Strong v. Merchants Mut. Ins. Co.

• Decision Date: 09 April 1974
• Citation: 2 Mass.App.Ct. 142,309 N.E.2d 510
• Parties: William B. STRONG, Sr., trustee, v. MERCHANTS MUTUAL INSURANCE COMPANY et al. 1
• Court: Appeals Court of Massachusetts

Page 510

309 N.E.2d 510

2 Mass.App.Ct. 142

William B. STRONG, Sr., trustee, v. MERCHANTS MUTUAL INSURANCE COMPANY et al. ¹

Appeals Court of Massachusetts, Middlesex.

Argued Feb. 13, 1973.

Decided April 9, 1974.

Joseph M. Cohen, Boston, for William B. Strong, Sr., trustee.

John M. Crean, Peabody, for Warren Five Cents Savings Bank.

Edward Nappan, Boston, for Merchants Mutual Ins. Co.

Ralph Davis, Boston (Allen B. Schwartz, Boston, with him), for Duco Associates, Inc. and another.

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

GOODMAN, Judge.

This is a bill for declaratory and other relief (G.L. c. 231A, § 1). The plaintiff, trustee of the Berkeley Trust, seeks a determination that a notice by the defendant Merchants Mutual Insurance Company (insurer) cancelling fire insurance on property owned by the trust was invalid. The plaintiff also seeks a determination that the resulting entry on the property by the Warren Five Cents Savings Bank of Peabody (bank), the holder of a first mortgage thereon, was consequently invalid, as was the subsequent entry by the defendants Allen B. Schwartz and Duco Associates, Inc., joint holders of a second mortgage (second mortgagee). In addition the plaintiff seeks damages from the insurer for wrongful cancellation and from the bank for wrongful possession. The case was referred to a master who filed a report, limited to an accounting, and thereafter a final report which incorporated the first report and to which were appended the plaintiff's objections to the final report and summaries of evidence relating to certain of the objections. The court confirmed the master's report and entered a final decree declaring that the insurer's cancellation of the policies on the plaintiff's premises 'was valid and in accordance with the provisions of the insurance contract between the petitioner and the . . . (insurer),' that the bank's consequent possession of the premises was justified by its mortgage, and that the possession thereafter taken by the second mortgagee was also valid. The decree further declared the indebtedness of the plaintiff to the second mortgagee as of October 29, 1970, and that none of the defendants was liable to the plaintiff in respect to any matter alleged in the bill. The case is here on the plaintiff's appeal from an interlocutory decree confirming the master's report, from an order discharging a lis pendens and from the final decree.

The pertinent facts from the master's report (including the exhibits incorporated therein) are as follows: The plaintiff mortgaged the property in question on October 2, 1967, to the bank to secure a note for $116,500 payable in monthly installments of $1,292 to cover principal, interest and taxes. On December 11, 1968, the plaintiff gave a second mortgage to secure his note for $10,000 to the second mortgagee. The mortgage to the bank contained a covenant '(t)o insure in sums and in companies satisfactory to the mortgagee and for its benefit . . . against fire . . ..' ² On October 23, 1968, two fire insurance policies on the property were issued by the insurer, each for $60,000 and each for a period of three years. On October 30 a premium of $945 for each policy was paid, covering the entire three year period. Thereafter, about December 31, 1968, the premium on each of these two policies was increased to $1,278, and the plaintiff was billed for the difference; the plaintiff did not pay it in spite of subsequent invoices sent to him. On August 29, 1969, the insurer sent cancellation notices covering the two policies to the bank and the plaintiff. ³ The bank received its notices on September 3 and during the first week of September advised the plaintiff of the cancellations and asked him to see to it that the property was insured. On September 10 the assistant treasurer of the bank told the plaintiff that all three policies had been cancelled and, as the master found, 'repeated essentially the content of the (bank's) letter of 9/3/69' which it had sent to the plaintiff and which had stated that 'failure to maintain satisfactory fire insurance coverage . . . is a default of your mortgage . . ..' ⁴

On September 16, 1969, the bank entered into possession ('properly and rightfully,' the master found), notified the plaintiff, hired a firm to manage the property and placed insurance on the property adequate to cover the amount of the mortgage. Thereafter, on October 8, the insurer reinstated the two insurance policies, and on October 10 counsel for the bank advised the plaintiff by letter that it had received notice of the reinstatement and was in the process of preparing a statement of its expenses and information concerning the 'status of the account.' By letter of October 20 the bank's attorney notified the plaintiff that he had been instructed to commence foreclosure proceedings and suggested that the plaintiff 'pay up and avoid the expense involved in foreclosure.' By letter of October 21 the bank notified the plaintiff's attorney that it was prepared to turn over the property to the plaintiff upon payment of $2,778.54, which was itemized, plus 'any legal fees in connection with the matter.' The letter also advised the plaintiff's attorney that '(t)he account has been turned over to our attorney to start foreclosure proceedings, and unless the above total is paid by October 31, 1969, he will be instructed to proceed accordingly.' The plaintiff, however, made no further payments to the bank; his last payment was on September 12, 1969, representing the monthly payment due on August 15, 1969.

