57 Mass. App. Ct. 350 | Mass. App. Ct. | 2003
The plaintiff, Franklin Simon (Simon), trustee of the 125 Sea Street Nominee Trust (Trust), appeals from a summary judgment entered in favor of the defendant, National Union Fire Insurance Company of Pittsburgh, PA (National). All the relevant materials that were before the motion judges are also before us on appeal. “In this posture, for purposes of our review, we look at a trial judge’s decision to allow a motion for summary judgment, albeit useful, as a ‘nondispositive prelude.’ ” Harrison v. Boston Financial Data Servs., Inc., 37 Mass. App. Ct. 133, 133 n.l (1994).
Simon, on behalf of the Tmst, notified National, its insurer, of the loss and submitted claims for property damage and lost rental value. On March 28, 1996, National denied coverage under the policy. The policy in question was procured for the Tmst through its insurance broker, Sheppard, Riley, Coughlin Insurance Agency, Inc. (SRC). Simon, on behalf of the Tmst, then commenced this action against National, SRC, and SRC’s employee, John Swanson. Simon claimed that the policy covered the 125 Sea Street property at the time of the fire; alternatively, Simon alleged that if the property was not insured, SRC was negligent in failing to see to it that there was insurance for the premises.
On October 31, 1997, a Superior Court judge denied a summary judgment motion filed by National.
Prior to the policy’s issuance, Simon (or SRC) had supplied National with a schedule listing certain real estate within the portfolio of the Simon Companies. Comprised of both residential and commercial space, twenty-six properties (situated in Massachusetts, New Hampshire, and Rhode Island) were identified by Simon on this schedule, which was formally made an attachment to the policy, as issued.
Of special significance to this case, some, but not all, of the properties had an identified dollar value (under heading “real property”) and rent collectible. For the 125 Sea Street property, however, no dollar value or rent was shown; instead, where these values would have been placed on the schedule, there were simply three dash marks (“---”).
By an endorsement to the policy, the insured and insurer “agreed” that “special terms and conditions” governed the maximum limit of National’s liability, which, in pertinent part, are:
“2. The premium for this policy is based upon the Statement of Values on file with [National], or attached to this policy. In the event of loss hereunder, liability of [National] shall be limited to the least of the following:
“(b) the total stated value for the property involved, as shown on the latest Statement of Values on file with [National] or attached to this policy, less applicable deductible(s); . . . .”
The meaning of this endorsement is not reasonably disputed. If Simon were to establish an insurable loss for 125 Sea Street, National’s liability limit would be governed by paragraph 2(b). Since 125 Sea Street has no stated value, Simon argues more generally that the insurance policy was described as a “blanket” policy, and, as such, ought to cover 125 Sea Street, which was listed on the policy (along with the nominee trust of like name); Simon does not point to any other representation or statement by National, within the text of the insurance policy, to establish that 125 Sea Street was insured under the policy. It follows from his argument that insurance coverage could be afforded him up to the $68,883,551 limit. Thus, Simon’s reading of the policy would lead to the result that the six vacant properties
Furthermore, it cannot fairly be maintained that if 125 Sea Street was not covered, the “errors and omissions” clause in Simon’s policy serves a saving function, allowing the insured simply to report the error to National as soon as possible after the loss (which Simon did), and, upon payment of an appropriate premium, obtain the desired coverage.
On the critical issue of the parties’ intent, we, like the motion judge, can properly consider all the submissions respecting the negotiation of the policy and other circumstances attending its issuance.
The judge’s granting summary judgment in favor of National was eminently sensible.
In short, the plaintiff did not meet, by “countervailing materials,” the moving party’s demonstration, “by reference to material described in Mass.R.Civ.P. 56(c),” 365 Mass. 824 (1974), of its entitlement to summary judgment. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Accordingly, we conclude, as matter of law, that the 125 Sea Street property was not covered by the policy.
Judgment affirmed.
Simon later commenced a separate action against his insurance advisor, J.H. Albert International Insurance Advisors, Inc.; this action was subsequently consolidated with the action against National, SRC, and Swanson.
The judge reasoned that the policy (specifically an attached so-called statement of values) was ambiguous as to whether the 125 Sea Street property was covered.
It is settled law that a Superior Court judge may act as the second judge did here. See Riley v. Presnell, 409 Mass. 239, 240, 242 (1991); Cataldo Ambulance Serv., Inc. v. Chelsea, 426 Mass. 383, 389 (1998). See also Lummus, The “Law of the Case” in Massachusetts, 9 B.U. L. Rev. 225, 234 (1929).
We are not unmindful “that in cases involving a state of mind, where credibility of witnesses may be important, summary judgment may be inappropriate.” Welford v. Nobrega, 30 Mass. App. Ct. 92, 99 (1991), S.C., 411 Mass. 798 (1992).
It is not contested that the above-described schedule was an integral part of the National policy, as issued.
It is noteworthy that on this same schedule, there were five other properties that had no assigned dollar value or rent shown, but instead had the same three dash marks in the place where such values would have been noted. Of this subset, four were described as being “vacant land,” and the fifth a “vacant service station,” which, like the 125 Sea Street property, was said “to be demolished” in anticipation of being developed into condominiums or apartments.
That clause provides: “Any unintentional error or omission made by the Insured shall not be void or impair the insurance hereunder provided the Insured reports such error or omission as soon as reasonably possible after discovery and pays appropriate premium thereon. In the event that the Insured commits an unintentional error the Company’s liability shall be limited to the occurrence limit of liability or the amount indicated on the separate errors and omissions limitation . . . whichever is less.”
The parties’ disagreement as to the proper interpretation does not, in and of itself, create such an ambiguity. Jefferson Ins. Co. v. Holyoke, 23 Mass. App. Ct. 472, 475 (1987). Further, since the policy here was a negotiated contract, by and between SRC and National, there is no occasion to invoke the concept that ambiguities are to be resolved against the insurer.
Simon had “the initial burden of proving coverage within the policy description of covered risks.” Camp Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass. App. Ct. 318, 321 (1991). There being no dispute as to the underlying facts, it is the “ ‘meaning and effect of the various documents’ . . . that are at issue.” Rotundi v. Arbella Mut. Ins. Co., 54 Mass. App. Ct. 906, 907 (2002), quoting from Samagaio v. Davidson, 6 Mass. App. Ct. 773, 776 (1979).