United States District Court, D. Massachusetts
ORDER ON MOTION FOR RECONSIDERATION (DOC. NO.
SOROKIN, UNITED STATES DISTRICT JUDGE.
January 8, 2019, the Court entered summary judgment in favor
of defendant Philadelphia Indemnity Insurance Company
(“Philadelphia”) and closed the case. Docs. No.
31, 32. Plaintiff Clarendon National Insurance Company
(“Clarendon”) now asks the Court to reconsider
its decision. Doc. No. 33. For the reasons explained briefly
below, and for the reasons stated in the Court's earlier
Order, Clarendon's motion for reconsideration is DENIED.
argues in its motion that the Court incorrectly put the
burden on Clarendon to demonstrate that the underlying loss
did not fall within an exclusion in Philadelphia's
policy. Doc. No. 33 at 3. Rather, Clarendon argues,
Philadelphia bore the burden of demonstrating that the
underlying loss did fall within that exclusion.
Id. Clarendon makes a similar argument about the
Court's determination that Philadelphia did not have a
duty to defend. It argues that, while an insurance carrier
need not investigate a claim that clearly falls outside of
its policy's coverage, the carrier must investigate a
claim that falls within the policy's basic terms but is
then covered by an exclusion, because the carrier bears the
burden of showing the application of that exclusion.
Id. As a result, in this case, Philadelphia would
have had a duty to defend. Id. at 4.
arguments mischaracterize the basis for the Court's
decision. As the Court's earlier Order explained, in an
insurance dispute such as this one, “[t]he insured has
the initial burden of proving that a loss falls within the
policy's description of covered risks, ” after
which it becomes “the insurer's burden to show the
applicability of a particular exclusion.” New Fed
Mortg. Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,
Pa., 543 F.3d 7, 11 (1st Cir. 2008). The Court found
that the underlying loss in this matter was not covered by
Philadelphia's policy because it did not occur within the
policy period. Doc. No. 31 at 6. An insurance policy's
limitation of coverage to a defined time period is not a
policy exclusion such that the burden of demonstrating its
applicability is on the insurer. Rather, a policy period is a
fundamental term of virtually any insurance policy. The
insured therefore bears the burden of demonstrating that a
covered loss occurred within the policy period.
insurance policy in this case stated clearly that coverage
would apply “only if . . . [t]he ‘bodily
injury' or ‘property damage' occurs during the
policy period; and . . . [p]rior to the policy period, no
insured . . . knew that the ‘bodily injury' or
‘property damage' had occurred, in whole or in
part.” Doc. No. 19-1 at 60. This language appears in the
very first section of the policy's description of its
coverage for bodily injury and property damage, entitled
“Insuring Agreement.” Id. Clarendon has
not advanced, either in its opposition to the motion for
summary judgment or in its motion for reconsideration, any
basis on which the Court should find that these terms
constitute an exclusion, rather than simply “the
policy's description of covered risks.” New Fed
Mortg. Corp., 543 F.3d at 11.
summary judgment, “[i]nitially, the onus falls upon the
moving party to aver an absence of evidence to support the
nonmoving party's case.” LeBlanc v. Great Am.
Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993) (internal
quotations and citations omitted). Because nothing in the
complaint in the matter underlying this one was
“reasonably susceptible of an interpretation that
states or roughly sketches a claim covered by the . . .
terms” of Philadelphia's policy, Billings v.
Commerce Ins. Co., 936 N.E.2d 408, 414 (Mass. 2010),
Philadelphia had neither a duty to defend nor to a duty to
indemnify its insured in connection with the complaint. It
therefore met its initial burden at summary judgment.
“Once the moving party satisfies [its initial]
requirement, the pendulum swings back to the nonmoving party,
who must oppose the motion by presenting facts that show that
there is a genuine issue for trial.” LeBlanc,
6 F.3d at 841. Because Clarendon did not advance disputed
facts sufficient to show a genuine issue for trial on the
issue of Philadelphia's duties to defend and indemnify,
Philadelphia was entitled to summary judgment.
foregoing reasons, and for the reasons stated in the
Court's earlier Order, Doc. No. 31, Clarendon's
motion for reconsideration, Doc. No. 33, is DENIED.
 Attached to Clarendon's motion for
reconsideration are two pages that appear to be a portion of
an insurance policy. Doc. No. 33-1 at 2-3. The parties in
this matter have previously agreed that the insurance policy
at issue appears at Doc. No. 19-1. See Doc. No. 18
¶ 1 (Philadelphia's statement of material facts,
claiming that the policy appears at Doc. No. 19-1); Doc. No.
23 ¶ 1 (Clarendon's response to Philadelphia's
statement of material facts, admitting that the policy
appears at Doc. No. 19-1). The two pages submitted with the
motion for reconsideration do not appear anywhere in the
policy at Doc. No. 19-1, though the policy does include
similar, but fundamentally different, pages. Compare,
e.g., Doc. No. 19-1 at 60, with Doc. No. 33-1
at 2. The motion for reconsideration does not advance
evidence that establishes that the pages attached thereto are
from the relevant policy, ...