December 5, 2018.
action commenced in the Superior Court Department on October
case was heard by Timothy Q. Feeley, J., on a motion for
M. Zankowski for Northeast Hospital Corporation.
Michael F. Aylward for the plaintiff.
Present: Rubin, Milkey, & McDonough, JJ.
case arises out of the construction of Beverly Hospital
(hospital), which is owned by Northeast Hospital Corporation
(NHC). Following construction of the hospital, NHC filed a
complaint in Superior Court against the general contractor,
Dacon Corporation (Dacon), alleging property damage to the
finished first floor and other areas of the hospital. In that
action, Dacon filed a third-party complaint seeking
indemnification from various subcontractors, including
Lampasona Concrete Corporation (Lampasona), for improper
installation of the concrete slab that lies underneath the
finished first floor.
separate action that resulted in this appeal, Lampasona's
insurer, All America Insurance Company (All America), filed a
complaint against the defendants seeking a judgment declaring
that it has no duty to defend or indemnify Lampasona under
the comprehensive general liability (CGL) policy that
Lampasona had purchased. On review of All America's
motion for summary judgment, a Superior Court judge concluded
that Lampasona's work on the concrete slab was
inseparable from work that other subcontractors performed on
other layers of the flooring system. On that basis, the judge
determined that an exclusion to the CGL policy applied, and
he allowed summary judgment in All America's favor. For
the reasons that follow, we vacate the judgment and remand
for further proceedings.
review the allowance of a motion for summary judgment de novo
without deference to the motion judge's reasoning.
See Miller v. Cotter, 448 Mass. 671, 676
(2007). In our review, we construe all facts "in the
light most favorable to the nonmoving party."
Drakopoulos v. United States Bank Nat'1
Ass'n, 465 Mass. 775, 777 (2013).
Nature of dispute.
first floor of the hospital has at least three layers: a
bottom vapor barrier, the concrete slab, and a top layer of
either tile or carpet. While Lampasona installed the concrete
slab, different subcontractors installed the other two
layers. In the action that NHC brought against Dacon, NHC
alleges that Lampasona made multiple errors in installing the
concrete slab. These errors included puncturing the vapor
barrier, which allowed moisture to pass through into the
concrete slab, and improperly mixing fiber reinforcement into
the concrete, which ...