366 Mass. 751 | Mass. | 1975
We granted further appellate review in this case solely on the issue of damages against the defendant insurance company (insurer). The Appeals Court decided that the purported cancellation of certain fire insurance policies on property owned by the plaintiff was ineffective but that the plaintiffs mortgagee bank properly took possession of the property following receipt of notices from
In order to assess the plaintiffs right to damages, it is important first to determine the nature of the claim which the plaintiff asserts. The insurer suggests that the plaintiffs claim is for a breach of contract in sending the ineffective cancellation notices. The Appeals Court opinion seems in part to treat the claim as one for breach of contract. Id. at - ,
Although the bill for declaratory relief is very general in its allegations and the plaintiffs brief in this court does not explicate any traditional tort (or contract) theory on which recovery might be based, we agree with the Appeals Court’s conclusion (at
The plaintiffs brief argues in large part that it would be unfair to deny him a chance to prove damages, now that it has been established that the master and the Superior Court judge were in error in concluding that the insurance policies were properly cancelled. However, even assuming, as the Appeals Court apparently did, that the master’s findings supported liability, the Appeals Court was correct in concluding that the plaintiff should have protected his rights in the Superior Court by moving to recommit the case to the master for findings on damages. If, as well, the master’s findings did not support any theory of liability espoused by the plaintiff, the obligation on the plaintiff to seek recommittal to the master was even greater. On the other hand, if “the facts on which the rights of the parties depend have not been ascertained at the trial it is within the power of the court, in its discretion and of its own motion, to recommit the cause for re-trial.” DeVeer v. Pierson, 222 Mass. 167, 175 (1915). See Watkins v. Simplex Time Recorder Co. 316 Mass. 217, 224 (1944); Mackey v. Rootes Motors Inc. 348 Mass. 464, 469 (1965).
We believe that there are special circumstances present here which support granting the plaintiff a further opportunity to present his claim against the insurer. Only after the Appeals Court decision (and we declined further appellate review on the point) was it clear to the plaintiff in this complicated situation that he had no viable claim against the bank for improper foreclosure of the mortgage and that his only possible claim was against the insurer. If
The case should be disposed of as stated in the opinion of the Appeals Court (at
So ordered.
309 N.E. 2d at 514-515.
309 N.E. 2d at 514-515.
The notices of the insurer’s purported cancellations stated their effectiveness as ten days after their receipt.
The policies contained a standard form of cancellation clause as then required by G. L. c. 175, § 99, as amended through St. 1951, c. 478, § 1. See now G. L. c. 175, ■§ 99, as amended through St. 1974, c. 498.
The parties are entitled hereafter to a prompt resolution of this matter. A trial in the Superior Court is more likely to produce a prompt answer than a further reference to a master.
309 N.E. 2d at 515.
The last paragraph provided that “[t]he respondents are not liable to the petitioner in respect to any matters alleged in the Bill of Complaint.”