June 12, 2017
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY
JUDGMENT BY DEFENDANT JOEL GONZALEZ AND PLAINTIFF LIBERTY
MUTUAL INSURANCE COMPANY
F. Lang, Justice of the Superior Court.
defendant/counterclaim plaintiff, Joel Gonzalez ("
Gonzalez"), has moved pursuant to Mass.R.Civ.P. 56 for
summary judgment on the issue of liability on his breach of
contract counterclaim against his insurer, the
plaintiff/counterclaim defendant, Liberty Mutual Insurance
Company (" Liberty Mutual") (Gonzalez's
Counterclaim Count I). Gonzalez also moves for summary
judgment as to Liberty Mutual's request for declaratory
relief under Count I of its complaint, wherein Liberty Mutual
seeks a declaration that Gonzalez's property loss claim
is not covered by the Liberty Mutual insurance policy in
place at the time of the loss (Count I of Liberty
Mutual's complaint). Liberty Mutual, in turn, has moved
for summary judgment on its claim for declaratory judgment,
as well as Gonzalez's counterclaims (breach of contract
and, in Counterclaim Count II, violation of G.L.c. 93A). This
dispute relates to a fire that co-defendant, Somaly Yet
(" Yet"), started at a house in Lynn, Massachusetts
that she and Gonzalez jointly owned. Both Gonzalez and Yet
were named as insureds on the Liberty Mutual policy. Although
Liberty Mutual alleges that Yet's actions were
precipitated by Gonzalez's just-announced termination of
their romantic relationship and his refusal of her overture
to reconcile, it is undisputed that Gonzalez did not
participate in the actual setting of the fire. Yet pleaded
guilty to a charge of arson (she also pleaded guilty to a
charge of assault and battery by means of a dangerous weapon,
relating to a collision between her vehicle and that of
Gonzalez outside the residence immediately after she set the
fire). On those unadorned and uncontested facts, Gonzalez and
Liberty Mutual each claim entitlement to a ruling as a matter
of law regarding whether the Liberty Mutual policy covered
the loss. A non-evidentiary hearing on the motion was held on
June 6, 2017. For the reasons that follow, Gonzalez's
Motion for Summary Judgment is ALLOWED and Liberty
Mutual's Motion for Summary Judgment is DENIED.
GOVERNING LEGAL PRINCIPLES
judgment is appropriate when the moving party demonstrates
that there is no genuine dispute of material fact and that he
is entitled to judgment as a matter of law. Mass.R.Civ.P.
56(c); Pederson v. Time, Inc., 404 Mass. 14, 16-17,
532 N.E.2d 1211 (1989) . The movant makes this showing by
submitting affirmative evidence that negates an essential
element of the opposing party's case or by demonstrating
that the opposing party has no reasonable expectation of
proving an essential element of his case at trial.
Flesner v. Technical Communications Corp., 410 Mass.
805, 809, 575 N.E.2d 1107 (1991). When the burden of proof at
trial would rest on the nonmoving party, the nonmovant may
not rest upon bare allegations or denials in the pleadings,
but must, by probative documentary evidence, set forth
specific facts showing that there is a genuine issue of
material fact for trial. See Pederson v. Time, Inc.,
404 Mass. at 17; Key Capital Corp. v. M& S
Liquidating Corp., 27 Mass.App.Ct. 721, 728, 542 N.E.2d
603 (1989), A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the
opposing party, leaves open an issue upon which reasonable
minds could differ. Cassesso v. Commissioner of
Corr., 390 Mass. 419, 422, 456 N.E.2d 1123 (1983).
the parties here filed cross motions for summary judgment
does nothing to alter or amend this standard of review; it is
not decisive of either the lack of factual controversy, see
Bernard J. Basch & Sons v. Travelers Indem. Co.,
392 Mass. 1002, 1003, 465 N.E.2d 248 (1984), or the absence
of a need for further evidentiary exploration of issues at
trial. Fidelity Co-op Bank v. Nova Cas. Co., 726
F.3d 31, 36 (1st Cir. 2013) (citation and internal quotation
omitted). It demands only that the court consider " each
motion separately and draw all reasonable inferences in favor
of the respective non-moving party." Roman Catholic
Bishop of Springfield v. City of Springfield, 724 F.3d
78, 89 (1st Cir. 2013). See Bernard J. Basch & Sons
v. Travelers Indem. Co., 392 Mass. at 1003. To that end,
the court considers pleadings, deposition transcripts,
answers to interrogatories, admissions on file, and
affidavits in the light most favorable to the applicable
non-moving party, but does not weigh evidence, assess
credibility, or find facts. See Mass.R.Civ.P. 56(c);
Attorney Gen. v. Bailey, 386 Mass. 367, 370-71, 436
N.E.2d 139 (1982).
