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Preferred Mutual Insurance Company v. Vermont Mutual Insurance Company

Appeals Court of Massachusetts, Middlesex

June 17, 2015

Preferred Mutual Insurance Company
v.
Vermont Mutual Insurance Company & others. [1]

Argued October 7, 2014

Civil action commenced in the Superior Court Department on March 30, 2012.

The case was heard by Dennis J. Curran, J., on motions for summary judgment, and entry of separate and final judgment was ordered by him.

Peter C. Kober for Vermont Mutual Insurance Company.

Robert A. Curley, Jr., for the plaintiff.

Present: Cohen, Wolohojian, & Blake, JJ.

OPINION

Page 511

Cohen, J.

This insurance dispute arises from an accident in which Richard Dubois was injured while working at a residence in Medford. The residence was owned by Francis and Eileen Munyon, who lived there with their adult son, Joseph.[2] In October, 2009, the Munyons undertook to renovate their second-floor bathroom and hired Dubois's employer as the plumbing contractor. On Dubois's first day on the job, he removed old copper piping and other debris from the bathroom and attempted to throw it into the backyard from a second-floor deck. Unbeknownst to Dubois, on the previous day, Joseph had unfastened the porch railing in order to push the old cast iron bathtub into the backyard; but when he finished, he left the railing in an upright position so it appeared to be securely in place. While leaning against the unsecured railing, Dubois fell to the ground and was injured. Dubois and his wife later filed suit against Joseph and his parents, alleging that they were liable for Dubois's personal injuries and his wife's loss of consortium.

At the time of the accident, Francis and Eileen were the named insureds under a homeowner's policy issued by the defendant, Vermont Mutual Insurance Company (Vermont). In addition, by virtue of his status as a resident relative, Joseph, too, was an insured under the Vermont policy. Independently, Joseph was the named insured under a commercial lines policy issued by the plaintiff, Preferred Mutual Insurance Company (Preferred), in connection with Joseph's business as a self-employed licensed electrician. Both Vermont and Preferred were notified of the Duboises' claims. Vermont assumed the defense of Francis and Eileen, but refused to defend Joseph. Preferred undertook to defend Joseph, but did so under a reservation of rights. As discussed below, the coverage issues raised by the insurers related to Joseph's role in the renovation project and whether he was acting in a personal or business capacity.

The Dubois lawsuit ultimately was successful. After a trial in 2013, a jury found Francis, Eileen, and Joseph liable for Dubois's personal injuries and his wife's loss of consortium. Judgment entered for Dubois in the amount of $226,218.49, and for his wife in the amount of $12,567.69. Vermont paid the judgments in their entirety on behalf of Francis and Eileen, who subsequently ob-

Page 512

tained a judgment against Joseph for contribution.[3]

While the underlying case was pending, Preferred filed the instant action, naming Vermont, Joseph, and the Duboises as defendants. In count I of its complaint, Preferred sought a judgment declaring that its policy did not afford coverage for the underlying claims and that Vermont was obliged to defend and indemnify Joseph. In count II, Preferred asserted an equitable claim against Vermont for fifty percent of all defense costs incurred by Preferred on Joseph's behalf. Preferred and Vermont filed cross motions for summary judgment, which were decided after the underlying case had been concluded. After a hearing, a judge of the Superior Court allowed Preferred's motion and denied Vermont's motion. The judge ruled that Preferred had no duty to defend or indemnify; that Vermont had both a duty to defend and a duty to indemnify; and that Vermont was required to reimburse the entirety of the defense costs incurred by Preferred in defending Joseph.

Vermont now appeals from a separate and final judgment that entered as a result of these rulings.[4] After de novo review, see Norfolk & Dedham Mut. Fire Ins. Co. v. Cleary Consultants, Inc., 81 Mass.App.Ct. 40, 47, 958 N.E.2d 853 (2011), we affirm in part and vacate in part.

1. Relevant policy provisions.

a. Vermont policy.

The liability coverage section of the Vermont policy contains a so-called " business pursuits exclusion" stating that coverage does not apply to bodily injury " [a]rising out of or in connection with a business engaged in by an insured." In the " Definitions" section of the policy, " business" is defined to include " ...


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