Lumbermens Mutual Casualty Company v. Workers’ Compensation Trust Fund (Lawyers Weekly No. 11-128-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13-P-1982 Appeals Court LUMBERMENS MUTUAL CASUALTY COMPANY vs. WORKERS’ COMPENSATION TRUST FUND. No. 13-P-1982 Suffolk. June 2, 2015. – September 3, 2015. Present: Vuono, Grainger, & Blake, JJ. Workers’ Compensation Act, Reimbursement of insurer. Insurance, Insolvency of insurer. Administrative Law, Primary jurisdiction, Exhaustion of remedies, Agency’s interpretation of statute. Civil action commenced in the Superior Court Department on May 21, 2013. The case was heard by Heidi E. Brieger, J. W. Frederick Uehlein for the plaintiff. Douglas S. Martland, Assistant Attorney General, for the defendant. GRAINGER, J. Lumbermens Mutual Casualty Company in liquidation (Lumbermens) appeals from the Superior Court judgment dismissing its claim against the Workers’ Compensation Trust Fund (trust fund). Lumbermens sought partial reimbursement from the fund for workers’ compensation payments made pursuant to G. L. c. 152, §§ 37 and 65. A Superior Court judge dismissed the claim under the doctrine of primary jurisdiction. We affirm. Background. We summarize the undisputed facts. Lumbermens, an Illinois Corporation, was licensed to issue workers’ compensation insurance policies in Massachusetts. Payments under these policies included so-called “second injury” benefits awarded pursuant to G. L. c. 152, § 37.[1] The trust fund is authorized by that statute to provide partial reimbursement to insurers for second injury payments. Between 2000 and 2008 Lumbermens and the trust fund entered into agreements in six separate cases, referred to as Form 123 agreements,[2] establishing the reimbursement percentage to be applied to “second injury” payments made by Lumbermens in each case. In July, 2012, Lumbermens was placed into rehabilitation, also referred to as a “run-off” period, whereby it could not issue new policies but continued to administer existing policies. The trust fund, which had made reimbursement payments pursuant to the Form 123 agreements until Lumbermens entered the run-off period, thereafter refused further payment. The trust fund asserted that Lumbermens was no longer entitled to reimbursement once the run-off period commenced because it was no longer an “insurer” able to issue policies, as that term is defined in G. L. c. 152, § 1(7). Ten months later, in May, 2013, Lumbermens was placed in liquidation. Approximately one year thereafter Lumbermens filed a complaint for enforcement of the six Form 123 agreements in Superior Court. A Superior Court judge dismissed the complaint, finding that Lumbermen’s claims were more properly heard before the reviewing board (board) of the Department of Industrial Accidents (DIA) under the […]
Preferred Mutual Insurance Company v. Vermont Mutual Insurance Company, et al. (Lawyers Weekly No. 11-062-15)
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 13-P-1890 Appeals Court PREFERRED MUTUAL INSURANCE COMPANY vs. VERMONT MUTUAL INSURANCE COMPANY & others.[1] No. 13-P-1890. Middlesex. October 7, 2014. – June 17, 2015. Present: Cohen, Wolohojian, & Blake, JJ. Insurance, Coverage, Insurer’s obligation to defend, Defense of proceedings against insured, Homeowner’s insurance, Business exclusion, Excess Liability Insurance. Contract, Insurance. Practice, Civil, Summary judgment. Indemnity. Civil action commenced in the Superior Court Department on March 30, 2012. The case was heard by Dennis J. Curran, J., on motions for summary judgment, and the entry of separate and final judgment was ordered by him. Peter C. Kober for Vermont Mutual Insurance Company. Robert A. Curley, Jr., for the plaintiff. COHEN, J. This insurance dispute arises from an accident in which Richard Dubois was injured while working at a residence in Medford. The residence was owned by Francis and Eileen Munyon, who lived there with their adult son, Joseph.[2] In October, 2009, the Munyons undertook to renovate their second-floor bathroom and hired Dubois’s employer as the plumbing contractor. On Dubois’s first day on the job, he removed old copper piping and other debris from the bathroom and attempted to throw it into the backyard from a second-floor deck. Unbeknownst to Dubois, on the previous day, Joseph had unfastened the porch railing in order to push the old cast iron bathtub into the backyard; but when he finished, he left the railing in an upright position so it appeared to be securely in place. While leaning against the unsecured railing, Dubois fell to the ground and was injured. Dubois and his wife later filed suit against Joseph and his parents, alleging that they were liable for Dubois’s personal injuries and his wife’s loss of consortium. At the time of the accident, Francis and Eileen were the named insureds under a homeowner’s policy issued by the defendant, Vermont Mutual Insurance Company (Vermont). In addition, by virtue of his status as a resident relative, Joseph, too, was an insured under the Vermont policy. Independently, Joseph was the named insured under a commercial lines policy issued by the plaintiff, Preferred Mutual Insurance Company (Preferred), in connection with Joseph’s business as a self-employed licensed electrician. Both Vermont and Preferred were notified of the Duboises’ claims. Vermont assumed the defense of Francis and Eileen, but refused to […]
