Mullen v. St. Paul Fire and Marine Ins. Co.

• Decision Date: 07 May 1992
• Docket Number: No. 91-2151,91-2151
• Parties: James X. MULLEN and Mullen Advertising, Inc., Plaintiffs, Appellees, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 446

972 F.2d 446

23 Fed.R.Serv.3d 611

James X. MULLEN and Mullen Advertising, Inc., Plaintiffs, Appellees, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant, Appellant.

No. 91-2151.

United States Court of Appeals, First Circuit.

Heard May 7, 1992.

Decided Aug. 17, 1992.

Joseph D. Burke with whom Nelda D. Cronin, Matthew Mahoney, and Burke, Wieners, Moran, Hurley & Merrick, Boston, Mass., were on brief for defendant, appellant.

Lawrence M. Gordon with whom Robert D. Gordon, Boston, Mass., was on brief for plaintiffs, appellees.

Before CYR, Circuit Judge, CAMPBELL, Senior Circuit Judge, and FUSTE, ^* District Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

This appeal arises from an action brought by plaintiffs-appellees, James X Mullen and Mullen Advertising, Inc. ("Mullen") against defendant-appellant, St. Paul Fire and Marine Insurance Co. ("St. Paul") seeking to collect interest on an insurance claim paid by St. Paul to cover damages incurred during a fire on Mullen's premises. The United States District Court for the District of Massachusetts granted Mullen's motion for summary judgment after St. Paul had failed to oppose the motion. The court denied St. Paul's subsequent motions to excuse its default and vacate judgment. St. Paul appeals on the merits from the district court's grant of summary judgment. We reverse.

I. BACKGROUND

Mullen, an advertising firm located in Wenham, Massachusetts, is St. Paul's insured under a standard form fire insurance policy conforming to M.G.L. ch. 175, § 99. On November 2, 1987, a fire occurred on Mullen's premises destroying real and personal property and causing Mullen to lose rental income. Pursuant to the terms of its policy with St. Paul, Mullen submitted a "Partial Interim Sworn Statement in Proof of Loss" on December 3, 1987 in the amount of $1,500,000. This document did not state the actual cash value of the property or the whole loss and damage to the property as a result of the fire. As a consequence, St. Paul rejected the proof of loss in a letter dated January 4, 1988. Nevertheless, St. Paul agreed to reimburse Mullen--without acknowledging liability for the loss--for those expenditures directly incurred to date. To this end, St. Paul issued five checks totaling $1,017,571.56 to Mullen between February 11, 1988 and August 22, 1988. On December 6, 1988, Mullen and St. Paul reached a final agreement that the exact amount of the insured loss totaled $6,592,506. On December 22, 1988, Mullen filed a "Sworn Statement in Proof of Loss" for $3,509,051.44 representing the total agreed claim of loss "net of depreciation, co-insurance penalty, deductible and $1,017,571.56 previously paid." Mullen indicated on the "Sworn Statement in Proof of Loss" that this amount did not include interest. ¹ On the same day, December 22, 1988, St. Paul issued a check to Mullen for $3,509,051.44.

On February 1, 1989, pursuant to M.G.L. ch. 175 §§ 99-102B, ² Mullen sent St. Paul a formal demand letter seeking interest on the $3,509,051.44 that St. Paul paid for the period beginning 30 days after Mullen's December 3, 1987 "Partial Interim Sworn Statement in Proof of Loss" and ending on December 22, 1988--the date St. Paul made payment. Because St. Paul continued to maintain that it owed no interest to Mullen on the claim amount, Mullen brought this action against St. Paul in the district court on May 22, 1989. Mullen claimed breach of contract and violations of M.G.L. ch. 93A ³ and sought interest pursuant to M.G.L. ch. 175 § 99. On November 16, 1990, Mullen filed a motion for summary judgment on its claims. When St. Paul failed to oppose this motion, the district court on December 20, 1990 issued an order allowing Mullen's motion and entering summary judgment for Mullen. ⁴

Apparently unaware that summary judgment had already been entered in Mullen's favor, St. Paul, on January 3, 1991, filed a motion to extend the time within which to file its opposition. On February 12, 1991, St. Paul filed a cross-motion for summary judgment opposing Mullen's motion and requesting a hearing. On the same day, St. Paul also filed a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(1). ⁵ On May 20, 1991, the district court denied the latter motion on the ground that St. Paul failed to demonstrate a good reason for its default. On May 30, 1991, St. Paul filed a motion for reconsideration or in the alternative to vacate the court's May 20, 1991 order denying its motion for relief from judgment and asked that it be allowed to file an opposition to Mullen's motion for summary judgment for reasons of fundamental fairness. On July 8, 1991, the district court issued an order again denying St. Paul's motion.

