Partington Builders, LLC v. Nautilus Ins. Co.

Decision Date03 February 2023
Docket Number22-cv-10040-DLC
CourtU.S. District Court — District of Massachusetts


No. 22-cv-10040-DLC

United States District Court, D. Massachusetts

February 3, 2023



This is an action between an insurer and its insured over the scope of coverage of an insurance policy. It arises out of an ongoing underlying state court action regarding the insured's development of a property in Sudbury, Massachusetts (the “underlying action”). The plaintiffs in the underlying action, Simone and Douglas Blowers (“the Blowers”), allege that the plaintiff here, Partington Builders, LLC (“Partington”), removed trees and dirt from their property without their permission. Partington asserts that any liability it may have to the Blowers is covered by its insurance policy with the defendant, Nautilus Insurance Co. (“Nautilus”). Partington seeks a declaratory judgment that the policy covers the claims in the underlying action, as well as an order requiring Nautilus to defend it in the


underlying action and pay Partington's incurred legal fees. Nautilus too seeks a declaratory judgment, that the policy does not cover the claims in the underlying action. Both parties have moved for summary judgment. (Dkt. Nos. 17, 20). For the reasons stated below, the plaintiff's motion is granted in part and denied in part; the defendant's motion is denied.

I. Background

The facts are undisputed unless otherwise noted. Partington purchased a plot of land in Sudbury to build a house on and sell for profit. (Dkt. No. 19 (Plaintiff's Statement of Material Facts), ¶ 2). The property was adjacent to a lot owned by the Blowers. (Dkt. No. 22 (Defendant's Statement of Undisputed Facts), ¶ 2). The property line between the two lots was drawn in such a way that a triangular portion of the Blowers' property juts out in front of the Partington property. (Dkt. No. 19, ¶ 3; Dkt. No. 22, ¶ 3). While developing its own property, Partington reached out to Douglas Blowers to discuss the possibility of Partington performing certain work on this triangular portion of the Blowers' property. (Dkt. No. 19, ¶ 5; Dkt. No. 22, ¶ 5). Initially, Partington sought permission to remove tree roots from the Blowers' property as part of an effort to remove trees from its own property. (Dkt. No. 22, ¶ 5). Partington also requested permission to remove some small trees and brush from that section of the Blowers' property and regrade the area.


(Dkt. No. 19-5, p. 1). Partington and Douglas Blowers exchanged further emails on the matter. (Id.). Partington contends that Douglas Blowers authorized the contemplated work, while Nautilus asserts that Blowers only asked for clarification and never consented to the tree removal and regrade. (Dkt. No. 22, ¶ 9; Dkt. No. 25 (Plaintiff's Response to Defendant's Statement of Undisputed Facts), ¶ 9).

At some point between April 5, 2021, and April 16, 2021, Partington went ahead with the proposed work on the triangular portion of the Blowers' land. (Dkt. No. 19-5, pp. 3-4). On April 16, Douglas Blowers sent a cease and desist letter to Partington demanding that Partington restore the property to its “original state.” (Id.).

On June 16, 2021, the Blowers brought a state court action against Partington in Middlesex Superior Court, pressing a claim under the Massachusetts tree cutting statute, M.G.L. c. 242, § 7, as well as claims for common-law trespass and nuisance.[1] (Dkt. No. 19-2). The complaint takes issue with Partington removing the “natural berm” on the Blowers' property, thereby eliminating the privacy they previously enjoyed. (Id. at ¶¶ 18-22). The Blowers


seek $97,000 to restore the berm, in addition to other unspecified damages. (Id. at ¶¶ 26-28).

At all relevant times, Partington “was insured by Nautilus pursuant to a commercial general liability policy.” (Dkt. No. 22, ¶ 16). On June 17, 2021, Partington notified Nautilus of the underlying action. (Dkt. No. 19, ¶ 15). On July 1, 2021, Nautilus denied coverage under the policy on three grounds: (1) the complaint did not allege property damage or bodily injury arising from an “occurrence”; (2) the complaint alleges that Partington intentionally damaged the Blowers' property; and (3) the policy excludes coverage for damages arising from the movement of soil. (Dkt. No. 19, ¶ 17).

