Vermont Mutual Insurance v. Zamsky
916 F. Supp. 2d 156
D. Mass.2012Background
- Vermont Mutual issued homeowners policies to the Zamskys for properties in Sharon and Melrose; the Falmouth property is not an insured location.
- Exclusion in the Vermont policies bars bodily injury arising out of a premises owned or rented by an insured that is not an insured location.
- Nov. 27, 2008 incident at the Falmouth property involved a movable fire pit and gasoline; group including Zamsky son Andrew and others were burned.
- Renata Ivnistkaya sued Zamsky in Middlesex Superior Court for negligence; Vermont defended under a reservation of rights.
- Massachusetts law governs the interpretation of the exclusion; the dispute centers on whether the injury on the Falmouth premises “arose out of” those premises despite the Falmouth property not being an insured location.
- Court concludes there are no material facts in dispute and denies Vermont’s summary judgment while granting the other defendants’ motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the injury on the Falmouth property arise out of the premises under the exclusion? | Vermont: injury arose from the premises’ use (fire pit) on Falmouth property. | Zamsky/defendants: injury did not arise out of the premises; not a condition of the property. | No; injury did not arise out of the premises; exclusion does not apply. |
| Do Callahan and Commerce control the result on the exclusion? | Vermont argues the exclusion should apply following those decisions. | Callahan/Commerce distinguish when injury arises from premises or conditions; not applicable here. | The decisions support applying exclusion only where injury arises from a condition of the premises; here it did not. |
Key Cases Cited
- Callahan v. Quincy Mutual Fire Insurance Company, 50 Mass.App.Ct. 260 (2000) (exclusion tested; injury did not arise from Marshfield premises as a condition)
- Commerce Insurance Co., Inc. v. Theodore, 65 Mass.App.Ct. 471 (2006) (injury arising from premises repair can arise from premises; distinction relevant to exclusion)
- Duggan v. The Travelers Indemnity Co., Inc., 383 F.2d 871 (1st Cir. 1967) (Mass. law interpretation of “arising out of” premises exclusion)