New England Insulation Company, Inc. v. Liberty Mutual Insurance Company (Lawyers Weekly No. 11-064-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 11‑P‑1617 Appeals Court NEW ENGLAND INSULATION COMPANY, INC. vs. LIBERTY MUTUAL INSURANCE COMPANY. No. 11‑P‑1617. Suffolk. September 12, 2012. ‑ May 22, 2013. Present: Cohen, Rubin, & Carhart, JJ. Insurance, Comprehensive liability insurance, Coverage, Construction of policy. Contract, Insurance, Indemnity, Construction of contract. Indemnity. Asbestos. Civil action commenced in the Superior Court Department on July 13, 2010. A motion to dismiss was heard by Judith Fabricant, J. Elizabeth J. Stewart (Susan J. Baronoff with her) for the plaintiff. Kim V. Marrkand (Alec Zadek with her) for the defendant. COHEN, J. The central issue in this appeal is whether the pro rata time-on-the-risk allocation method adopted by the Supreme Judicial Court in Boston Gas Co. v. Century Indem. Co., 454 Mass. 337 (2009) (Boston Gas), should be applied to determine the extent of indemnity coverage owed by Liberty Mutual Insurance Company (Liberty) for claims brought against its insured, New England Insulation Company, Inc. (NEIC), for asbestos-related injuries. Procedurally, the appeal arises from the dismissal of NEIC’s complaint against Liberty, which, as pertinent here, sought damages and declaratory relief on the premise that the Boston Gas allocation method was not applicable because of differences in wording between the Liberty policies and those construed in Boston Gas. A judge of the Superior Court concluded that those differences were not significant and that Boston Gas was controlling. Accordingly, she dismissed the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). NEIC appeals from the ensuing judgment, but argues error only in the judge’s determination (see note 2, supra) that Liberty did not breach its contractual duty to indemnify by deciding, in June, 2010, that it would apply the Boston Gas allocation method to future indemnity payments and allocate shares of losses to NEIC for periods when it did not have coverage. For the following reasons, we affirm. 1. Standard of review. Our review of the dismissal of a complaint pursuant to Mass.R.Civ.P. 12(b)(6) is de novo. Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 373 (2012). “We accept as true the allegations in the complaint and draw every reasonable inference in favor of the plaintiff. We consider whether the factual allegations in the […]