Heard: December 15, 2016.
action commenced in the Superior Court Department on July 30,
case was heard by Heidi E. Brieger, J., and entry of separate
and final judgment was ordered by her.
T. Scamby for the plaintiff.
Jeffrey T. Scuteri for Christopher Tilley & another.
C. Kober for Vermont Mutual Insurance Company.
Present: Cypher, Maldonado, & Blake, JJ. 
insureds, Angela Tilley and Christopher Tilley,
owned a dog that caused property damage and injury to 2 the
plaintiff, Edith Schultz. Schultz filed suit against the
Tilleys and the defendant, Vermont Mutual Insurance Company
(Vermont Mutual). Vermont Mutual counterclaimed and
cross-claimed, seeking a declaration that the homeowner's
policy at issue was void as a result of the insureds'
material misrepresentations on their application for
insurance as to the dog's bite history and their history
of loss. Following a bench trial on the issue of coverage
only, a judge of the Superior Court agreed with Vermont
Mutual on the bite history issue, and accordingly dismissed
Schultz's complaint against Vermont Mutual. The Tilleys
and Schultz (collectively, the appellants) now jointly
summarize the facts as found by the judge, supplemented by
undisputed information from the record, with certain facts
reserved for later discussion. On December 30, 2010,
Christopher visited the Tarpey Insurance Group (Tarpey) in
Peabody for the purpose of obtaining homeowner's
insurance for his residence in Peabody. With the assistance
of Elaine Faithful, one of Tarpey's customer service
representatives, Christopher completed an application for
insurance with Vermont Mutual. On the application,
Christopher responded "Yes" to the question,
"Are there any animals or exotic pets kept on
premises?" As a follow-up, the application states, in
parentheses, "Note breed and bite history." Under
the "Remarks" section of the application, Faithful
noted, "American bull dog -- no biting incidents."
Another section of the application was entitled "Loss
History" and asked, "Any losses, whether or not
paid by insurance, during the last 6 years, at this or at any
other location?" Christopher responded "No"
and placed his initials adjacent to his response. At the
bottom of the application, just above the signature line, it
states: "I have read the above application and any
attachments. I declare that the information in them is true,
complete and correct to the best of my knowledge and
belief." Christopher signed and dated the application.
Vermont Mutual subsequently issued a homeowner's policy
to the Tilleys.
March 18, 2011, Schultz was walking her two Yorkshire
Terriers on Harrison Avenue in Peabody. As she was walking
near the Tilleys' home, their American Bulldog, Bocephus,
ran out and attacked Schultz's dogs. Before Angela and
other neighbors could restrain Bocephus, he injured
Shultz's dogs. In attempting to protect her dogs from the
attack, Schultz suffered a broken arm, a laceration to her
face, and scrapes to her knees, elbows, and ankles. On March
21, 2011, Christopher reported the incident to Tarpey, who in
turn notified Vermont Mutual.
notification of the claim, Vermont Mutual commenced an
investigation. During that process, it learned that Bocephus
had bitten two other dogs prior to the date of
Christopher's insurance application. In particular,
Vermont Mutual learned that on November 12, 2009, Bocephus
bit a dog named Buddy, who was walking near the Tilleys'
house. Buddy's owner filed a police report and spoke with
Peabody's animal control officer. Buddy's owner also
incurred a $200 veterinarian bill as a result of the bite,
which the Tilleys voluntarily paid. In July, 2010, Bocephus
bit another dog, Bruno, who also was walking near the
Tilleys' house. After confirming that Bocephus was
current on his shots, Bruno's owner took no further
action. At trial, Christopher acknowledged that he was aware
of both of these incidents at the time he applied for
insurance in December, 2010.
30, 2013, Schultz filed a complaint in the Superior Court
alleging strict liability and negligence on the part of the
Tilleys (counts I-IV), and unfair claim settlement practices,
in violation of G. L. c. 176D, on the part of Vermont Mutual
(count V). On August 26, 2013, Vermont Mutual filed its
answer, cross claim, and counterclaim, seeking a declaration
against Schultz and the Tilleys that the policy is void and
does not afford coverage. In July, 2014, the case was tried
on the issue of coverage only. During the trial, the parties