The bank remained in possession until December 5, 1969, when the second mortgagee took possession because of a default in monthly payments, the last payment to the second mortgagee having also been made on September 12, 1969. The second mortgagee paid the bank the amount due from the plaintiff for the period, September 15, 1969, to December 5, 1969, and thereafter managed the property and continued making the monthly payments due to the bank from the plaintiff. As of October 29, 1970, the plaintiff owed the second mortgagee a total of $24,225.65, representing the principal of the second mortgage note in the amount of $10,000 plus interest thereon, management expenses, and payments made to the bank, the latter two items continuing to (at least) the date of the master's report. In addition, the master found that there was owing from the plaintiff to the second mortgagee $1,750 for legal fees, making a total of $25,975.65. On March 15, 1970, the second mortgagee advertised a foreclosure auction sale of the property to take place on March 19, 1970. On March 17, 1970, the bill for declaratory relief in this case was entered and a temporary restraining order issued. ⁵

The plaintiff's primary attack is on the declaration in the decree that the notices of cancellation by the insurer were valid, and from that he argues that the bank wrongfully took possession. We agree that the cancellation notices were invalid as between the plaintiff and the insurer; but it does not follow that the bank's possession was wrongful.

1. The cancellation notices to the plaintiff. The insurance policies contained the standard form cancellation clause ⁶ as required by G.L. c. 175, § 99 (prior to St.1969, c. 425, § 1). That clause required that any cancellation notice should either be accompanied by a tender of the unearned premium or state that the unearned premium would be refunded on demand. The notices given by the insurer to the plaintiff list four statements concerning the status of his premium, two relevant if the premium has not been paid, ⁷ and two relevant if a return of unearned premium is due. ⁸ Each statement is preceded by a small box, and the following note appears below: 'AGENT NOTE: The above additional information must appear on original copy of Cancellation Notice mailed to the Insured and on the carbon copies. Place an 'X' in the box at the left of the condition applying.' No 'X' was placed in any of the boxes on the cancellation notices sent to the plaintiff, and the amounts were left blank.

It is clear from the master's report that when the cancellation notices were sent there was an 'excess of paid premium . . . above the pro rata premium for the expired time.' ⁹ These unearned premiums were not tendered--as appears from the failure to check the first statement under the heading, 'PREMIUM PAID' (fn. 8)--and the failure to check the last statement indicated, if anything, that nothing would be refunded on demand. The notices of cancellation were thus ineffective to cancel the insurer's liability on the policies to the plaintiff. 'A notice of cancellation of insurance must be definite and certain. . . . Conditions imposed with respect to giving notice must be strictly complied with. . . . (citing Michelson v. Franklin Fire Ins. Co., 252 Mass. 336, 340, 147 N.E. 851 (1925)).' Gulesian v. Senibaldi, 289 Mass. 384, 387, 194 N.E. 119, 120 (1935). Fields v. Parsons, 353 Mass. 706, 234 N.E.2d 744 (1968). See White v. Edwards, 352 Mass. 655, 657, 227 N.E.2d 354 (1967). And '(c)ompliance with a provision of the policy that the notice of cancellation state that the excess premium will be refunded on demand is essential to a valid cancellation upon notice.' Couch, Insurance (2d ed.) § 67:155, p. 489. 43 Am.Jur.2d, Insurance, § 405, p. 450. While we have found no case in which the Supreme Judicial Court has dealt with these specific circumstances, our decision is in accord with those from other jurisdictions. See Petersen v. Ohio Cas. Ins Co., 131 Neb. 128, 137, 267 N.W. 393 (1936), collecting cases from a number of other jurisdictions; Allied Concord Financial Corp. v. Sterling Ins. Co., 251 S.C. 38, 40--41, 159 S.E.2d 919 (1968); Pellets, Inc. v. Millers Mut. Fire Ins. Co., 241 So.2d 550, 553 (La.App.1970), cert. den. 257 La. 607, 243 So.2d 274 (1971). The case of First Natl. Bank in Chicago Heights v. Home Ins. Co., 350 F.2d 577 (7th Cir. 19...