Chiulli v. Liberty Mutual Insurance, Inc., et al. (Lawyers Weekly No. 11-032-15)
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-430 Appeals Court ROBERT CHIULLI vs. LIBERTY MUTUAL INSURANCE, INC., & another.[1] No. 14-P-430. Suffolk. October 1, 2014. – April 2, 2015. Present: Rapoza, C.J., Katzmann, & Wolohojian, JJ. “Anti-SLAPP” Statute. Constitutional Law, Right to petition government. Practice, Civil, Motion to dismiss, Interlocutory appeal. Consumer Protection Act, Unfair or deceptive act, Insurance. Insurance, Unfair act or practice. Statute, Construction. Civil action commenced in the Superior Court Department on March 18, 2013. A special motion to dismiss was heard by Frances A. McIntyre, J. Myles W. McDonough for the defendant. Andrew M. Abraham (Thomas C. Thorpe with him) for the plaintiff. KATZMANN, J. The defendant, Liberty Mutual Insurance, Inc. (Liberty), appeals from the denial by a Superior Court judge of a special motion to dismiss pursuant to G. L. c. 231, § 59H, the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, enacted to protect the constitutional rights of ordinary citizens to petition the government to redress their grievances.[2] The plaintiff, Robert Chiulli, having secured a large jury verdict against Liberty’s insured, filed the instant lawsuit alleging that the defendant had violated G. L. c. 93A and G. L. c. 176D by engaging in unfair and deceptive settlement practices, chiefly by refusing to provide Chiulli with a reasonable settlement offer once the insured’s liability became reasonably clear. Liberty argues that its pursuit of a jury trial on behalf of its insured is protected petitioning activity such that Chiulli’s complaint should be dismissed as “a retaliatory and punitive attack upon Liberty’s petitioning conduct.” Liberty urges that its actions are protected by petitioning immunity where “genuine issues of material fact existed in the underlying action against the insured.” Finally, it argues that application of c. 93A and c. 176D against it is an unconstitutional infringement of its State and Federal rights to a jury trial. It contends that c. 176D’s requirement that an insurer make a reasonable offer of settlement when liability is reasonably clear is the equivalent of a requirement that it forgo a jury trial and settle a tort action when there are disputes about its insured’s liability. We conclude that Liberty is not entitled here to the protections of the anti-SLAPP statute and that Liberty’s deployment of that statute would eviscerate the consumer protections embodied in c. 176D. We thus affirm the denial of its special motion […]
Associated Industries of Massachusetts Mutual Insurance Company v. Hough (Lawyers Weekly No. 11-137-13)
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‑1927 Appeals Court ASSOCIATED INDUSTRIES OF MASSACHUSETTS MUTUAL INSURANCE COMPANY vs. SHAWN HOUGH. No. 12‑P‑1927. Middlesex. September 10, 2013. ‑ November 19, 2013. Present: Rapoza, C.J., Wolohojian, & Milkey, JJ. Workers’ Compensation Act, Attorney’s fees. Practice, Civil, Attorney’s fees. Civil action commenced in the Superior Court Department on July 21, 2008. A motion for attorney’s fees and costs was heard by S. Jane Haggerty, J. Teresa Brooks Benoit for the defendant. Holly B. Anderson for the plaintiff. MILKEY, J. Pursuant to G. L. c. 152, § 11D(3), an insurer brought an action in Superior Court against Shawn Hough, seeking to recoup excess workers’ compensation benefits it had paid to him. Hough successfully defended against that action, and the sole question raised by this appeal is whether he is thereby entitled to attorney’s fees. Because we agree with the Superior Court judge that the answer is “no,” we affirm. Background. Hough was employed by Athol Table, LLC. Based on a 2002 workplace incident, Hough sought workers’ compensation benefits. By decision dated September 29, 2006, an administrative judge of the Department of Industrial Accidents (DIA) ultimately ruled in favor of the employer’s insurer, Associated Industries of Massachusetts Mutual Insurance Company (insurer). Although the administrative judge determined that Hough suffered from a permanent disability, she concluded that he failed to demonstrate that his disability was causally related to the 2002 incident. Hough initially pursued, but then abandoned, an appeal. Accordingly, the correctness of the administrative judge’s decision is not before us. Subsequent to the administrative judge’s decision, the insurer filed an action in Superior Court pursuant to G. L. c. 152, § 11D(3), seeking to recoup the partial incapacity benefits that it had been ordered to pay by an earlier conference order. After trial, a Superior Court judge allowed Hough’s motion for a required finding based on his inability to pay. The insurer does not challenge that ruling; in fact, the insurer acknowledged Hough’s inability to pay after the close of evidence. Having successfully defended against the recoupment action, Hough argued that he was entitled to attorney’s fees. Unable to identify a statute that expressly authorizes fee shifting in this specific context, Hough relied “by analogy” on various fee-shifting provisions set forth in G. L. c. 152, the workers’ compensation act (act). Discerning no statutory basis […]
