Massachusetts Cas. Ins. Co. v. Landy

Citation294 N.E.2d 538,1 Mass.App.Ct. 35
PartiesMASSACHUSETTS CASUALTY INSURANCE COMPANY v. Chester LANDY.
Decision Date15 January 1973
CourtAppeals Court of Massachusetts

James R. Lyons, Boston, for plaintiff.

Roger I. Abrams, Boston, for defendant.

Before HALE, C.J., and KEVILLE and GRANT, JJ.

HALE, Chief Justice.

The plaintiff, a company engaged in the business of writing health and accident insurance, brought this bill in equity on October 14, 1971, to have two disability income policies issued by it to the defendant adjudged void and of no effect and, further, to have the court order the defendant to surrender and deliver up the policies for cancellation. The defendant filed an answer and counterclaim, in which he requested among other things that the insurance policies be declared valid and in force and that the plaintiff be ordered to pay the defendant all sums found due thereunder. After the defendant filed two notices to admit facts, both answered by the plaintiff, the defendant filed a 'Motion for Partial Judgment on Undisputed Facts' moving that the first of the policies be declared valid and in force and that the plaintiff be ordered to pay all sums found due thereunder. This was accompanied by an affidavit alleging that no genuine issue of material fact existed with respect to that policy. The plaintiff filed a counter affidavit. The defendant's motion was allowed by the Superior Court and, upon a further motion, a so-called 'final decree' was entered declaring this particular policy to be valid and in force and ordering the plaintiff to pay all sums found due under it.

The plaintiff seasonably appealed from this decree.

The decree leaves undecided the question of the validity of the second policy of insurance as well as many of the questions raised by the defendant's counterclaim including the amount, if any, due the defendant under the first policy. Clearly these questions are interrelated. A decree which leaves such matters open for decision cannot be considered a final decree. Vincent v. Plecker, 319 Mass. 560, 564, 67 N.E.2d 145; New England Factors, Inc. v. Genstil, 322 Mass. 36, 45, 76 N.E.2d 151; Enterprises, Inc. v. Cardinale, 331 Mass. 244, 246, 118 N.E.2d 740. A final decree is a definitive determination of the rights and liabilities of the parties with respect to the controversies presented by the pleadings. It exhausts the power of the court over the merits of the controversy. Lowell Bar Assn. v. Loeb, 315 Mass. 176, 188, 52 N.E.2d 27. We consider this decree to be interlocutory rather than final. An appeal from an interlocutory decree lies dormant until brought to this court with an appeal from the final decree and cannot be brought here by itself. Lowell Bar Association v. Loeb, 315 Mass. 176, 187--188, 52 N.E.2d 27; Vincent v. Plecker, 319 Mass. 560, 562--563, 67 N.E.2d 145; Lynde v. Vose, 326 Mass. 621, 622, 96 N.E.2d 172. Prior to final decree, this court may review an interlocutory decree only when it is reported by the trial judge under G.L. c. 214, § 30. Rines v. Justices of the Superior Court, 330 Mass. 368, 373, 113 N.E.2d 817; Beane v. Bergstrom, 330 Mass. 710, 116 N.E.2d 251. This appeal must, therefore, be dismissed as prematurely entered.

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2 cases
  • Mancuso v. Mancuso
    • United States
    • Appeals Court of Massachusetts
    • August 14, 1980
    ...847 (1979). It did not dispose of all the claims raised by the pleadings (see Mass.R.Dom.Rel.P. 54(b); Massachusetts Cas. Ins. Co. v. Landy, 1 Mass.App.Ct. 35, 37, 294 N.E.2d 538 (1973) ); the purpose of the order was merely to provide temporary support for the wife, and by its express term......
  • Kukuruza v. General Elec. Co., 74--1247
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 14, 1975
    ...the power was turned on), once the crane was turned on a duty arose on the defendant to warn all of the employees of the danger.' 294 N.E.2d at 538. The plaintiff was attempting to ignore the red tag safety procedure and use the passage of two weeks time to turn the previously obvious dange......

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