Nelson v. Cambridge Mut. Fire Ins. Co., 90-P-370

• Court: Appeals Court of Massachusetts
• Writing for the Court: SMITH
• Citation: 30 Mass.App.Ct. 671,572 N.E.2d 594
• Parties: Avi NELSON v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY.
• Docket Number: No. 90-P-370,90-P-370
• Decision Date: 30 July 1991

Page 594

572 N.E.2d 594 30 Mass.App.Ct. 671 Avi NELSON
v.
CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY. No. 90-P-370. Appeals Court of Massachusetts,
Suffolk. Argued April 10, 1991.
Decided June 13, 1991.
Further AppellateReview Denied
July 30, 1991.

Page 595

Anna K.C. Bennett, Boston, for defendant.

Thomas C. Cameron, Boston, for plaintiff.

Before BROWN, SMITH and LAURENCE, JJ.

SMITH, Justice.

Cambridge Mutual Fire Insurance Company (Cambridge Mutual) appeals from a grant of summary judgment entered in the Superior Court in favor of Avi Nelson. The facts are not in dispute. On May 13, 1986, Nelson purchased a house in North Reading. Prior to that purchase, Nelson lived in a house he rented in Burlington. On June 25, 1986, Nelson packed his belongings in his rented premises in anticipation of moving the next day to his new home in North Reading. That night, a fire broke out in his rented premises in Burlington and destroyed most of his personal property.

At the time he bought the North Reading property, Nelson purchased a homeowner's insurance policy from Cambridge Mutual. The policy covered the new house up to a [30 Mass.App.Ct. 672] limit of $148,000, and also covered Nelson's personal property up to a limit of $74,000. There was, however, an exclusionary clause that limited the liability of Cambridge Mutual in regard to damage to certain personal property. That language reads as follows:

"COVERAGE C--PERSONAL PROPERTY

"We cover personal property owned or used by an insured while it is anywhere in the world....

"Our 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 $1,000.00, whichever is greater. Personal property in a newly acquired principal residence is not subject to this limitation for the 30 days from the time you begin to move the property there" (emphasis added).

After the fire, Nelson calculated the damage to his personal property to be $45,000 and made a claim in that amount to Cambridge Mutual. The company admitted that the loss was covered but informed Nelson that the amount it would pay was limited by the language in the exclusionary clause to ten percent of the total amount of "liability for Coverage C." The exclusionary clause applied, according to Cambridge Mutual, because Nelson's personal property, damaged by the fire, was at his rented premises in Burlington and not at his new house in North Reading. It paid Nelson $7,400 (ten percent of $74,000).

Nelson brought this action seeking a declaration that the relevant language in the policy was ambiguous, that the ambiguity must be resolved in his favor, and that Nelson was entitled to the full amount of his loss.

After Cambridge Mutual filed an answer, it brought a motion for summary judgment, claiming that the language in the policy was unambiguous and that it had paid Nelson all he was entitled to under the policy. Nelson cross filed for summary judgment. After a hearing, the judge allowed Nelson'sfor [30 Mass.App.Ct. 673] summary judgment, but as to liability only, and denied Cambridge Mutual's motion. The judge subsequently awarded Nelson $43,492 after a hearing on assessment of damages.

On appeal, Cambridge Mutual contends that the judge erred in allowing Nelson's motion for summary judgment and denying

Page 596

its motion. It also claims that even if the judge were correct in granting summary judgment in favor of Nelson, he erred in his assessment of damages. Finally, Cambridge Mutual argues that the judge committed error when he denied its motion to strike certain portions of Nelson's affidavit which supported his motion for summary judgment.

The interpretation of an insurance policy is a "question of law for the trial judge, and then for the reviewing court." Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234 (1982). "The first...