Guindon Ins. Agency, Inc. v. Commercial Union Ins. Co.

• Decision Date: 31 January 1983
• Citation: 445 N.E.2d 167,15 Mass.App.Ct. 931
• Parties: GUINDON INSURANCE AGENCY, INC. v. COMMERCIAL UNION INSURANCE COMPANY (and a companion case).
• Court: Appeals Court of Massachusetts

Page 167

445 N.E.2d 167

15 Mass.App.Ct. 931

GUINDON INSURANCE AGENCY, INC. v. COMMERCIAL UNION INSURANCE COMPANY (and a companion case).

Appeals Court of Massachusetts Norfolk.

Argued Nov. 12, 1982.

Jan. 31, 1983.

Richard F. Benway, for plaintiff.

Robert B. Allensworth, Boston, for defendant.

Before HALE, C.J., and CUTTER and KASS, JJ.

RESCRIPT.

Two actions arising out of the same facts, but launched separately and requesting different relief, resulted in an order and a judgment adverse to Guindon Insurance Agency, Inc. (Guindon), and two appeals, which were consolidated for argument.

Number A.C. 81-1259 appears to be an appeal brought under the second paragraph of G.L. c. 231, § 118. As to that case: (1) The judge could conclude from the record that the plaintiff Guindon had consented to the filing of an answer late, and acted within his discretion in allowing the defendant Commercial Union Insurance Company (Commercial) to file its answer. Mass.R.Civ.P. 6(b)(3), 365 Mass. 747-748 (1974). (2) There was no occasion for the motion judge to recuse himself for the reason, if no other, that the plaintiff never asked him so to do. Neither has Guindon advanced any facts which, by any stretch of the imagination, would have required the judge so to do sua sponte under Supreme Judicial Court Rule 3:09 Canon 3(C)(1). (3) Guindon's failure to remit insurance premiums paid to it on policies issued by Commercial provided ample factual and legal basis for the defendant to cancel the plaintiff's agency. Enjoining plaintiff from commingling, converting, and withholding premiums collected on account of Commercial's policies was entirely proper. See G.L. c. 175, § 176; Commonwealth v. Baker, 368 Mass. 58, 83, 330 N.E.2d 794 (1975). The injunctive relief granted was consistent with standards articulated in Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, ---, Mass.Adv.Sh. (1980) 1189, 1197, 405 N.E.2d 106, and Westinghouse Bdcst. Co. v. New England Patriots Football Club, Inc., 10 Mass.App. 70, ---, Mass.App.Ct.Adv.Sh. (1980) 1165, 1167, 406 N.E.2d 399.

As to the companion case, No. A.C. 81-1260, the factual context is indistinguishable from that of the first case discussed, except that the complaint in the latter prayed for certain additional relief. At a consolidated hearing involving both actions, the judge correctly dismissed the second action under Mass.R.Civ.P. 12(b)(9), 365 Mass. at 755. McCauley v. Sons Pharmacy, Inc., 3 Mass.App. 774, 331 N.E.2d 924 (1975). Contrast Twomey v. Board of Appeals of Medford, 7 Mass.App. 770, 776 n. 11, 390 N.E.2d 272 (19...