22 Mass. App. Ct. 918 | Mass. App. Ct. | 1986
A policy of the defendant, Transportation Insurance Company, insured generally against fire (and certain other casualties) a three-decker tenement in Worcester owned by the plaintiff, Will Realty Corporation. By the terms of the policy coverage was denied where fire occurred when the property was “vacant,” having been so for more than sixty consecutive days; however, this provision did not apply to “buildings in due course of construction.”
In the present nonjury action on the policy, a judge of the Superior Court made findings of fact which are in essence uncontroverted. The last tenant
The judge said that the words “vacant” and “in due course of construction” were ambiguous, and he then concluded on the facts that the property had not been “vacant" for the specified period, but that, in any event, it was “in due course of construction.” The judge erred.
In the degree that a word is considered apart from its context, it becomes “ambiguous,” and if one then invokes doctrines such as that interpretation goes against the party who prepared the document, one can reach odd results. Here the judge evidently read “vacant” in some abstract way and may have thought the appearance of the workmen sufficiently interrupted the sixty days and thereby rendered the premises nonvacant within the meaning of the policy. However, the plaintiff had admitted the opposite in its pleadings, and on appeal to this court makes no attempt to support the judge’s mling on the point. The policy provision reflects the commonplace observation that the risk of casualty is higher when premises remain unattended. “Vacant” is to be read in that light, and the plaintiff evidently agrees that premises may be vacant despite sporadic entry. See Dunton v. Connecticut Fire Ins. Co., 371 F.2d 329, 331 (7thCir. 1967); Ekelchik v. American Cas. Co., 56 N.J. Super. 171, 177 (1959). Cf. McKinney v. Providence Washington Ins. Co., 144 W. Va. 559, 571 (1959).
“Buildings in due course of construction” is to be read in the same light. If, as applied to a finished building, “construction” can be taken to include remodelling or refurbishing, still the phrase looks to some substantial continuing activities of that sort on, rather than off, the property, and here there were none on the property (and indeed, virtually none off). Counsel have found a few decisions that bear somewhat on the meaning of similar phrases in more or less similar contexts. As far as the cases go, they appear to confirm or not to challenge the conclusion we reach here. See Crescent Co. v. Insurance Co. of North America, 266 S.C. 598, 602-603 (1976); Mortgage Bancorporation v. New Hampshire Ins. Co., 67 Or. App. 261, 264-265 (1984); Myers v. Merrimack Mut. Fire Ins. Co., 601 F.Supp. 620, 623 (C.D. Ill. 1985). Cf. Brouillette v. Phoenix Assur. Co., 340 So.2d 667,
The judgment for the plaintiff on the policy is reversed and judgment will enter for the defendant.
So ordered.
“Vacancy and Unoccupancy Clause: This Company shall not be liable for loss caused by vandalism or malicious mischief occurring after a described building (whether intended for occupancy by owner or tenant) has been vacant or unoccupied for a period of 30 consecutive days, nor for loss caused by any other insured peril after it has been vacant for a period of 60 consecutive days, regardless of the date coverage is effective. This condition shall not apply to one and two family dwellings nor to buildings in due course of construction.”
The plaintiff did not appeal from the judge’s holding against him on a claim founded upon G. L. c. 93A.