Dutchman Dental LLC v. The Providence Mutual Fire Insurance Co., 031120 RISUP, KC-2016-1281

Docket Nº:KC-2016-1281
Opinion Judge:LANPHEAR, J.
Attorney:For Plaintiff: Kevin J. Holley, Esq. For Defendant: Robert P. Corrigan, Esq.
Case Date:March 11, 2020
Court:Superior Court of Rhode Island




No. KC-2016-1281

Superior Court of Rhode Island, Kent

March 11, 2020

For Plaintiff: Kevin J. Holley, Esq.

For Defendant: Robert P. Corrigan, Esq.



Before this Court is Plaintiff Dutchman Dental LLC's (Plaintiff) Motion for Partial Summary Judgment. Plaintiff seeks summary judgment as to liability on all counts of the Complaint. The motion was argued before this Court on January 13, 2020. For the reasons set forth herein, this Court grants summary judgment in part and denies it in part.

I. Facts and Travel

Plaintiff entered into an insurance contract with Defendant The Providence Mutual Fire Insurance Company (Defendant), identified as Insurance Policy No. BOP0092782 00 (the Policy), for the period of January 16, 2016 through January 16, 2017. Compl. ¶ 3; Answer ¶ 1. DMV Holding Company LLC (DMV) is also a "named insured" on the Policy.1 Am. Compl. ¶ 35; Am. Answer ¶ 32. The Policy states, "[w]e will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations [clause] by or resulting from any Covered Cause of Loss." Answer ¶ 2.

On October 28, 2016, Mike's Oil poured hundreds of gallons of home heating oil through a disconnected fill pipe into the basement of 1359 Main Road, Tiverton, Rhode Island, where Plaintiff operated its dental practice. Compl. ¶ 5; Answer ¶ 3; Am. Compl., Ex. 1; Pl.'s Mot. Summ. J., Ex. B. The oil was meant to be delivered to the house next door, 1353 Main Road, also owned by JP Van Regenmorter. Pl.'s Mot. Summ. J., Exs. B, C. The fill pipe at the dentist office had been disconnected in 2008, eight years before the accident. Am. Compl., Ex. 1. The operator did not realize his mistake until after he had already delivered 366 gallons of oil into the pipe. Pl.'s Mot. Summ. J., Ex. B. This oil was then expelled from the basement by a sump pump into the soil below and beside the building. Def.'s Mem. Opp'n Mot. Summ. J., Ex. C. Both the Tiverton Fire Department and the Rhode Island Department of Environmental Management (RIDEM) responded to the scene. Id. RIDEM then coordinated clean-up and remediation of the site. Id. at Ex. D.

Plaintiff then filed claims with Defendant for loss of business income and continuing business operating expenses such as payroll and repairs. On January 27, 2017, Defendant denied coverage to Plaintiff under the liability section of the policy. Am. Compl. ¶ 8; Am. Answer ¶ 5; Am. Compl., Ex. 1. Defendant stated that "[t]he discharged oil in the basement is a 'pollutant' under the policy and thus any claim for damages 'arising out of' the discharge of the oil into the basement is excluded." 2 Am. Compl., Ex 1.

Plaintiff then commenced both this civil action and an action against Mike's Oil.3 Mike's Oil had previously placed its liability insurer, EMC Insurance Company (EMC), on notice. Pl.'s Mot. Summ. J., Ex. C. That umbrella policy has coverage limits of $1, 000, 000. Id. EMC, on behalf of Mike's Oil, hired remediation services from Andy Barber Environmental Remediation to implement the remediation and excavation of the oil at the property. Id.

Plaintiff has now moved for partial summary judgment as to the breach of Defendant's obligations under the Policy by failing to provide Plaintiff with first-party coverage for the damages flowing from the negligent oil delivery. Plaintiff seeks the Court to find liability on all counts of the Complaint. Defendant has objected to the Court finding liability on all counts at this stage in the litigation.

II. Standard of Review

When deciding a motion for summary judgment, the trial justice must keep in mind that it '"is a drastic remedy and should be cautiously applied."' Steinberg v. State, 427 A.2d 338, 339- 40 (R.I. 1981) (quoting Ardente v. Horan, 117 R.I. 254, 256-57, 366 A.2d 162, 164 (1976)). This Court will grant summary judgment '"only if, after reviewing the admissible evidence in the light most favorable to the nonmoving party, [the Court] conclude[s] that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law."' Rhode Island American Federation of Teachers/Retired Local 8037 v. Johnston School Committee, 212 A.3d 156, 158-59 (R.I. 2019) (quoting Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016)). However, only when the facts reliably and indisputably point to a single permissible inference can this process be treated as a matter of law. Steinberg, 427 A.2d at 340. '"Furthermore, the nonmoving party bears the burden of proving by competent evidence the existence of a disputed issue of material...

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