Buirkle v. Hanover Ins. Companies, Civ. A. No. 91-40116-K.

• Decision Date: 27 August 1993
• Docket Number: Civ. A. No. 91-40116-K.
• Citation: Buirkle v. Hanover Ins. Companies, 832 F.Supp. 469 (D. Mass. 1993)
• Parties: Harold W. BUIRKLE, Plaintiff, v. The HANOVER INSURANCE COMPANIES, Defendant.
• Court: U.S. District Court — District of Massachusetts

832 F. Supp. 469

Harold W. BUIRKLE, Plaintiff, v. The HANOVER INSURANCE COMPANIES, Defendant.

Civ. A. No. 91-40116-K.

United States District Court, D. Massachusetts.

August 12, 1993.

Final Judgment August 27, 1993.

Charles E. Schaub and Susan B. Tuchman, Hinckley, Allen, Snyder & Comen, Boston, MA, for plaintiff.

Lauren B. Pillsbury, Morrison, Mahoney & Miller, Boston, MA, for defendant.

OPINION

KEETON, District Judge.

The decisive issue in this case is whether the defendant, the Hanover Insurance Companies ("Hanover"), insurer under the liability insurance coverages of two policies issued to plaintiff, Harold W. Buirkle, plaintiff ("Buirkle"), had a duty to defend Buirkle in AroChem International, Inc. v. Buirkle, 968 F.2d 266 (2d Cir.1991) (the "Underlying Action"). Hanover declined to defend. Counsel engaged by Buirkle defended to a successful conclusion.

After Phase One of a nonjury trial, and subject to reconsideration as provided in the Order attached to this Opinion, I find for the defendant on this issue for the reasons explained in this Opinion.

Before stating my findings and conclusions on the merits, I address procedural matters that affected development of this case and illustrate some recurring obstacles to prompt, efficient, and just resolution of disputes on the merits.

I. Cross-Motions for Summary Judgment and Alternatives

A. Genuinely Disputed and Material Adjudicative Facts

Early in the history of this case, the parties filed cross-motions for summary judgment.

As a matter of prudential case management, it is my practice to discourage such motions and encourage, in their stead, a trial on stipulated facts of the potentially dispositive issue or issues that are the subject of one or both of the proposed cross-motions. In some circumstances (as this case illustrates), a first-phase trial may be limited to an issue that is dispositive of the entire case under one possible outcome, though leaving other issues to be tried in a later phase or phases under another possible outcome.

1. Historical Facts

A dispute of fact exists if, on the evidence before the court, reasonable factfinders could differ about some historical fact (what happened, when, and where). If the fact in dispute is material to some adjudicative issue, the existence of the dispute defeats both cross-motions for summary judgment. The dispute must be resolved by a factfinder (the jury, if one has been demanded, or the judge as factfinder in a nonjury trial).

2. Evaluative Determinations

Even if all material historical facts are undisputed, a case cannot be decided on cross-motions for summary judgment if a reasonably disputable evaluative determination is essential to disposition and it is the kind of evaluative determination that, under applicable precedents, is one of "adjudicative fact" and must therefore be made by the factfinder. Cf. Springer v. Seamen, 821 F.2d 871, 876 (1st Cir.1987) ("Not only ordinary fact questions, but also evaluative applications of legal standards (such as the legal concept of `foreseeability') to the facts are properly questions for the factfinder.") (citation, internal quotation marks, and footnote omitted) (quoted with approval in Dedham Water v. Cumberland Farms Dairy, 972 F.2d 453, 457 (1st Cir.1992) (causation); and Swift v. United States, 866 F.2d 507, 511 (1st Cir.1989) (causation)).

B. Nonadjudicative Factfinding

Even if disputable evaluative determinations must be made to decide a case, however, it does not necessarily follow that they cannot be made by a trial court on cross-motions for summary judgment.

For example, it may be argued that, in the circumstances of the case, one or more evaluative determinations must be made by a court in order to decide an issue of law. In such circumstances, these determinations are interwoven with the legal ruling; because the evaluative determinations are essential premises of the legal ruling, it is difficult if not impossible to state the legal ruling precisely without incorporating these evaluative premises into the statement. For that reason, the evaluative premises are subject to nondeferential review on appeal, rather than review under the deferential standard of Federal Rule of Civil Procedure 52(a). Otherwise, different outcomes of like cases in different trial courts, decided by different "factfinders," would utterly frustrate the aim of the legal system that like cases be decided in the same way, regardless of the identity of the decisionmakers to whom the various cases happen to be assigned.