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N.E. Physical Therapy Plus, Inc. v. Liberty Mutual Insurance Company (Lawyers Weekly No. 10-166-13)
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‑11284 N.E. PHYSICAL THERAPY PLUS, INC. vs. LIBERTY MUTUAL INSURANCE COMPANY. Essex. May 7, 2013. ‑ September 10, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Evidence, Hearsay, Judicial discretion, Medical bill. Practice, Civil, Judicial discretion, Motion in limine, Appellate Division: decision. Civil action commenced in the Lawrence Division of the District Court Department on June 4, 2008. The case was heard by Mark A. Sullivan, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Daniel P. Tighe (Douglas R. Tillberg with him) for the defendant. Francis A. Gaimari (Stephen B. Byers with him) for the plaintiff. The following submitted briefs for amici curiae: E. Michael Sloman for Automobile Insurers Bureau. Peter A. Biagetti & Andrew Nathanson for Fair Health, Inc. Paul R.Q. Wolfson, Shirley Cassin Woodward, & Dina B. Mishra, of the District of Columbia, & John J. Regan & Mark C. Fleming for American Insurance Association & others. David L. Arrington & Jodi L. Howick, of Utah, & Todd S. Holbrook & Jeffrey D. Adams for Mitchell International, Inc. LENK, J. After being billed by the plaintiff, N.E. Physical Therapy Plus, Inc. (NEPT), for certain medically necessary chiropractic services provided to the passenger of its insured, the defendant, Liberty Mutual Insurance Company (Liberty Mutual), maintained that the cost of those services was unreasonably high and thus refused to pay the full amount invoiced. At the ensuing trial on the dispute, Liberty Mutual sought to introduce statistical evidence from a commercial database to show that NEPT’s charges exceeded the eightieth percentile of reported charges for the same procedures and were thus unreasonable. Liberty Mutual claimed that the statistical evidence was admissible pursuant to G. L. c. 233, § 79B (§ 79B), which creates a limited exception to the hearsay rule for factual statements contained in commercial publications. Citing a decision of the Appellate Division of the District Court that concluded the same database was unreliable, a District Court judge denied Liberty Mutual’s motion to admit the database evidence. We are asked to determine whether a trial judge has discretion to consider the reliability of evidence offered under § 79B where the evidence otherwise satisfies the requirements of § 79B, and, if so, whether the judge here abused such discretion […]
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 […]
Golchin v. Liberty Mutual Insurance Company (Lawyers Weekly No. 10-149-13)
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‑11305 DIANE GOLCHIN vs. LIBERTY MUTUAL INSURANCE COMPANY. Worcester. April 2, 2013. ‑ August 8, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Civil, Judgment on the pleadings. Contract, Insurance. Insurance, Motor vehicle insurance, Construction of policy, Medical supplementary coverage, Coverage. Civil action commenced in the Superior Court Department on September 30, 2008. The case was heard by John D. McCann, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Kenneth D. Quat (Elliot Beresen with him) for the plaintiff. Myles W. McDonough (Christopher M. Reilly with him) for the defendant. E. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief. Timothy C. Kelleher, Michael C. Najjar, & J. Michael Conley, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. BOTSFORD, J. This is the second time this court has considered the present case. Again, the issue presented is whether a claimant may seek medical expense benefits under the “medical payments” coverage (MedPay) offered in a standard Massachusetts automobile insurance policy (auto policy) where those expenses were covered and paid under the claimant’s separate policy of health insurance. In Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 236-237 (2011) (Golchin I), we reversed the order dismissing the complaint filed in the Superior Court by the claimant, Diane Golchin, against Liberty Mutual Insurance Company (Liberty Mutual), concluding that Golchin had alleged facts sufficient to raise an actionable right to relief. Today, we conclude that Golchin is entitled to the MedPay benefits provided by her auto insurance policy, notwithstanding that the medical expenses at issue were covered by and paid under a separate policy of health insurance. We therefore reverse the judgment of the Superior Court allowing Liberty Mutual’smotion for judgment on the pleadings.[1] 1. Background. We briefly summarize the facts that are pertinent to this appeal, as alleged in the complaint and contained in extrinsic documents introduced by the parties before the motion judge.[2] Golchin sustained significant personal injuries, resulting in medical expenses in excess of $ 100,000, when she was involved in a motor vehicle accident as an occupant of her husband’s car. The car was insured under an auto policy issued by Liberty Mutual […]
