Burke v. Foremost Insurance Company, 18 Mass. L. Rptr. No. 28, 625 (MA 12/13/2004), 200300904A.
| Decision Date | 13 December 2004 |
| Docket Number | No. 200300904A.,200300904A. |
| Citation | 18 Mass. L. Rptr. No. 28, 625 |
| Parties | Gregory P. Burke v. Foremost Insurance Company et al.<SMALL><SUP>1</SUP></SMALL> |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Plaintiff Gregory P. Burke seeks to recover for property damage to his mobile home alleging breach of contract by defendant Foremost Insurance Company and breach of warranty by defendant Fleetwood Travel Trailers of Virginia, Inc. This matter is now before the court on separate motions for summary judgment by defendants Foremost Insurance and Fleetwood. On October 20, 2004, a hearing was held on both summary judgment motions. For the reasons set forth below, Foremost Insurance's Motion for Summary Judgment is ALLOWED; and Fleetwood's Motion for Summary Judgment is ALLOWED.
This court summarizes the relevant facts in the light most favorable to the plaintiff. Remy v. MacDonald, 440 Mass. 675, 676 (2004).
On May 9, 2002, plaintiff notified Foremost Insurance that his mobile home had suffered two types of damage: the interior of the trailer had extensive mold damage and there was a large hole in the roof. Foremost Insurance paid part of the claim but denied the claim for water damage. The denial was based on a policy exclusion for manufactured defects and loss caused by leakage from rain.
Plaintiff's father, Philip Burke, had purchased the mobile home from Fleetwood on May 1, 1992. The mobile home was a 1992 Prowler Regal Trailer. It was kept on a Cape Cod campground. From the time purchased until 2000, plaintiffs father used the mobile home on the weekends six months out of the year. (The campground was closed from October through April.) Plaintiff's father made numerous repairs to the mobile home dating back to the first year that it was bought.
On June 13, 2000, plaintiff's father died. Plaintiff then took over the loan payments and maintenance of the mobile home. While cleaning out his father's office, plaintiff found a folder containing Fleetwood documents. Amongst the documents was a "Full One-Year Warranty" to "the first retail purchaser and his transferee."
Plaintiff spoke with Mr. Doddi, Fleetwood's Northeast Sales Representative. Doddi stated that the roof defect was a known problem. He also stated that the mobile home was insured for a year and the roof was insured for twelve (12) years under a separate warranty.
Effective November 13, 2001 through November 13, 2002, plaintiff insured the mobile home with Foremost Insurance. Without inspecting the mobile home or its rubber roof, Foremost Insurance issued the policy. In pertinent part, the policy states,
We insure risk of direct, sudden and accidental physical loss to the property described in Coverage A — Dwelling, Coverage B — Other Structures and Coverage C — Personal Property unless the loss is excluded elsewhere in this policy.
. . .
We do not insure loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently to the loss.
. . .
10. Loss caused by:
a. Wear and tear, marring, scratching, deterioration; or
b. Latent defect, mechanical breakdown, manufactured defect, mechanical failure.
. . .
15. Loss due and confined to leakage from rain, sleet or snow or its resulting damage whether or not wind driven.
After leaving it unattended for six months, plaintiff opened the mobile home on May 8, 2002 and observed extensive water damage to the interior, a large hole in the roof, and debris in the hole. The interior of the mobile home had been destroyed by mold and mildew.
On May 9, 2002, plaintiff filed a property damage claim with Foremost Insurance. Adjuster Ed Levesque was assigned to investigate the claim. The investigation revealed that the roof was defective and had been extensively patched over the years. He found at least seven patches that had been placed over a nine-year period. The defect caused openings in the roof surface which ultimately allowed water seepage, resulting in rotten wood in the roof. Rotted plywood sheathing under the rubber roof of the mobile home indicated long-term, repeated exposure to rainwater and melting snow. The combination of problems caused the water leakage, the consequence of which was the water and mold damage discovered by the plaintiff in May of 2002.
As part of the investigation, Levesque spoke with David Majors, who owns Majors RV Service Center. Since 1992, Majors had been repairing and patching the mobile home's roof and had done the majority of the repairs when plaintiff's father was using the mobile home.
From the numerous repairs reported by Majors, the roof leaking was an ongoing condition from the time plaintiff's father purchased the mobile home in 1992. Specific fixes included the Dufours Company repairing the root at a cost of $512, in 1993 and Majors repairing and patching the roof in 1997.
On June 22, 2002, Majors examined the roof and opined that the water leakage and resulting water damage arose as a result of a manufactured defect in the rubber roof of the mobile home, which was a
well-known problem with that type of roof. Majors told the plaintiff that the pins inside the roof membrane had pierced the membrane in 1993, allowing water to seep in over time.2
"Summary judgment is appropriate where there is no genuine issue of material fact and, where viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law." O'Sullivan v. Shaw, 431 Mass. 201, 203 (2000); Mass.R.Civ.P. 56(c). The moving party has the burden of affirmatively demonstrating that the pleadings present no genuine issue of fact on every relevant issue and its entitlement to a judgment in its favor. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact. Id. The opposing party may not rest on the allegations of the pleadings. Key Capital Corp. v. M&S Liquidating Corp., 27 Mass.App.Ct. 721, 728 (1989). Mere contradictions of factual allegations, without evidentiary support, are insufficient to raise a question of material fact sufficient to defeat a summary judgment motion. Madsen v. Erwin, 395 Mass. 715, 721 (1985).
Plaintiff contends that because Foremost Insurance paid some of the claim, it must treat the whole claim as a covered loss; and, therefore, is in breach of the insurance contract by denying payment for the water damage. Defendant Foremost Insurance contends that plaintiff's claim is specifically excluded by the insurance contract as it does not cover property damage due to a manufactured defect.
"The interpretation of an insurance contract is a question of law for the trial judge and the reviewing court." Norfolk & Dedham Mut. Fire Ins. Co. v. Quane, 442 Mass. 704, 707 (2004). "Likewise, the application of policy language to known facts presents a question of law for the court." Kelleher v. Am. Mut. Ins. Co. of Boston, 32 Mass.App.Ct. 501, 503 (1992), citing Sherman v. Employer's Liab. Assurance Co., 343 Mass. 354, 356 (1961).
"The terms of an insurance policy will be interpreted according to the `fair meaning of the language used, as applied to the subject matter.'" Norfolk & Dedham Mut. Fire Ins. Co., 442 Mass. at 707. Interpretation is governed by familiar rules of construction. When construing language in an insurance policy, a court considers what an objectively reasonable insured, reading the relevant policy language, would expect to be covered. W. Alliance Ins. Co. v. Gill, 426 Mass. 115, 117 (1997), quoting Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689 (1990). "Unambiguous words in an insurance policy exclusion must be interpreted in their usual and ordinary sense." County of Barnstable v. Am. Fin. Corp., 51 Mass.App.Ct. 213, 215 (2001), citing Bagley v. Monticello Ins. Co., 430 Mass. 454, 457 (1999). "While reading and understanding an insurance policy's provisions as to coverages, exclusions, and exceptions is often a formidable task, difficulty in comprehension does not equate with ambiguity." Massachusetts Prop. Ins. Underwriting Ass'n v. Wynn, 60 Mass.App.Ct. 824, 827 (2004). Nor is ambiguity created "simply because a controversy...
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