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Nurse v. Omega US Insurance, Inc. (Lawyers Weekly No. 11-156-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   14-P-653                                        Appeals Court   KARL NURSE  vs.  OMEGA US INSURANCE, INC. No. 14-P-653. Suffolk.     January 13, 2015. – October 5, 2015.   Present:  Trainor, Vuono, & Hanlon, JJ. Insurance, Coverage, Water damage.  Contract, Insurance.  Limitations, Statute of.  Practice, Civil, Summary judgment, Declaratory proceeding, Statute of limitations, Commencement of action.     Civil action commenced in the Superior Court Department on December 28, 2011.   The case was heard by Edward P. Leibensperger, J., on a motion for summary judgment.     James M. Dunn for the plaintiff. Thomas M. Prokop for the defendant.      VUONO, J.  This case arises from the denial of coverage by the defendant, Omega US Insurance, Inc. (Omega[1]), for water damage to a multi-unit residence owned by the plaintiff, Karl Nurse.  The damage is alleged to have been caused by a burst pipe which resulted from frigid weather.  A judge of the Superior Court granted summary judgment in favor of Omega on the ground that Nurse’s action for declaratory relief and breach of contract was barred by the two-year statute of limitations set forth in G. L. c. 175, § 99, Twelfth (the statute or § 99), and incorporated as a provision of the policy.[2]  While there is no dispute that Nurse did not commence this action within two years of the date the loss occurred, he contends that his complaint was nevertheless timely because the so-called “discovery rule” applies to toll the statute of limitations period.  We conclude that the discovery rule does not apply in these circumstances and, therefore, summary judgment was proper. Background.  The material facts, in the light most favorable to Nurse, the nonmoving party, are as follows.[3]  Nurse owns a three-unit residence (property or building) located at 294 Shawmut Avenue in Boston.  The property was insured under a dwelling policy issued by Omega for the period from April 27, 2009, to April 27, 2010.  The policy was subject to the requirements of G. L. c. 175, § 99, Twelfth, which sets forth standard terms applicable to all fire insurance policies in the Commonwealth including a two-year statute of limitations for any claims covered by such policies.[4] In December, 2009, the property was vacant except for ongoing construction work in the third-floor unit, which required that the plumbing supplying water to that unit remain active.[5]  Both December 17 and December 18 were extremely cold days with high temperatures reported at […]

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Posted by Massachusetts Legal Resources - October 5, 2015 at 3:06 pm

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