Belanger v. Silva

• Decision Date: 04 February 1975
• Docket Number: No. 73-135-A,73-135-A
• Citation: 114 R.I. 266,331 A.2d 403
• Parties: Joseph BELANGER et ux. v. Armand G. SILVA d.b.a. Maple Hill Nursery v. JOHN J. CLARKE INSURANCE, INC., et al. ppeal.
• Court: Rhode Island Supreme Court

Page 403

331 A.2d 403

114 R.I. 266

Joseph BELANGER et ux. v. Armand G. SILVA d.b.a. Maple Hill Nursery v. JOHN J. CLARKE INSURANCE, INC., et al.

No. 73-135-Appeal.

Supreme Court of Rhode Island.

Feb. 4, 1975.

[114 R.I. 268] Nolan & Dailey, Peter D. Nolan, Leo J. Dailey, Coventry, for plaintiffs.

[114 R.I. 269] Robert R. Afflick, David G. Lussier, West Warwick, for Armand G. silva.

Hanson, Curran, Bowen & Parks, A. Lauriston Parks, Providence, for John J. Clarke, Ins., Inc.

Keenan, Rice, Dolan & Reardon, John F. Dolan, Roderick A. J. Cavanagh, Providence, for Shelby Mutual Ins. Co.

OPINION

ROBERTS, Chief Justice.

This civil action for negligence was brought by Joseph and Viola Belanger in 1970 against Armand G. Silva, doing business as Maple Hill Nursery. Silva commenced a third-party suit against John J. Clarke Insurance, Inc. (Clarke), who joined Shelby Mutual Insurance Company (Shelby) as an additional third-party defendant under Silva's third-party complaint. The action against Clarke is for breach of its agreement with Silva to procure liability insurance for Silva's business. The action against Shelby is upon the insurance contract allegedly issued by Shelby. Shelby filed a cross-claim against Clarke in which it alleged that Clarke negligently omitted to procure a liability insurance policy for Silva and, thus, ought to indemnify Shelby to the extent of its liability to Silva. Clarke, the insurance agent, moved for summary judgment. The trial justice granted Clarke's motion with respect to Silva's claim but denied the motion with respect to Shilby's cross-claim against Clarke for indemnification to the extent of its liability for Silva's loss. Silva appeals from the judgment resulting from the trial justice's order granting summary judgment to Clarke.

In passing upon a motion for summary judgment under Super.R.Civ.P. 56, the trial justice must examine the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, to determine whether they show a genuine issue of material fact and, if not, whether the moving party is entitled to judgment under the applicable law. Berberian v. O'Neil, 111 R.I. 354, 302 A.2d 301 (1973); Marandola v. Hillcrest Builders, Inc., 102 R.I. 46, 227 A.2d 785 (1967). The decision of this court in Cardente v. Maggiacomo Ins. Agency, 108 R.I. 71, 272 A.2d 155 (1971), established the rule of law which is controlling with respect to the instant case. In Cardente, this court...