Entwistle v. Safety Indemnity Insurance Co.

Decision Date27 March 2015
Docket NumberMICV2013-02526-D
PartiesAnne Entwistle [1] et al. [2] v. Safety Indemnity Insurance Company et al. [3] No. 129962
CourtMassachusetts Superior Court

Filed March 31, 2015


Peter B. Krupp, Justice of the Superior Court.

Plaintiffs Anne Entwistle (" Anne") and Erik Entwistle (" Erik") (together, " the Entwistles") lost personal property in a fire at a family-owned home in Vermont. Because the insurance on that home was insufficient to cover the loss, the Entwistles filed a claim under two other homeowner policies, one with defendant Safety Indemnity Insurance Company (" Safety"), which insured their principal residence in Cambridge, and the other with defendant York Insurance Company of Maine (" York"), which insured their newly purchased vacation home in New Hampshire. The Entwistles filed this action challenging both defendants' application of the 10% sub-limit provisions in their respective policies substantially limiting the Entwistles' recovery. The case is before me on cross motions for summary judgment. For the following reasons, the Entwistles' motion is DENIED , York's motion is ALLOWED , and Safety's motion is ALLOWED in part and DENIED in part .[4]


I briefly summarize the facts in the light most favorable to the non-moving party, see Foster v. Group Health Inc. , 444 Mass. 668, 672, 830 N.E.2d 1061 (2005), and reserve other facts for the discussion, including the relevant provisions of the insurance policies in question.

The Entwistles are married and live at 61 Larchwood Drive Cambridge, Massachusetts (" the Cambridge house"). The Entwistles are registered to vote in Cambridge, their children attend school in Cambridge, they pay taxes in Massachusetts, and Erik works in Cambridge. Safety issued a homeowners policy on the Cambridge house for the period of January 16, 2011 through January 16, 2012 (" the Safety policy").[5]

Anne's parents owned a house in Peru, Vermont (" the Vermont house"), which they conveyed to the Lewis D. de Schweinitz Revocable Trust (" the LDS Trust") in 1997 around the time they moved to Florida. Anne's sister was the trustee of the LDS Trust. Anne's father died in 1998, and Anne's mother remained in Florida. Starting in early 2004, the LDS Trust listed the Vermont house for vacation rental.[6] The Entwistles used the Vermont house as a vacation home during school vacations and holidays when it was not rented.

Anne's mother created the Elizabeth H. de Schweinitz Revocable Trust (" the EHS Trust") in 1996, naming herself as trustee. In 2009, Anne's mother conveyed personal property to the EHS Trust, resigned as trustee, and appointed Anne as trustee in her place. The personal property transferred to the EHS Trust was all of Anne's mother's personal property, including silver, antiques and artwork located in Naples, Florida, in the Vermont house and in Cambridge, Massachusetts. As trustee of the EHS Trust, Anne was required to distribute the personal property after her mother's death. Anne's mother died in November 2010. Anne and her two siblings were the beneficiaries of the LDS Trust.

After cleaning and fixing up the Vermont house, the LDS Trust listed the Vermont house for sale on March 24, 2011. In late March or early April 2011, the Entwistles staged the Vermont house for prospective buyers. They packed up the belongings they had at the Vermont house and stored them in the house's closets and storage areas. The Vermont house remained " essentially vacant" after the Entwistles completed the staging.

On April 26, 2011, the Entwistles purchased a house in Fitzwilliam, New Hampshire (" the New Hampshire house"), primarily because the Vermont house was for sale. York issued a homeowners policy to the Entwistles for the New Hampshire house for the period of April 26, 2011 through April 26, 2012 (" the York policy"). The Entwistles intended to move their belongings from the Vermont house to the New Hampshire house after the work on the New Hampshire house was completed.[7]

The Entwistles and other family members stayed at the Vermont house for a weekend in May 2011. Anne brought with her the EHS Trust property she kept in the Cambridge house and arranged for family members to view it in anticipation of distributing the property. Anne then left the items at the Vermont house, in a locked storage shed over the garage.

On June 21, 2011, a fire at the Vermont house severely damaged the house and its contents. The insurer of the Vermont house paid the full policy limit, which was far less than the loss.