II. Standard of Review

“Summary judgment is appropriate when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Feliciano-Munoz v. Rebarber-Ocasio, 970 F.3d 53, 62 (1st Cir. 2020) (quoting Fed.R.Civ.P. 56(a)). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists where the evidence with respect to the material fact in dispute “is such that a reasonable jury could return a verdict for the nonmoving party.” Id.


Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The court must view the entire record in the light most favorable to the non-moving party and indulge all reasonable inferences in that party's favor. Miller v. Sunapee Difference, LLC, 918 F.3d 172, 176 (1st Cir. 2019). Where, as here, parties file cross-motions for summary judgment, this posture “do[es] not alter the basic [summary judgment] standard, but rather simply require[s] [the court] to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Alasaad v. Mayorkas, 988 F.3d 8, 16 (1st Cir. 2021) (internal quotation omitted).

“As this case arises in diversity jurisdiction, ‘we must apply state substantive law to assess whether summary judgment is appropriate.'” Gonzalez-Caban v. JR Seafood Inc., 48 F.4th 10, 14 (1st Cir. 2022) (quoting Lopez-Santos v. Metro. Sec. Servs., 967 F.3d 7, 11 (1st Cir. 2020)). The parties agree that Massachusetts law applies here, and the court sees no reason to disturb that agreement. See Conformis, Inc. v. Aetna, Inc., --- F.4th ---, 2023 WL 355070, at *3 (1st Cir. 2023) (citing Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991)) (accepting parties' reasonable choice of controlling law in diversity case). Under Massachusetts law, the construction of an insurance policy,


as with any contract, is a question of law. Easthampton Congregational Church v. Church Mut. Ins. Co., 916 F.3d 86, 91 (1st Cir. 2019) (internal citations omitted); see PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010) (“interpreting a contractual term [is] a question of law for the courts”). Such “a question of law [is] appropriate for resolution by summary judgment.” Fernandes v. AGAR Supply, Inc., 687 F.3d 39, 42 (1st Cir. 2012) (quoting Afarian v. Mass. Elec. Co., 866 N.E.2d 901, 905 (Mass. 2007)).

III. Discussion

A. The Duty to Defend and the Duty to Indemnify

This action raises questions about two duties that insurers may owe to their insureds: the duty to defend and the duty to indemnify. Nautilus expressly took on both duties through the policy it issued to Partington:

We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply.

(Dkt. No. 1-1, p. 21). Plainly, Nautilus must defend and indemnify Partington for covered losses, but not for uncovered losses. See Vt. Mut. Ins. Co. v. Poirier, 189 N.E.3d 306, 310 (Mass. 2022) (“If the language of an insurance policy is unambiguous, then we


construe the words in their usual and ordinary sense”) (internal quotation omitted). Where the two duties differ is in the approach each requires for determining whether a loss is “covered.”

An insurer has a duty to defend its insured in an action when the allegations against the insured, as stated in the complaint, “are reasonably susceptible of an interpretation that they state or adumbrate a claim covered by the policy terms.” Ruggerio Ambulance Serv., Inc. v. Nat'l Grange Ins. Co., 724 N.E.2d 295, 298 (Mass. 2000) (internal quotation omitted); see Billings v. Commerce Ins. Co., 936 N.E.2d 408, 414 n.6 (Mass. 2010) (replacing antiquated word “adumbrate” with “roughly sketch”). The inquiry turns on the nature of the claim rather than the likelihood of success, and even a weak or frivolous claim can trigger the duty to defend. Metro. Prop. and Cas. Ins. Co. v. Morrison, 951 N.E.2d 662, 668 (Mass. 2011); see Utica Mut. Ins. Co. v. Fontneau, 875 N.E.2d 508, 512 (Mass. App. Ct. 2007) (citing Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 706 N.E.2d 1135, 1137 (Mass. 1999)) (noting that duty to defend arises out of allegations that give rise to a “possibility of recovery,” not a “probability of recovery”). Likewise:

[t]he process is not one of looking at the legal theory enunciated by the pleader but of envisaging what kinds of losses may be proved as lying within the range of the allegations of the complaint, and

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