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Amica Mutual Insurance Co. v. Kahn

United States District Court, D. Massachusetts

August 12, 2014

ROBERT KAHN, as the Administrator of the Estate of Ruth Solomont, and HARRIET KAHN, Defendants.


MARIANNE B. BOWLER, Magistrate Judge.

Pending before this court is a motion for summary judgment filed by plaintiff AMICA Mutual Insurance Company ("plaintiff" or "Amica"). Defendants Robert Kahn, as the Administrator of the Estate of Ruth Solomont ("Solomont"), and Harriet Kahn (collectively "defendants" or "the Kahns") oppose the motion. (Docket Entry #27). After conducting a hearing, this court took the motion (Docket Entry #24) under advisement.


Plaintiff filed a complaint against defendants seeking a declaratory judgment determining the parties' respective rights and obligations under an automobile insurance policy issued by plaintiff to defendants. (Docket Entry #1). The complaint seeks a declaration that there is no coverage for an underinsured motorist claim arising out of an October 4, 2006 accident involving Solomont because: (1) Solomont was not a member of defendants' "household" at the time of the accident; (2) defendants failed to properly notify plaintiff of the accident and plaintiff was materially prejudiced by the delay; and (3) Solomont executed a settlement agreement with the alleged tortfeasor, the driver of the vehicle in which Solomont was injured, without plaintiff's consent thereby causing plaintiff to suffer material prejudice.


Summary judgment is appropriate if the "record reveals no genuine issue as to any material fact' and the movant is entitled to judgment as a matter of law.'" Vineberg v. Bissonnette , 548 F.3d 50, 55 (1st Cir. 2008). It is inappropriate "if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side." Pierce v. Cotuit Fire District , 741 F.3d 295, 301 (1st Cir. 2014); see also Caban-Rodriguez v. Jimenez-Perez, 2014 WL 959489, at *1 (1st Cir. March 12, 2014) (applying "the same legal standard as the district court" when reviewing summary judgment).

"Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose existence or nonexistence has the potential to change the outcome of the suit.'" Green Mountain Realty Corp. v. Leonard , 750 F.3d 30, 38 (1st Cir. 2014). The evidence is viewed "in the light most favorable to the non-moving party" and "all reasonable inferences" are drawn in his favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). In reviewing a summary judgment motion, a court may examine "all of the record materials on file." Id . "Unsupported allegations and speculation" however "do not demonstrate either entitlement to summary judgment or the existence of a genuine issue of material fact sufficient to defeat summary judgment." Rivera-Colon v. Mills , 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum Servicing, Corp. , 747 F.3d 37, 40 (1st Cir. 2014) ("allegations of a merely speculative or conclusory nature are rightly disregarded"). Adhering to this framework, the record sets out the following facts.


Plaintiff issued defendants an automobile insurance policy with effective dates of August 1, 2006 to August 1, 2007 ("the Amica policy").[1] (Docket Entry #25-1). Solomont, now deceased, was Harriet Kahn's mother. (Docket Entry #27, Ex. L, p. 10) (Docket Entry #27, Ex. M, p. 4). Robert Kahn is the administrator of Solomont's estate. (Docket Entry #1, ¶ 3) (Docket Entry #5, ¶ 3).

I. The Accident

On October 4, 2006, Solomont was riding in the passenger seat of a 1999 Subaru Legacy owned and driven by her private home health care aide, Camille Caruso ("Caruso"). (Docket Entry # 25-2) (Docket Entry #27, Ex. M, p. 23). Caruso worked for Comfort Keepers, a home health care franchise based in Newton, Massachusetts. (Docket Entry #25-4). Caruso was traveling straight on Commonwealth Avenue in Newton, Massachusetts when she turned to speak to Solomont and drove through a red light. (Docket Entry #25-2, p. 3). Caruso then struck an automobile traveling straight on Lowell Avenue. (Docket Entry #25-2, p. 3). When police officers arrived at the scene, they spoke with a witness to the accident who confirmed this sequence of events. (Docket Entry #25-2, p. 3). Solomont was taken by ambulance to Newton Wellesley Hospital. (Docket Entry #25-2, p. 3).

Prior to the accident, Solomont suffered from cardiac disease, hypertension and arthritis that affected her joints. She also "took blood pressure pills" and "had severe anemia." (Docket Entry #27, Ex. L, p. 48) (Docket Entry #27, Ex. M, pp. 27, 30). Solomont was unable to drive herself and had private aides drive her various places but was otherwise selfsufficient. (Docket Entry #27, Ex. M, p. 27) (Docket Entry # 27, Ex. L, pp. 46-47). Private home health aides assisted Solomont for "several hours" each week. (Docket Entry #27, Ex. M, p. 21).

Solomont suffered bruises and a fractured sternum from the accident. (Docket Entry #27, Ex. M, p. 30). She spent two nights at Newton Wellesley Hospital. (Docket Entry #27, Ex. M, p. 32). Upon her discharge, Solomont returned to an apartment at defendants' residence where she required 24 hour care. (Docket Entry #27, Ex. M, pp. 35-37). Viewing the record in defendants' favor, Caruso took care of Solomont after the accident before she traveled back to Florida.

Harriet Kahn testified by examination under oath that Solomont "was on pain pills" after the accident but she could not remember how long Solomont took the pain pills or if Solomont had any physical therapy after the accident. (Docket Entry #27, Ex. M, p. 30). Harriet Kahn also could not recall if Solomont had any medical treatment when she returned to Florida in late December 2006. Harriet Kahn's memory of other aspects of Solomont's post accident injuries was incomplete.

Testifying by examination under oath, Robert Kahn described that Solomont had difficulty walking because of the pain and needed assistance for normal activities such as dressing and cooking. (Docket Entry #27, Ex. L, p. 59). He did not know if Solomont sought treatment with any other health care providers after her release from Newton Wellesley Hospital. (Docket Entry # 27, Ex. L, p. 56). Solomont died on December 23, 2009.

At the time of the accident, Caruso had an automobile insurance policy issued by American Automobile Insurance Company ("AA Insurance") with liability limits of $20, 000. (Docket Entry #1, ¶ 22) (Docket Entry #5, ¶ 22). On November 4, 2008, 25 months after the accident, Solomont signed a covenant not to execute against Caruso's assets and to release AA Insurance insofar as the company insures Caruso ("the covenant"). (Docket Entry #25-8). The covenant did not release any "rights relative to PIP, Medical Payments, and Underinsurance or Uninsurance under any policies of insurance." (Docket Entry # 25-8). It also did not release Solomont's "rights to proceed against Comfort Keepers, Brook Care, LLC, Donovan Insurance Agency, Lockton Risk Management, Hanover Insurance [or] C.K. Franchising, Inc." (Docket Entry #25-8). Under the covenant, Solomont released AA Insurance and agreed not to pursue any claim against the personal assets of Caruso in consideration of a payment of the $20, 000 AA Insurance policy limit. (Docket Entry #25-8, Ex. H).

Caruso owned the 1999 Subaru Legacy. (Docket Entry #27, Ex. M, p. 23). At the time of her February 2012 deposition, she rented her home, was unemployed and received social security. (Docket Entry #25-4, Ex. D). Harriet Kahn testified that Caruso "had no money" and was "struggling." (Docket Entry #27, Ex. M, p. 38). Plaintiff was never made aware of and did not consent to the covenant. (Docket Entry #25-9, Ex. I).

II. The Amica Policy

The Amica policy provides coverage for "bodily injury caused by an underinsured auto." (Docket Entry #25-1, p. 6). The relevant ...

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