The Entwistles sought coverage for the loss of personal property under their Safety and York policies. York responded that the 10% sub-limit provision in the York policy applied to limit the Entwistles' recovery and paid the Entwistles $33, 880.00, which was 10% of the personal property coverage under that policy. Safety also responded that the 10% sub-limit provision in its policy applied to limit the Entwistles' recovery. Safety offered to pay the Entwistles pursuant to the 10% sub-limit, provided the Entwistles signed a release of their claim for any coverage beyond the 10% sub-limit. The Entwistles did not sign the release.

The Entwistles usefully divide the property they claim to have lost in the fire into the following four analytically distinct categories.[8]

1. EHS Trust Property Usually Located in Cambridge

Some of the personal property that Anne's mother conveyed to the EHS Trust in 2009 was usually located at the Cambridge house. The Entwistles brought this property with them from the Cambridge house when they stayed at the Vermont house in May 2011. Anne left this personal property in the locked storage area over the Vermont house's garage. At oral argument, Safety conceded that the 10% sub-limit in its policy does not apply to the personal property in this category. The Entwistles agree York's 10% sub-limit does apply to this property.

2. EHS Trust Property Used or Stored in Vermont

Some of the personal property that Anne's mother conveyed to the EHS Trust in 2009 was usually located at the Vermont house. The family used some of this property to furnish the Vermont house. The family stored the rest of the property in the locked storage area over the Vermont house's garage.

3. The Entwistles' Jointly Owned Personal Property

The Entwistles kept at the Vermont house personal property that they bought or received as gifts. Before the Vermont house was listed for sale, renters and family members used this personal property during visits. Some was also located in the locked storage area over the Vermont house's garage. At the time of the fire, all of this personal property was stored in closets in the Vermont house, in the Vermont house's garage, and in the locked storage area over the garage.

4. Erik' s Inherited Property

Erik kept at the Vermont house personal property that he inherited from his father. A few of these items furnished the Vermont house. Erik stored the rest of this personal property in storage areas throughout the Vermont house.


Summary judgment is granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Corr. , 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat'l Bank v. Dawes , 369 Mass. 550, 553, 340 N.E.2d 877 (1976). The moving party bears the burden of demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. Flesner v. Technical Commc'ns Corp. , 410 Mass. 805, 808-09, 575 N.E.2d 1107 (1991); Pederson v. Time, Inc. , 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989); see Kourouvacilis v. General Motors Corp. , 410 Mass. 706, 716, 575 N.E.2d 734 (1991).

The court considers the evidence presented in the light most favorable to the non-moving party. Mass.R.Civ.P. 56(c); Augat, Inc. v. Liberty Mut. Ins. Co. , 410 Mass. 117, 120, 571 N.E.2d 357 (1991); Flynn v. Boston , 59 Mass.App.Ct. 490, 491, 796 N.E.2d 881 (2003). The non-moving party, however, cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment. LaLonde v. Eissner , 405 Mass. 207, 209, 539 N.E.2d 538 (1989). " [B]are assertions and conclusions . . . are not enough to withstand a well-pleaded motion for summary judgment." Polaroid Corp. v. Rollins Envtl. Servs., Inc. , 416 Mass. 684, 696, 624 N.E.2d 959 (1993).

I. The Relevant Policy Language

The relevant language in the Safety and York policies is virtually identical.

A. The Safety Policy

The Safety policy insured the Cambridge house at the time of the house fire in Vermont. The declarations page identifies the Cambridge house as " the residence premises covered by this policy." The Safety policy defines " residence premises" as " a. The one-family dwelling, other structures, and grounds; or b. That part of any other building; where you reside and which is shown as the 'residence premises' in the Declarations." Under the Safety policy, Coverage C addresses coverage for personal property. It sets a personal property liability limit of $438, 984, which is 70% of the $627, 120 coverage limit for the dwelling. The Safety policy states that Safety " insure[s] for direct physical loss [to personal property] caused by . . . [f]ire." (Bold omitted.) The Safety policy " cover[s] personal property owned or used by an 'insured' while it is anywhere in the world." It states, however: " Our [Safety's] limit of liability for personal property usually located at an 'insured's' residence other than the 'residence premises, ' is 10% of the limit of liability for Coverage C, or $1, 000,...

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