Boazova v. Safety Ins. Co.

• Decision Date: 29 May 2012
• Docket Number: SJC–10908
• Citation: 968 N.E.2d 385,462 Mass. 346
• Parties: Ella BOAZOVA v. SAFETY INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 346
968 N.E.2d 385

Ella BOAZOVA
v.
SAFETY INSURANCE COMPANY.

SJC–10908

Supreme Judicial Court of Massachusetts,
Middlesex.

Argued March 6, 2012.
Decided May 29, 2012.

[968 N.E.2d 387]

Richard Moynihan, Boston, for the defendant.

Daniel F. McCarthy, Melrose, for the plaintiff.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & GANTS, JJ.

SPINA, J.

[462 Mass. 346]On July 17, 2007, Ella Boazova filed a complaint in the Superior Court against Safety Insurance Company (Safety), alleging that Safety improperly denied coverage under her homeowner's insurance policy for damage to her house. Count I of the complaint alleged breach of contract,¹ and Count II alleged unfair or deceptive acts or practices in violation of G.L. c. 93A. Safety filed an answer denying the allegations and raising [462 Mass. 347]numerous affirmative defenses. On October 23, 2008, after extensive discovery, Boazova filed a motion for partial summary judgment on the ground that there were no genuine issues of material fact with respect to Count I and, therefore, she was entitled to judgment as a matter of law on that count. Safety filed a cross motion for summary judgment as to both counts of the complaint. After a hearing, a judge denied Boazova's motion for partial summary judgment, granted Safety's cross motion for summary judgment, and ordered that the complaint be dismissed. Judgment entered for Safety on November 25, 2008. Boazova appealed. A divided panel of the Appeals Court affirmed, Boazova v. Safety Ins. Co., 78 Mass.App.Ct. 438, 939 N.E.2d 793 (2010), and we granted Boazova's application for further appellate review. For the reasons that follow, we affirm.

1. Background. We summarize the undisputed facts contained in the summary judgment record, reserving some facts for later discussion in conjunction with specific issues. On June 26, 2001, Boazova purchased a house in Arlington that had been constructed in 1947. It is a two-story, wood-framed, single-family structure built against the side of a hill and supported by a concrete foundation, with a full basement and garage below the house. Around 1958, a concrete patio was built along the rear wall of the house at a grade that was

[968 N.E.2d 388]

higher than the home's foundation. Subsequently, a cement “cant” (an angular raised area) was installed along the edge of the patio to direct water away from the house. However, there was no waterproofing barrier or membrane between the patio and the rear wall of the house to prevent water from entering the structure's wooden frame. Approximately fifteen to twenty years ago, the house was covered with vinyl siding that extends down to the surface of the patio.

At the time she bought the house, Boazova also purchased a homeowner's insurance policy from Safety. The policy period relevant to these proceedings was from June 26, 2005, to June 26, 2006. At sometime prior to August 1, 2005, Safety modified the terms of the policy by means of an indorsement entitled “Limited Fungi, Wet or Dry Rot, or Bacteria Coverage.”

On August 1, 2005, while renovating the kitchen of Boazova's [462 Mass. 348]house, a contractor discovered severe deterioration of the wooden sill plate that rested on top of the concrete foundation at the base of the home's rear wall, as well as of the adjoining floor joists and wall studs.² Boazova described the area as “moist and falling apart” and stated that the floor underneath the bottom kitchen cabinets was “spongy and mushy.” She reported the damage to Sanviti Insurance Agency, Inc., which, in turn, prepared a property loss notice that was forwarded to Safety. Safety assigned Craig Gillespie, a claims adjuster, to investigate Boazova's claim. On August 18, 2005, he visited Boazova's property and observed the deteriorated area.

Shortly thereafter, Gillespie retained the services of Robert G. Wilkin, a professional engineer associated with CBI Consulting, Inc., to conduct a full inspection and evaluation of the damage to Boazova's house. Wilkin met with Boazova, viewed the claimed damage, and prepared a written report for Safety detailing his observations and opinions. In his report, Wilkin concluded that “the cause of the deterioration of the wood sill below the rear wall [was] the placement of the concrete patio slab adjacent to the wall and above the sill.... The concrete enclosed the sill between the plaster ceiling and the patio concrete so that water seeping onto the top of the foundation could not dry and the sill rotted.”

