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All America Insurance Co. v. Lampasona Concrete Corp.

Appeals Court of Massachusetts, Essex

March 19, 2019

ALL AMERICA INSURANCE COMPANY
v.
LAMPASONA CONCRETE CORPORATION & others.[1]

          Heard: December 5, 2018.

         Civil action commenced in the Superior Court Department on October 9, 2015.

         The case was heard by Timothy Q. Feeley, J., on a motion for summary judgment.

          Doreen M. Zankowski for Northeast Hospital Corporation.

          Michael F. Aylward for the plaintiff.

          Present: Rubin, Milkey, & McDonough, JJ.

          MILKEY, J.

         This 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.

         In a 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.

         Standard of review.

         We 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).

         Background.

         1. Nature of dispute.

         The 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 ...


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