32 Mass. App. Ct. 925 | Mass. App. Ct. | 1992
The appellant, trustee of Diamond Realty Trust (Diamond), appeals from an allowance of a motion for summary judgment filed by the defendant, General Accident Insurance Company of America (General). We hold that summary judgment should not have been granted because there is at least one genuine issue of material fact in dispute.
Diamond brought suit, seeking to establish liability for coverage. General moved for summary judgment, claiming that (1) Diamond was required by the insurance contract and G. L. c. 175, § 99, to request a reference to referees to determine the amount of loss as a condition precedent to litigation, which it had not done
General argues that Diamond’s failure to request reference prior to litigation automatically .bars Diamond from bringing suit, since it did not fulfil the provisions of G. L. c. 175, § 99.
Obviously, the letter of May 6 had a tendency to mislead the insured about the need to seek a reference and may have led Diamond not to do so. We agree that General’s- denial of liability and its failure to refer to reference in its letter could, in these circumstances, be found to be a waiver of the reference as a condition precedent to litigation.
Nor should summary judgment have been granted on the basis of General’s argument that the named trustee, Robert Lancaster, is not the real party in interest. The trustee of Diamond Realty Trust was, in fact, Robert’s wife, Linda. The beneficial and essential insurable interests are not affected by this misnomer. The complaint may easily be amended. “[W]here there are no allegations of unfair surprise or prejudice, we are not inclined to dismiss an action because of a possible technical defect in pleading [citations omitted], particularly where, as here, there is ample reason to view the named plaintiff as the real party in interest. Mass.R.Civ.P. 17(a), 365 Mass. 763 (1974).” Henderson v. D'Arnolfo, 15 Mass. App. Ct. 413, 428 (1983). General has suffered no prejudice and faces no real possibility of multiplicity of suits against it. See Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 297 (1977).
Judgment reversed.
General Laws c. 175, § 99, Twelfth (1984 ed.), set out the following standard form policy provision included in this policy:
“In case of loss under this policy and a failure of the parties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be referred to three disinterested [referees], and such reference, unless waived by the parties, shall be a condition precedent to any right of action in law or equity to recover for such loss. . . .”
In support of this argument, General submitted an affidavit from its property claims supervisor, which stated, among other things, that Diamond and General “failed to agree as to the amount of loss....” The fact that they did not agree as to value does not mean, however, that they ever discussed value, or disagreed as to it, and does not preclude a finding of waiver.
On the other hand, before concluding with general language reserving “all of its rights and defenses” and insisting upon “strict compliance with all policy provisions,” the letter stated that General “advises you that notwithstanding the denial of the claim stated, it [General] expressly rejects any and all statements contained in documents submitted with reference to the amount of actual cash value and amount of loss” (emphasis added).