United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.
question presented is whether Mass. Gen. Laws ch. 175, §
99 assures property damage coverage for an innocent named
insured when an unnamed co-insured resident of the premises
they share intentionally sets those insured premises afire.
Plaintiff Susan Shepperson, the named insured of the
insurance policy before me, seeks to establish that she is
entitled to coverage irrespective of whether the fire which
damaged her residence was caused by her son, who I find to be
an unnamed co-insured and also a resident of the premises.
Concluding that the policy may not exclude coverage for Ms.
Shepperson as an innocent co-insured, I will grant her
summary judgment establishing the insurer's liability on
her contract claim.
reaching my conclusion that the insurer is liable on the
contract claim, I have followed a somewhat different path
from that pursued by Ms. Shepperson in her motion. I conclude
first that by its plain terms, the policy does exclude
coverage. I nevertheless also conclude that such an exclusion
is barred under Massachusetts law. Once the illegal exclusion
is excised from the policy, Ms. Shepperson is entitled to
coverage, so long as she was innocent of involvement in the
fire which caused the injury for which she seeks damages. I
find she is an innocent insured entitled to damages. The
amount of damages is not yet ripe for resolution. I will
consequently look to the parties to formulate a plan for
resolving the issues that remain outstanding following my
grant of Ms. Shepperson's motion for partial summary
judgment so as to bring this case to final judgment promptly.
Shepperson is the sole owner of the residential property
located at 47 Larchmont Road in Salem, Massachusetts
(“the premises”). She maintained a
homeowner's insurance policy (“the policy”)
with Defendant, Metropolitan Property and Casualty Insurance
Co., identified as policy number 1190421841; the policy
coverage was effective July 13, 2015 to July 13, 2016. The
policy provided coverage for the premises. Ms. Shepperson is
the sole named insured on the policy.
policy included, in relevant part, the following language:
terms of this policy impose joint obligations on all persons
defined as you. This means that the
responsibilities, acts and failures to act of a person
defined as you will be binding upon another
person defined as you.
and “your” mean:
1. the person or persons named in the Declarations and if a
resident of the same household:
A. the spouse of such person or persons;
B. the relatives of either; or
C. any other person under the age of twenty-one in the care
of any of the above . . . .
SECTION I - LOSSES WE COVER
(SPECIAL PERILS) . . .
COVERAGE A - DWELLING AND COVERAGE B - PRIVATE
STRUCTURES We will pay for sudden and accidental
direct physical loss or damage to the property described in
Coverages A and B, except as excluded in SECTION I -
LOSSES WE DO NOT COVER. COVERAGE C -
PERSONAL PROPERTY We will pay for sudden and
accidental direct physical loss or damage to the property
described in Coverage C when loss or damage is caused by
SECTION I - BROAD NAMED PERILS, except as
excluded in SECTION I - LOSSES WE DO NOT
SECTION I - LOSSES WE DO NOT COVER
We do not insure under any Section I
coverage for any loss which would not have happened in the
absence of one or more of the following excluded events. We
do not insure for any such loss regardless of:
(a) the cause of the excluded event;
(b) other causes of the loss; or
(c) whether such causes acted at the same time or in any
other sequence with the excluded event to produce or
contribute to the loss.
exclusions apply whether or not the excluded event results in
widespread damage or affects a substantial area. The excluded
events are listed below.
A. Intentional Loss, meaning any loss
arising out of any intentional or criminal act committed:
1. by you or at your
2. with the intent to cause a loss.
This exclusion applies regardless of whether
you are actually charged with or convicted
of a crime.
In the event of such loss, no one defined as
you or your is entitled to
coverage, even people defined as you or
your who did not commit or conspire to
commit the act causing the loss.
The Incident and Claim History
March 4, 2016, a fire caused significant damage to the
premises and to the personal property contained within. Ms.
Shepperson made a report of the loss to Metropolitan the next
day. Metropolitan sent Ms. Shepperson a letter on March 7,
2016, acknowledging the receipt of her claim.
March 9 and again on March 28, Metropolitan sent Ms.
Shepperson a letter informing her of “a potential
coverage problem for [her] recent claim.” Moreover, in
accordance with its rights under the policy, Metropolitan
requested that Ms. Shepperson cooperate with its
investigation into the fire, provide an examination under
oath, and produce pertinent documentation and information in
support of her claim. Her examination under oath was
conducted on April 21, 2016.
also scheduled the examination under oath of Scott
Shepperson, Ms. Shepperson's eldest son, for April 21,
2016. This scheduled examination was the subject of notice
provided in letters dated March 24, 2016 and March 31, 2016,
sent to Scott at the premises and at 3 Whipple Street in
Danvers, Massachusetts. When Scott failed to appear for his
scheduled examination under oath, Metropolitan notified Ms.
Shepperson's counsel that “Scott Shepperson
qualifie[d] as ‘you' under the policy, and as such
[wa]s obligated to cooperate with Metropolitan's
investigation and provide an examination under oath[,
]” and that until that was done Metropolitan could not
“make a final determination on the coverage available
to [Ms. Shepperson].”
Ms. Shepperson's Examination Under Oath
examination under oath, Ms. Shepperson testified that she
owned the premises and that no one else had an ownership
interest in it on the date of the fire. She said that on the
day of the fire no one other than she, Scott, and another son
Eric Shepperson, were living at the premises. She testified
that she was not at home at the time of the fire because she,
along with her daughter, Beth DiSessa, and her two
granddaughters, traveled to Holyoke, Massachusetts to visit
her brother for the night. Ms. Shepperson testified that
Scott, who was on a scheduled layoff from work at the time,
however, was home when the fire occurred.
Shepperson learned about the fire around 11:45 PM that
evening during a phone call from her neighbor. When she spoke
to Scott that night, he told her that he “accidentally
set the house on fire” and that he was “so
sorry.” Ms. Shepperson testified that Scott told her he
had noticed that the snow blower needed gasoline so he filled
the gas can, which was ordinarily kept in the garage, with
gasoline and brought it inside the house. She said Scott had
described to her that as he was walking through the house, he
smelled gas and it appeared that the gas can was leaking. Ms.
Shepperson further testified that Scott told her that
“[h]e took a cigarette out of the package, put it in