla, filed a complaint against National Lumber Company (National Lumber) alleging negligent entrustment. Subsequently, Vintimilla moved to amend his claim by adding a count alleging unfair or deceptive acts or practices pursuant to G. L. c. 93A. The judge, in a detailed memorandum, allowed summary judgment in favor of National Lumber. At the same time, the judge denied Vintimilla’s motion to amend the complaint to add a c. 93A count on the grounds that the motion was futile in light of his allowance of summary judgment on the negligent entrustment count. The facts are not in dispute and in order to frame the issue on appeal, we recite them as stated by the judge in his memorandum of decision: “On November 26, 2007, National Lumber leased a forklift to Vermont Construction [Company (Vermont Construction)]. The lease agreement stated that the lessee ‘shall use the equipment in a careful and proper manner and shall comply with all national, state, municipal, police and other laws, ordinances and regulations in anywise [sic] relating to the possession, use, or maintenance of the equipment.’ This was the first time National Lumber leased equipment to Vermont Construction. National Lumber’s officers and employees did not know, and did not inquire, whether Vermont Construction’s employees had a license to operate the forklift or whether they were competent to operate forklifts. National Lumber’s officers and employees were unaware of any practice of using a forklift to lift a person into the air. Michael Gosselin, a sales representative of National […]
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 […]
Drakopoulos, et al. v. U.S. Bank National Association, et al. (Lawyers Weekly No. 10-126-13)
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, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11271 SUSANNE DRAKOPOULOS & another[1] vs. U.S. BANK NATIONAL ASSOCIATION, trustee,[2] & another.[3],[4] Essex. March 4, 2013. ‑ July 12, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Massachusetts Predatory Home Loan Practices Act. Consumer Protection Act, Mortgage of real estate. Real Property, Mortgage. Mortgage, Assignment. Assignment. Civil action commenced in the Superior Court Department on May 28, 2009. The case was heard by Robert A. Cornetta, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Paul R. Collier, III (Pamela A. Lebowitz & Max Weinstein with him) for the plaintiffs. Peter F. Carr, II, for the defendants. Martha Coakley, Attorney General, Glenn Kaplan, Aaron Lamb, & Gabriel O’Malley, Assistant Attorneys General, for the Commonwealth, amicus curiae, submitted a brief. LENK, J. In 2006, the plaintiffs, Susanne and Peter Drakopoulos,[5] refinanced their family home in Haverhill through Aegis Lending Corporation (lender), entering into a stated income home mortgage loan secured by a first mortgage on the home.[6] The total monthly payment on this loan proved to be approximately $ 600 greater than the plaintiffs’ total monthly income. Less than six months after the mortgage was funded, it was sold and assigned to the defendant U.S. Bank National Association (bank) as trustee of the Credit Suisse First Boston Mortgage Securities Corp., Home Equity Pass-Through Certificates, Series 2007-1 (trust). The loan was serviced by the defendant Select Portfolio Servicing, Inc. (servicer). The plaintiffs fell behind in their payments and defaulted on the loan; in November, 2008, the bank foreclosed on the mortgage. The plaintiffs thereafter brought this action, asserting, inter alia, violations of the Predatory Home Loan Practices Act, G. L. c. 183C (act); the Consumer Protection Act, G. L. c. 93A; and the Borrower’s Interest Act, G. L. c. 183, § 28C, The plaintiffs also asserted that the loan was unenforceable because it was unconscionable, and they sought damages and rescission for predatory lending practices. A Superior Court judge granted the defendants’ motions for summary judgment on all claims, based in large part on the ground that the defendants, as assignees, had no liability for the acts of the lender. The plaintiffs appealed. Because we conclude that the bank is not shielded from liability as a matter of law by virtue of its […]
Categories: News Tags: 1012613, Association, Bank, Drakopoulos, Lawyers, National, U.S., Weekly
Deutsche Bank National Association v. First American Title Insurance Company (Lawyers Weekly No. 10-124-13)
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, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11265 DEUTSCHE BANK NATIONAL ASSOCIATION,[1] trustee,[2] vs. FIRST AMERICAN TITLE INSURANCE COMPANY. Suffolk. March 7, 2013. ‑ July 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Insurance, Title insurance, Insurer’s obligation to defend. Real Property, Title insurance. Civil action commenced in the Superior Court Department on December 11, 2009. The case was heard by S. Jane Haggerty, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard E. Briansky (Jeffrey J. Pyle with him) for the plaintiff. Jason A. Manekas for the defendant. CORDY, J. In the present appeal, we consider whether the terms of a title insurance policy require First American Title Insurance Company (First American) to defend Deutsche Bank National Association (Deutsche Bank) in a lawsuit brought by a third party, Karla Brown,[3] seeking rescission of a note and first mortgage securing that note, originated by Deutsche Bank’s predecessor in interest in connection with the purchase of Brown’s home. Following First American’s denial of coverage, Deutsche Bank instituted this action seeking a judgment declaring that First American has a duty to defend it in Brown’s lawsuit and seeking statutory damages. We transferred the case here on our own motion following Deutsche Bank’s appeal from a Superior Court judge’s order granting summary judgment in favor of First American. On appeal, Deutsche Bank argues that the policy is susceptible to an interpretation that it covers the claims alleged in Brown’s complaint and that two exclusions contained within the policy do not preclude coverage.[4] Based on these arguments, Deutsche Bank contends that First American is under a contractual duty to defend it in the Brown lawsuit. In addition, Deutsche Bank renews its claim for damages under G. L. c. 93A due to First American’s alleged violation of G. L. c. 176D, § 3.[5] In response, First American argues that the allegations in Brown’s complaint do not trigger its duty to defend because they relate to a predatory lending scheme concerning the validity of the underlying note and not the enforceability of Deutsche Bank’s mortgage interest. Alternatively, First American argues that it need not defend Deutsche Bank because Brown’s claims are excluded by the policy. For the reasons discussed below, we conclude that the allegations in […]
Things to Know in the South End Today, Feb. 1st: National Wear Red Day
1. Weather: The National Weather Service is predicting a partly sunny day with a high of 35 degrees. 2. Wear Red Day: Feb. 1 is the 10th annual National Wear Red Day, part of the national “Go Red For Women” campaign and a kick-off to American Heart Month. You can join the fight against heart disease by supporting the “Go Red For Women” cause (learn more at goredforwomenepk.com). On Feb. 1, help build awareness and inspire action by wearing red. See here for more information. 2. Film Noir: Celebrate the old black and white movies with a free screening each Friday afternoon at the South End Branch Library (685 Tremont St.) This week’s offering is “Thin Man” with Myrna Loy & William Powell. The show goes on at 2 p.m. See here for more information. 4. SOWA Open Market Applications: Ever want to be a vendor at the SOWA Open Market? Applications for the 10th season are now available on their website: http://www.sowaopenmarket.com/ 5. Super Bowl Plans: If you’re looking for something to do for the Super Bowl, Clery’s is holding a Super Bowl Party starting at 1 p.m. on Sunday. $ 15 gets you two drink tickets, and they’ll aslo be hosting a wing-eating contest. See here for more details. Things you can do every day on South End Patch: Share your news with the rest of the community. Click here to add an announcement. Add your events to our events calendar. Click here to sign up for breaking news updates. Want up-to-the-minute news? Click here to follow us on Facebook or Twitter. Share your thoughts on your community in a blog. Click here to get started. South End Patch