Central Mutual Insurance Company v. True Plastics, Inc., et al. (Lawyers Weekly No. 11-091-13)
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‑439 Appeals Court CENTRAL MUTUAL INSURANCE COMPANY vs. TRUE PLASTICS, INC., & another.[1] No. 12‑P‑439. Worcester. January 14, 2013. ‑ July 10, 2013. Present: Cypher, Rubin, & Wolohojian, JJ. Insurance, General liability insurance, Insurer’s obligation to defend, Coverage. Indemnity. Practice, Civil, Presumptions and burden of proof. Words, “Temporary worker.” Civil action commenced in the Superior Court Department on September 5, 2006. The case was heard by Douglas H. Wilkins, J. Richard W. Jensen (William A. Schneider with him) for the plaintiff. Paul F. Leavis for Marciala Sanchez. WOLOHOJIAN, J. At issue is whether a worker supplied to an insured by a labor leasing firm was “furnished . . . to meet . . . short-term workload conditions” such that she was a “temporary worker” within the meaning of the commercial general liability (CGL) insurance policy issued by the insurer Central Mutual Insurance Company (Central Mutual), to the insured, True Plastics, Inc. (True Plastics). We agree with the trial judge’s determination that the particular worker at issue in this case was furnished to meet short-term workload conditions and, therefore, that she was a “temporary worker” within the meaning of the policy. A worker is a “temporary worker” within the meaning of the policy if the insured holds (at the time the worker is furnished) an objectively reasonable expectation that the worker is furnished to meet a short-term workload condition. We reject Central Mutual’s argument that a short-term workload condition must necessarily be of finite duration. Background. Marciala Sanchez was injured on October 14, 2004, while operating a molding machine at True Plastics. Sanchez was not an employee of True Plastics; she had been assigned to True Plastics by an employment agency, Dynamic Staffing, Inc.[2] Because of the accident, Sanchez made a claim for, and received, workers’ compensation benefits under Dynamic Staffing’s workers’ compensation insurance policy. As was her right (and as contemplated under the workers’ compensation scheme, G. L. c. 152, § 15[3]), she also sued True Plastics to recover for her injuries. True Plastics sought indemnification and a defense from Central Mutual, which brought the underlying action seeking a judgment declaring that it owed no duty under its CGL policy.[4] In essence, Central Mutual’s position is that Sanchez was a leased employee (excluded under the policy), rather than a temporary employee (included under […]
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 […]
Chow v. Merrimack Mutual Fire Insurance Company (Lawyers Weekly No. 11-062-13)
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‑1010 Appeals Court ISAAC CHOW vs. MERRIMACK MUTUAL FIRE INSURANCE COMPANY. No. 12‑P‑1010. Hampshire. January 8, 2013. ‑ May 15, 2013. Present: Cohen, Green, & Vuono, JJ. Insurance, Homeowner’s insurance. Contract, Insurance, Performance and breach. Practice, Civil, Instructions to jury. Negligence, Standard of care. Words, “Unoccupied.” Civil action commenced in the Superior Court Department on November 17, 2008. After transfer, the case was tried before Bertha D. Josephson, J. Mark A. Tanner for the plaintiff. John E. Garber for the defendant. GREEN, J. Sometime during late December, 2006, or early January, 2007, a house owned by the plaintiff and insured under a homeowner’s policy issued by the defendant incurred substantial damage when pipes froze, and then burst, releasing large amounts of water into the structure. The defendant denied coverage for the loss, based upon a policy exclusion for damage caused by frozen pipes if (i) the house was unoccupied at the time of the loss, and (ii) the insured failed to use reasonable care to maintain heat in the building. The plaintiff filed this action against the defendant for breach of contract and declaratory relief. After a trial, a jury returned a verdict in the defendant’s favor, and this appeal followed. At issue is whether the trial judge correctly instructed the jury that the negligence of a person entrusted by the plaintiff to maintain heat in the building should be imputed to the plaintiff, so as to establish a failure by the plaintiff, himself, to use reasonable care. We conclude that the instruction was in error, and reverse the judgment. Background. Beginning in 1987 and continuing until the summer of 2006, the plaintiff owned and operated a restaurant in Northampton known as the Panda Garden. When the restaurant opened, the plaintiff acquired a four-bedroom house located at 103 Rocky Hill Road in Hadley (the “property”), to serve as living quarters for restaurant employees. The plaintiff resides in New York, but lived at the property during the period when the restaurant was first getting established. Thereafter, for so long as the restaurant was operating, the restaurant’s general manager, Richard Lau, lived at the property and generally managed it, paying utility bills and addressing any maintenance needs. During the fall of 2006, Lau moved to a home he […]