Stated another way, the argument is that evaluative determinations of this kind, to the extent that they are determinations of fact in any sense, are determinations of "premise facts" — that is, nonadjudicative facts that serve as premises of a legal ruling that, unless overturned on appeal, have the force of precedent. See Robert E. Keeton, Legislative Facts and Similar Things: Deciding Disputed Premise Facts, 73 Minn.L.Rev. 1 (1988) (cited hereafter as Premise Facts).

In the case now before this court (and in cases of this kind generally) if neither party contends, even in the alternative, that evaluative determinations required to decide the issues raised by the cross-motions for summary judgment should be made by an adjudicative factfinder, the evaluative nature of those determinations is not necessarily an obstacle to final decision of issues of this kind on the pending cross-motions for summary judgment.

If either party contends otherwise, however, even in the alternative, proceeding with cross-motions for summary judgment runs a high risk of a substantial waste of private and public resources. See, e.g., Continental Grain v. Puerto Rico Maritime Shipping, 972 F.2d 426, 429 n. 7 (1st Cir.1992) (citing Boston Five Cents Sav. Bank v. Secretary of the Dep't of Housing and Urban Dev., 768 F.2d 5, 11-12 (1st Cir.1985)).

C. The Stipulation in This Case

The parties to this case responded positively to the court's encouraging them to agree to a Phase One Trial of duty-to-defend issues on stipulated facts. The stipulated facts are as follows:

1. Buirkle was a named insured under a Homeowners Policy issued by Hanover, a true and accurate copy of which is attached hereto as Exhibit "A."

2. Buirkle was also a named insured under a Personal Catastrophe Liability Policy issued by Hanover, a true and accurate copy of which is attached hereto as Exhibit "B."

3. On or about May 3, 1990, an action was brought in New York state court against Buirkle (the "Underlying Action"). The Underlying Action was removed to the United States District Court for the Southern District of New York on or about June 5, 1990. A true and accurate copy of the complaint against Buirkle in the Underlying Action is attached hereto as Exhibit "C."

4. Buirkle gave Hanover written notice of the Underlying Action on or about June 1, 1990. A true and accurate copy of the notice is attached hereto as Exhibit "D."

5. On or about June 26, 1990, Hanover gave Buirkle written notice that it would not provide him with a defense in the Underlying Action. A true and accurate copy of the notice is attached hereto as Exhibit "E."

6. Buirkle again requested that Hanover provide him with coverage and a defense by letter dated September 4, 1990, a true and accurate copy of which is attached hereto as Exhibit "F."

7. Buirkle again requested that Hanover participate in resolving the matter of his coverage and defense by letter dated January 4, 1991, a true and accurate copy of which is attached hereto as Exhibit "G."

8. Hanover would not defend Buirkle in the Underlying Action.

9. As a result, Buirkle retained his own counsel to defend his interests in the Underlying Action.

10. The Underlying Action was tried before a jury from June 3 through 6, 1991. On June 6, 1991, after the plaintiffs in the Underlying Action presented their case, the court granted a directed verdict in Buirkle's favor, and later issued a judgment in accordance with the verdict. The plaintiffs appealed from the judgment to the Court of Appeals for the Second Circuit. The Second Circuit affirmed the district court's decision.

11. Buirkle has incurred costs in defending himself in the Underlying Action.

(Docket No. 31, filed in open court October 1, 1992, entered in Docket December 4, 1992).

D. Post-Stipulation Proceedings in This Case

On November 17, 1992, this case was called for nonjury trial on Phase One, limited to the issue of duty to defend. The parties offered in evidence their Stipulation of Facts, quoted above. Neither party offered any additional evidence. After hearing oral argument on the day of trial, I set a conference for December 11, 1992 to schedule proceedings for determination of damages should plaintiff prevail on liability, and took Phase One of the case under advisement.

At the conference of December 11, 1992, I advised the parties of my concern about lack of evidence on some potentially significant liability issues and suggested the possibility of reopening the evidence in Phase One. I allowed the parties time to submit a further stipulation or further proffers before I determined whether to reopen the evidence.

At further proceedings in the Phase One trial on February 10, 1993, I overruled plaintiff's objections to reopening the evidence and received additional evidence by affidavit, though sustaining objections to some parts of affidavits received. I took under advisement issues with respect to whether some parts of the affidavits would be received for consideration by the court only as to "premise" facts and not as to "adjudicative" facts. I also set a schedule for submission of additional memoranda by the parties.

After full consideration of all matters taken under advisement, I now conclude that there are indeed some "premise" fact issues that must be determined in this case, and some genuinely disputed and material adjudicative fact issues as well.

As to the reopening of evidence...