On August 20, 1991, St. Paul filed a motion for reconsideration and to vacate the court's original December 20, 1990 order entering summary judgment in favor of Mullen. In its motion, St. Paul argued that since the grant of summary judgment, but prior to entry of final judgment, the Massachusetts Supreme Judicial Court decided Ben Elfman & Sons v. Home Indemnity Co., 411 Mass. 13, 576 N.E.2d 670 (1991), which overturned Trempe v. Aetna Casualty & Surety Co., 20 Mass.App. 448, 480 N.E.2d 670 (1985)--the case upon which Mullen's claim was based. Mullen opposed St. Paul's motion solely on the basis that St. Paul had no standing to oppose its summary judgment motion after it had originally failed to file an opposition within the time required by Local Rule 7.1(A)(2), and after the court had denied St. Paul's request for relief from its default. On September 10, 1991, the district court denied St. Paul's motion for reconsideration or in the alternative to vacate its December 20, 1990 order.

On September 23, 1991, Mullen moved for approval of a form of judgment. The district court granted Mullen's motion on October 8, 1991--despite St. Paul's opposition--and entered final judgment for Mullen in the amount of $1,173,071.74, representing interest owed, double damages, attorney's fees and costs. St. Paul filed this appeal on October 18, 1991.

II. DISCUSSION

On appeal, St. Paul does not challenge the district court's entry of default against it. Rather, St. Paul's primary contention on appeal is that, as a matter of law, the district court erred in awarding interest and double damages to Mullen on its insurance claim. Accordingly, St. Paul asks this court to reverse the district court and enter summary judgment in its favor. Because Mullen contends that St. Paul's appeal is untimely and otherwise defective, we address Mullen's procedural challenges to the appeal before reaching the merits.

A. Procedural Challenges

Mullen contends first that this court lacks jurisdiction to hear St. Paul's appeal because St. Paul did not file a timely notice of appeal. According to Mullen, the district court's December 20, 1990 order was a final judgment on the merits of its summary judgment motion. This order was entered on the civil docket on August 1, 1991. Because St. Paul did not file its notice of appeal from the judgment within 30 days of its entry, Mullen contends that this court lacks jurisdiction to hear St. Paul's appeal. We disagree.

Pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, a notice of appeal in a civil case must be filed with the clerk of the district court "within 30 days after the date of entry of the judgment or order appealed from." Fed.R.App.P. 4(a)(1). "A judgment or order is entered within the meaning of this Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure." Fed.R.App.P. 4(a)(6). ⁶ This court has recognized the general rule that "a judgment becomes final and appealable when the court enters a decision resolving the contested matter, leaving nothing to be done except execution of the judgment." United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir.1988) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). Thus, an order that determines liability and the amount of a damages award, is not a final judgment where the court has not yet determined how the burden of payment would be allocated between two parties and whether their obligation would be joint or several. Id. Similarly, a partial grant of summary judgment which does not resolve certain issues and, as to other issues, "adjudicates only liability and not damages--is not a final order, it cannot be said to 'resolv[e] the contested matter, leaving nothing to be done except execution of the judgment.' " Domegan v. Fair, 859 F.2d 1059, 1062 (1st Cir.1988) (quoting Metropolitan Dist. Comm'n, 847 F.2d at 14).

The district court's December 20, 1990 order simply read: "No opposition having been filed to plaintiffs' motion for summary judgment, the motion is allowed and summary judgment entered for plaintiffs." Such an order did not in this case "end[ ] the litigation ... leav[ing] nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). In its complaint, Mullen did not seek a "sum certain." Rather, with respect to Count I (breach of contract by defendant), Mullen asked the court to

enter an order directing the Defendant to pay forthwith to the Plaintiffs interest calculated at one percent (1%) over the prevailing prime rate of interest on the principal sum of $3,509,050.44 commencing not later than thirty (30) days from the date insured loss and damage was sustained [or,] ... [i]n the alternative, ... commencing no later than thirty (30) days from the date the Plaintiffs filed a sworn statement in proof of loss with defendant (January 3, 1988), together with costs and attorney's fees.

With respect to Count II (defendant's alleged violations of M.G.L. ch. 93A), Mullen asked the court to

enter an order directing the...