Frohberg v. Merrimack Mut. Fire Ins. Co.

• Decision Date: 29 July 1993
• Docket Number: No. 92-P-792,92-P-792
• Citation: 34 Mass.App.Ct. 462,612 N.E.2d 273
• Parties: Helen M. FROHBERG v. MERRIMACK MUTUAL FIRE INSURANCE COMPANY.
• Court: Appeals Court of Massachusetts

Page 273

612 N.E.2d 273

34 Mass.App.Ct. 462

Helen M. FROHBERG v. MERRIMACK MUTUAL FIRE INSURANCE COMPANY.

No. 92-P-792.

Appeals Court of Massachusetts Norfolk.

Argued April 7, 1993.

Decided May 7, 1993.

Review Denied July 29, 1993.

James A. Goodhue, Wellesley, for plaintiff.

Regina E. Roman, Boston, for defendant.

Before BROWN, KASS and LAURENCE, JJ.

LAURENCE, Justice.

On June 2, 1988, the plaintiff, Helen Frohberg, sold her residence in Dover to Joan and Barry Roth for $600,000. Up to the time of the sale, Frohberg maintained a standard homeowner's insurance policy with respect to the premises through the defendant, Merrimack Mutual Fire Insurance Company, covering the period April 6, 1988, to April 6, 1989. Frohberg cancelled the policy as of the date of the closing. In July, 1990, the Roths, having discovered in January, 1990, that the house contained urea formaldehyde foam insulation (UFFI), sued Frohberg and others connected with the 1988 sale, alleging fraudulent and negligent misrepresentation, breach of contract, negligence, and violations of G.L. c. 93A and c. 255, § 12I. ¹ The Roths sought damages for, among other things, respiratory injury to their daughter attributed to the presence of the UFFI and the removal of the UFFI from their home, estimated to cost $127,000.

In November, 1990, Merrimack received notice of Frohberg's request for a defense and, if necessary, indemnification from Merrimack in connection with the Roths' litigation. In December, 1990, Merrimack informed Frohberg that it would not defend or indemnify her because (it asserted) the former policy did not provide coverage for the events at issue in the Roths' suit. Frohberg responded by filing the instant action in December, 1990, seeking a declaratory judgment that Merrimack was obligated to assume her defense and indemnify her for any judgment entered against her in the Roths' lawsuit, up to the former policy's limits. Frohberg's complaint also included claims for violations of G.L. c. 93A and c. 176D and for intentional infliction of emotional distress.

In November, 1991, Frohberg moved for summary judgment on her declaratory judgment count. Merrimack cross-moved for summary judgment on all three counts of her complaint. In March, 1992, a Superior Court judge denied Frohberg's motion and allowed Merrimack's. The judge read the policy coverage as inapplicable to the allegations in the Roths' complaint. See Aetna Cas. & Sur. Co. v. Cotter, 26 Mass.App.Ct. 56, 58, 522 N.E.2d 1013 (1988). The policy protected an insured against claims or suits for damages because of "bodily injury or property damage" caused by "an occurrence," which was defined as "an accident ... which results, during the policy period, in (a) bodily injury; or (b) property damage" (emphasis added). The liability coverage section of the policy also contained a condition that limited the policy's applicability to "bodily injury or property damage ... which occurs during the policy period " (emphasis added). Given the fact that none of the Roths' damages were alleged to have occurred prior to Frohberg's termination of her homeowner's policy, we affirm the judge's decision in light of these unambiguous policy provisions.

It is established that an insurer has only an "obligation to indemnify the insured against judgments obtained against it within the policy coverage" and no duty to defend if the underlying complaint does not demonstrate the "possibility that the liability claim falls within the insurance coverage." Sterilite Corp. v. Continental Cas. Co., 17 Mass.App.Ct. 316, 318 n. 4, 319, 458 N.E.2d 338 (1983). Merrimack has principally argued that under this policy it had no duty to defend or indemnify Frohberg because no asserted injuries for which Frohberg might be liable in the Roths' suit were sustained during the policy period. That contention is supported by the record as well as by the governing law. See Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 152, 461 N.E.2d 209 (1984)...