By letter dated October 19, 2005, Safety denied insurance coverage to Boazova. In the letter, Gillespie stated that Boazova had “informed [Safety] that ground and/or surface water entered [her] sill and rear wall due to installation of a pavement patio prior to [her] owning the residence.” Relying on an exclusion in her homeowner's policy that states that Safety “do[es] not insure for loss caused directly or indirectly by[:] Water Damage,” Gillespie informed Boazova that because “the water entered [her] home through the rear wall of [her] dwelling and the sill area,” the damage was not covered under her policy. Subsequently, Gillespie reinspected Boazova's house. By letter dated May 2, 2006, he reaffirmed Safety's denial of her claim because the damage (1) was caused by a combination of surface water, [462 Mass. 349]deterioration, settling, and improper construction of the concrete patio; and (2) was not encompassed within the indorsement, which provides $10,000 in coverage for fungi, wet or dry rot, or bacteria, where the loss was not the result of a peril insured against.

Boazova proceeded to hire John W. Mroszczyk, a professional engineer, to inspect her house, which he did on August

[968 N.E.2d 389]

28, 2006. In his written report, Mroszczyk stated that “[b]ecause of the concrete patio, the sill plate and about 10 to 12 inches of the exterior were below grade. This permitted moisture to migrate down to the foundation.” It was his professional opinion, to a reasonable degree of engineering certainty, that “[t]he cause of the rotted sill plate, wall studs, and floor joists [was] the concrete patio that was poured directly against the house. This permitted moisture to migrate to the top of the foundation, rotting the clapboard siding, the 1x exterior, and eventually the sill plate, floor joists, and wall studs.” Mroszczyk further opined that “[t]he collapse in the outer part of the floor joists, due to the rot, eventually would have resulted in a complete failure of the floor system.”

The present action ensued. In his memorandum of decision and order dated November 21, 2008, denying Boazova's motion for partial summary judgment and granting Safety's cross motion for summary judgment, the judge found that there were no genuine issues of material fact and concluded that Safety's denial of coverage for the claimed loss was proper, as a matter of law, based on the terms of Boazova's policy. First, the judge stated that because “the rotted wood on Boazova's property as described by numerous experts constitute[d] wet and/or dry rot,” the indorsement that specifically provided limited coverage for loss caused by fungi, wet or dry rot, or bacteria must serve as the basis for her claim. Next, the judge stated that even if the language of the policy were construed in favor of Boazova such that coverage applied to fungi, wet or dry rot, or bacteria resulting from a peril insured against, namely hidden seepage or leakage of water, Boazova still would need to prove that the damage occurred during the policy period. This, the judge concluded, she could not do. According to the judge, it was “undisputed that the water emanated from the outside and [462 Mass. 350]seeped or leaked in through the gap between the concrete patio and the rear wall of the house. The inspectors report[ed] that it was this gap and the placement of the patio, built sometime before Boazova purchased the property, that ultimately caused the damage.” The judge stated that because the patio, in its present state, was in existence prior to the time that Boazova purchased the house in 2001, she was unable to satisfy her burden of proving that the “hidden seepage” provision covered this particular damage. Finally, the judge continued, even if Boazova had met her burden of establishing coverage, Safety had adequately shown that the specific policy exclusion for loss caused by surface water, irrespective of any other cause or event, precluded recovery for an otherwise covered claim.

2. Discussion. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). We review a decision to grant summary judgment de novo. See Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215, 786 N.E.2d 817 (2003). “In a case like this one where both parties have moved for summary judgment, the evidence is viewed in the light most favorable to the party against whom judgment [has entered].” Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass.App.Ct. 245, 248 n. 4, 921 N.E.2d 121 (2010). See DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66, 70, 876 N.E.2d 421 (2007). A party seeking summary judgment may satisfy its burden of demonstrating the absence of triable issues, see Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989), by showing that the party opposing the motion

[968 N.E.2d 390]

has no reasonable expectation of proving an essential element of its case. See Kourouvacilis v. General Motors Corp., supra.

The proper interpretation of an insurance policy is a matter of law to be decided by a court, not a jury. See Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234 (1982). Like all contracts, if the language of an insurance policy is unambiguous, then we construe the words “in their usual...