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Pacific Indemnity Co. v. Deming

United States District Court, D. Massachusetts

October 16, 2015

PACIFIC INDEMNITY COMPANY, Plaintiff,
v.
JOHN DEMING, Defendant

          For Pacific Indemnity Company, Plaintiff: Daniel Q. Harrington, LEAD ATTORNEY, Cozen & O'Connor The Atrium, Third Floor, Philadelphia, PA; Patrick J. Loftus, III, Law Offices of Patrick Loftus, Boston, MA.

         For John Deming, Defendant: Joseph M. Noone, Julie M. Brady, Avery, Dooley, Post & Avery LLP, Belmont, MA.

         MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT

         Leo T. Sorokin, UNITED STATES DISTRICT JUDGE.

         This case involves negligence resulting from an overflowed bathtub at a Trinity Place Condominium unit on May 27, 2013. Pacific Indemnity Company (" Pacific" ) insured the damaged unit and brings this action as the subrogee against John Deming (" Deming" ) in the amount of $351,159.01. It is undisputed that Deming was negligent in allowing his bathtub to overflow. The sole issue before the Court is whether Pacific's rights to subrogation have been waived. After reviewing the memoranda filed, including supplemental memoranda ordered by the Court, and hearing the competing motions, the Court finds Pacific's rights of subrogation have been waived, and Deming's Motion for Summary Judgment is ALLOWED. Pacific's Cross Motion for Summary Judgment is DENIED.

         I. FACTS

         The following facts have been stipulated to by the parties in substantially the following form:

1. On the morning of May 27, 2013, defendant John Deming turned on the bathtub faucet in the master bathroom of Unit 1801, 1 Huntington Avenue, Boston, Massachusetts.
2. After turning on the bathtub John Deming went into a bedroom, laid down and fell asleep. When he awoke he found that the bathtub faucet in the master bathroom that he had turned on prior to falling asleep was still running, and the water was overflowing the tub. The water which overflowed, leaked into condominium units below Unit 1801and damaged Unit 1601.
3. Pacific issued Policy Number 10560357-10 which insured condominium Unit 1601 at 1 Huntington Avenue, Boston, Massachusetts, on May 27, 2013. Pacific made payment under the Policy in the total amount of $351,159.01 for damages to condominium Unit 1601, which were claimed to have resulted from a May 27, 2013, water damage incident. The policy provides in the section called Transfer of Rights that: " All of your rights of recovery will become our rights to the extent of any payment we make under this policy. A covered person will do everything necessary to secure such rights; and do nothing after a loss to prejudice such rights. However, you may waive any rights of recovery from another person or organization for a covered loss in writing before the loss occurs."
4. Deming entered into a lease for the premises located at 1 Huntington Avenue, Boston, MA, Unit 1801. The lease agreement with the Unit Owner contains the following provision in the " Addendum to Lease," Paragraph 7:
Lessee acknowledges having received copies of the Master Deed, Condominium Trust, By-Laws and Rules and Regulations of the Trinity Place Condominium, as now in force and effect, and Lessee agrees to fully abide by the terms of same, as applicable to Lessee, as now in force and effect, and as may be amended. The Lessee shall be responsible for and bear all costs and expenses (including reasonable attorney's fees, costs and expenses) relating to any enforcement, eviction or similar proceedings resulting from the failure of the Lessee or occupant or guest of Lessee to comply with all of the applicable provisions and restrictions in the Trinity Place Master Deed, Condominium Trust, By-Laws and the Rules and Regulations, as now in force and effect and as may be amended or modified.
5. In accordance with Lease Addendum Paragraph 7, Deming provided a letter to Condo Trustees, which provided as follows:
This letter will evidence our acknowledgement and agreement to comply with all applicable provisions of the Trinity Place Master Deed, Condominium Trust, By-Laws and all Rules and Regulations promulgated pursuant thereto, as now in force and affect, and as same may be amended or modified.
6. The Master Deed provides in Section (g) (II) (Page 12) states that all " rentals, leases... of units shall be subject to the provisions of this Master Deed and of the Declaration of Trust the Condominium Trust and the By-Laws and Rules and Regulations thereto and all tenants, occupants and licensees of Units shall be obligated to observe the provisions this Master Deed, the Declaration of Trust of the Condominium Trust and the By-Laws and Rules and Regulations thereto.
7. The Master Deed Section (p) (Page 21) provides, in part, as follows:
All present and future owners, visitors, servants and occupants of Units, ... shall be subject to, and shall comply with, the provisions of this Master Deed as the same may be from time to time amended, the Unit deed, the Declaration of Trust of the condominium Trust and the By-Laws, and the Rules and Regulations of the Condominium Trust as the same may be from time to time amended and the rights, easements, agreements and restrictions of record and all matters set forth on Exhibit A hereto insofar as the same now are, or are in the future, in force and applicable. The acceptance of a deed or conveyance or the entering into occupancy of any Unit. ... shall constitute an agreement that the provisions of this Master Deed as the same may be from time to time amended, and the said rights, easements, agreement and restrictions, ... and the Unit deed, and the Declaration of Trust of the Condominium Trust and the By-Laws and Rules and Regulations thereto, as the same may be from time to time amended, are accepted and ratified by such owner, visitor, servant or occupant, and all of such provisions shall be ...

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