dispute over the proper interpretation of an insurance policy
raises a question of law. Massachusetts Bay Transp. Auth.
v. Allianz Ins. Co., 413 Mass. 473, 476, 597 N.E.2d 439
(1992). See also Cody v. Connecticut Gen. Life Ins.
Co., 387 Mass. 142, 146, 439 N.E.2d 234 (1982) ("
The interpretation of an insurance contract is not a question
of fact for the jury[, ]" but " a question of law
for the [ ] judge"). Although generally interpreted in
the same manner as " any other contract, " The
Money Store/Massachusetts, Inc. v. Hingham Mut. Fire Ins.
Co., 430 Mass. 298, 300, 718 N.E.2d 840 (1999), the
rules of construction peculiar to insurance contracts apply.
Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. at
146. Like all contracts, the court is obliged to ask in the
first instance whether the contract, when viewed as a whole,
is clear and unambiguous. See Sullivan v. Southland Life
Ins. Co., 67 Mass.App.Ct. 439, 442, 854 N.E.2d 138
(2006). If it is, the court is required to construe the
express policy language in its plain, ordinary, and popular
sense as a matter of law, so as " to give reasonable
effect to each of its provisions." Id., quoting
J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789,
795, 494 N.E.2d 374 (1986). If, however, an ambiguity lurks
in the parties' agreement, it is a cardinal tenant of
insurance contract construction that the ambiguity is
construed in favor of the insured. Hazen Paper Co. v.
U.S. Fid. & Guar. Co., 407 Mass. 689, 700, 555
N.E.2d 576 (1990). In particular, exclusions are strictly
construed so as not to diminish the protections purchased by
the insured. City Fuel Corp. v. National Fire Ins. Co. of
Hartford, 446 Mass. 638, 640, 846 N.E.2d 775 (2006).
following facts are drawn from the summary judgment record.
They are undisputed, except where otherwise noted. Gonzalez
and Yet purchased a residence located at 48 Sheridan Street
in Lynn, Massachusetts on or about December 5, 2014. Gonzalez
and Yet subsequently purchased a homeowner's policy from
Liberty Mutual that covered damage and/or loss by fire. The
policy contained a list of exclusions. Of significance to
this case is the exclusion for " Intentional Loss,
" which provides:
We do not insure for loss caused directly or indirectly by
any of the following. Such loss is excluded regardless of any
other cause or event contributing concurrently or in any
sequence . . . Intentional Loss, meaning any loss arising out
of any act committed (1) By or at the direction of an "
insured"; and (2) With the intent to cause loss.
before 11:00 A.M. on April 3, 2015, Yet set fire to the
residence after Gonzalez told her that he was ending their
relationship. Soon after she set the fire, Yet was taken into
custody. On April 7, 2015, a designated forensic psychologist
of the Lynn District Court, Dr. Tammy Howe, filed her
evaluation report with the court and testified that Yet not
only met " the standard for commitment for the question
of competency" but also met the " standard for
commitment just based on psychiatric symptoms." Yet was
then committed to the Dr. Solomon Carter Fuller Mental Health
Center in Boston, and, on April 23, 2015, Dr. Daniel R.
Reilly, a board-certified forensic psychiatrist, determined
that Yet was incompetent to stand trial. Following several
weeks of treatment, Yet was deemed competent to stand trial.
Yet later pleaded guilty to a charge of arson and assault and
battery by means of a dangerous weapon.
Gonzalez sought payment under the policy, Liberty Mutual
denied his claim on the ground that his recovery was barred
by the intentional loss exclusion. Two months after denying
Gonzalez's claim, Liberty Mutual filed the instant action
seeking a declaration that Gonzalez (Count I) and Yet (Count
II) were not entitled to coverage under the ...