Marc Levine, Individually and as Trustee  et al. 
Aljasa Realty, LLC et al.  No. 132983
Date March 2, 2016
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT
MERRIMACK MUTUAL FIRE INSURANCE COMPANY'S MOTION FOR
J. Curran, J.
the most vigorous factual disputes cannot save a claim from
summary judgment if those facts are not material to a final
determination of the parties' legal rights. Scholz v.
Delp, 473 Mass. 242, 249, 41 N.E.3d 38 (2015). Such is
the case here. In 2011, a stone retaining wall collapsed in
the plaintiffs Marc Levine and Ute Groening's backyard.
The defendant Merrimack Mutual Fire Insurance Company was
their homeowner's insurance carrier. When the plaintiffs
submitted a claim for coverage, Merrimack denied it, citing
exclusions in the policy. The plaintiffs now assert this
amounted to a breach of contract and violated both G.L.c. 93A
and c. 176D.
record reveals continued disagreement among the parties as to
the cause of the wall's collapse. Yet, even taking as
true all of the facts alleged by the plaintiffs, their claim
must fail. A plain reading of the insurance contract reveals
that the damage was not covered, regardless of its cause.
Therefore, the Court ALLOWS defendant Merrimack's motion
for summary judgment and DENIES the plaintiffs'
corresponding cross motion.
plaintiffs own a two-family home at 32 Mason Terrace in
Brookline, Massachusetts, which they have rented to tenants
since 2010. Their back door neighbors--also defendants in
this suit--own property that, because of the natural
topography of the land, rests at a higher elevation than the
plaintiffs' backyard. A 10-foot stone retaining wall has
sat on the property line between the two parcels for 100
years, abutting the rear, northerly edge of the
plaintiffs' property and the rear, southerly edge of
defendants Shai Gozani and Michelle Rosen's property.
October 2009, defendant Aljasa Realty LLC purchased that back
lot (38 York Terrace) to renovate and sell it. The defendant
Benjamin Abrams was the site engineer and designer on the
project, and Ricky Cato acted as general contractor. In March
2010, in order to level the backyard, they installed a timber
wall towards the rear property line and backfilled the space
with soil. The plaintiffs claim the weight and pressure of
the timber wall and additional soil overburdened the stone
retaining wall, causing it to bow and crack.
April 2010, the plaintiffs submitted a claim for insurance
coverage to the defendant Merrimack, which denied the claim.
In May 2010, the plaintiffs demanded that Aljasa repair and
replace the stone retaining wall, as well as remove the
timber wall and added soil from the backyard of 38 York
Terrace. Aljasa denied responsibility for the retaining
wall's compromised structure and refused to alter
construction plans. Aljasa later sold the 38 York Terrace
property to the defendants Gozani and Rosen. In March 2011,
the retaining wall collapsed entirely. Its materials, as well
as significant amounts of dirt from behind it, spilled onto
the plaintiffs' backyard and deck.
plaintiffs initially filed this case in December 2010. They
brought a second amended complaint in March 2011, which named
Gozani, Rosen, Aljasa, Abrams, and Merrimack as defendants.
Count V alleges that Merrimack breached the terms of the
insurance contract by refusing to provide coverage; Count VII
sets forth related claims for damages under G.L.c. 93A and c.
176D; and Count VI request a declaratory judgment on the
parties' rights and obligations under the terms of the
insurance contract. The plaintiffs and Merrimack have filed
cross motions for summary judgment on Counts V through VII.
The defendant Aljasa has joined the plaintiffs in opposing
Merrimack's motion. The Court held a hearing on the
Standard of Review
Summary judgment is appropriate in cases without issues of
material fact and when the moving party is entitled to
judgment as a matter of law. Mass.R.Civ.P. 56(c);
Kourouvacilis v. General Motors Corp., 410 Mass.
706, 716, 575 N.E.2d 734 (1991). A fact is "
material" only when it might affect the outcome of the
suit under applicable law. Carey v. New England Organ
Bank, 446 Mass. 270, 278, 843 N.E.2d 1070 (2006).
deciding motions for summary judgment, the court generally
considers pleadings, deposition transcripts, answers to
interrogatories, admissions on file, and affidavits.
Mass.R.Civ.P. 56(c). The court reviews the evidence in the
light most favorable to the non-moving party, but does not
weigh evidence, assess credibility, or find facts.
Attorney Gen. v. Bailey, 386 Mass. 367, 371, 436
N.E.2d 139 (1982).