2009 Mass.App.Div. 154 (2009), 08-ADMS-70013, O'Sullivan v. Hingham Mut. Fire Ins. Co.

Docket Nº:08-ADMS-70013.
Citation:2009 Mass.App.Div. 154
Opinion Judge:GARDNER, J.
Party Name:Sandra R. O'SULLIVAN v. HINGHAM MUTUAL FIRE INSURANCE COMPANY.
Attorney:James C. O'Sullivan, Esq., O'Sullivan & Bray, Greenfield, MA for plaintiff. Ethan Warren, Esq., Warren, Hensley & Bowen LLP, Boston, MA, for defendant.
Judge Panel:Present: LoConto, EJ., Rutberg & Gardner, JJ.
Case Date:July 30, 2009
Court:Massachusetts Appellate Division
 
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Page 154

2009 Mass.App.Div. 154 (2009)

Sandra R. O'SULLIVAN

v.

HINGHAM MUTUAL FIRE INSURANCE COMPANY.

No. 08-ADMS-70013.

Massachusetts Appellate Division, District Court Department, Western District.

July 30, 2009

Heard Oct. 24, 2008.

In the Greenfield Division, Docket No. 0641-CV-0338, Ryan, J.

James C. O'Sullivan, Esq., O'Sullivan & Bray, Greenfield, MA for plaintiff.

Ethan Warren, Esq., Warren, Hensley & Bowen LLP, Boston, MA, for defendant.

Present: LoConto, EJ., Rutberg & Gardner, JJ.

OPINION

GARDNER, J.

The plaintiff, Sandra R. O'Sullivan (" O'Sullivan" ), brought this action to recover damages for the alleged breach of contract and G.L. c. 93A violation by the defendant, Hingham Mutual Fire Insurance Company (" Hingham" ), in denying her claim for benefits under the " collapse" provision of her businessowners insurance policy, and in failing to a make a reasonable investigation or offer of settlement under G.L. c. 176D before denying liability. The jury returned a verdict in favor of O'Sullivan on the breach of contract claim. The trial judge, who had reserved the G.L. c. 93A issue, also found for O'Sullivan. Hingham appealed.

O'Sullivan owns a single-story building in Greenfield that houses Harper's Package Store.1 Near the back of the store is a walk-in beer cooler. The cooler's wooden floor sits above a dirt-floored crawl space. As early as April, 2003, O'Sullivan noticed a " little space" in the front of the cooler. By September, 2004, she had observed concaving on both sides of the cooler and bowing at the back, and that the space in front had widened.

Sometime in late October, 2004, O'Sullivan arrived at the store to discover that the back of the cooler had fallen through the floor, leaving the floorboards, she testified, " broken straight across and sticking up." On October 20th, she contacted Hingham and filed a claim under the " collapse" provision of her businessowners insurance policy. The policy, effective from March 18, 2004 to March 18, 2005, excluded coverage for loss caused by collapse " except as provided in the Additional Coverage for Collapse," which provided:

Collapse-" We" pay for loss caused by direct physical loss involving collapse of a building or structure or any part of a building or structure Page 155

caused only by one or more of the following: ... b. hidden decay.

...

Collapse does not include settling, cracking, shrinking, bulging, or expanding.

Hingham sent an adjuster, Edward Popoli (" Popoli" ), to inspect the floor on October 22, 2004. Popoli testified that he felt himself " listing" toward the cooler as he approached from the front. Through an opening where the boards had lifted in the back of the cooler, he also observed deterioration and rot. He concluded that the floor had merely " settled," rather than collapsed. Hingham denied the claim.

In December, 2004, O'Sullivan hired Renaissance Builders to determine what had caused the damage. After cutting openings in the floor, Marvin Moss (" Moss" ), the project manager, concluded that there was " extreme rot to the existing floor system" caused by trapped moisture in the crawl space. Renaissance Builders repaired and replaced the cooler floor at a cost of $10,546.00. O'Sullivan forwarded to Hingham pictures of the damage and repairs, together with Moss' report. Hingham again denied her claim.

O'Sullivan subsequently sent Hingham a...

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