Case Last Refreshed: 11 months ago
Firemen'S Insurance Co. Of Washington, Dc, Hanover Insurance Group, filed a(n) Equitable Remedies case represented by Maselek, Jr., Esq., Robert J, O'Connell, Esq., Brian A, Zelle, Esq., Anthony Robert, against Arbella Protection Insurance Company, represented by Heppner, Esq., Peter E, Lynch, Iii, Esq., Francis John, in the jurisdiction of Essex County, MA, . Essex County, MA Superior Courts .
Case Number |
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Filing DateApril 22, 2016 |
CategoryEquitable Remedies |
Last RefreshedJuly 12, 2023 |
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Filing LocationEssex County, MA |
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| Date | Type | Description | |
|---|---|---|---|
| September 11, 2017 | Docket Event | Stipulation of dismissal with Prejudice, without Costs as to Firemen's Insurance Co. Of Washington, DC, Hanover Insurance Group, Arbella Protection Insurance Company's original complaint The parties to the above-captioned matter hereby stipulate that the matter be dismissed in its entirety pursuant to M.R.C.P. 41(a)(1)(ii), with prejudice and without costs as to all claims, counterclaims and cross claims. | |
| December 09, 2016 | Docket Event | Endorsement on Motion for Partial Summary Judgment (#5.0): DENIED After hearing on December 8, 2016, the motion for partial summary judgment of the plaintiffs, Firemen's Insurance Co. of Washington, DC ("Firemen's") and Hanover Insurance Group ("Hanover"), (D.E.#5) is DENIED. The court cannot rule as a matter of law on the record before it that the defendant Arbella Protection Insurance Co. ("Arbella") has a duty to defend the insured subcontractor, ICR Drywall, Inc. ("ICR") under its policy. The mold and "your work" exclusions in its policy appear to apply to the claims made by the general contractor, Peabody Construction Co. ("Peabody") against ICR in the third party complaint (as informed by the underlying complaint by the City of Lawrence against Peabody). In considering whether an insurer has a duty to defend, the court is confined to review of the facts alleged in the complaint and facts known or readily knowable by the insurer that may aid in its interpretation of the allegations in the complaint, as well as both undisputed, readily knowable, and publicly available information in court records and undisputed intrinsic that will not be litigated at trial of the underlying action. In this case, even a broad reading of the operative pleadings does not convince the court, at least at this juncture, that the allegations therein are reasonable susceptible of an interpretation that they state or adumbrate a claim covered by the terms covered by the terms of Arbella's policy. To the contrary, given that, to come within the terms of Arbella's policy, the claim against ICR would have to be based on allegations of property damage occurring after November 24, 2009 (some eight to nine years after ICR completed its work under the subcontract) and which is both unrelated to mold and involves someone else's work, the complaint against ICR does not establish a possibility that the liability claim falls within the scope of Arbella's coverage. Stated another way, as the case law directs the court to do, when it envisages the kinds of losses that may be proved within the range of the allegations of the complaint, it does not appear to the court that any such losses fit the expectation of protective insurance reasonable generated by the terms of the policy. Even if the court were to find that Arbella has a duty to defend, it could not on the present record determine that Arbella is responsible for one third of the defense costs that have been incurred to date and one third of the costs to be incurred going forward. That record does not even include the insurance policies under which Firemen's and Hanover each undertook to defend ICR. Consequently, the court cannot ascertain whether either or both of the plaintiffs had a duty to defend under their policies or why they made the determination to defend. Nor can it determine whether any of the other insurers who provided general liability insurance to ICR in the interim between the Firemen's/Hanover policies at or near the time of construction and Arbella's policy years later have a duty to defend and thus should be responsible for a pro rata share of defense costs. The court agrees with Arbella that the motion for partial summary judgment, which was filed long before discovery has been completed in this case (and before the plaintiffs even had a copy of the insurance policy of Arbella and that they ask the court to construe) is premature, at least as to the second component of the requested declaratory relief. | |
| December 08, 2016 | Docket Event | Event Result: The following event: Rule 56 Hearing scheduled for 12/08/2016 02:00 PM has been resulted as follows: Result: Held as Scheduled | |
| December 08, 2016 | Docket Event | Attorney appearance On this date Robert J Maselek, Jr., Esq. added for Plaintiff Firemen's Insurance Co. Of Washington, DC | |
| November 18, 2016 | Docket Event | The following form was generated: Notice to Appear Sent On: 11/18/2016 08:36:57 | |
| November 10, 2016 | Docket Event | Endorsement on Motion to Sever and Stay Claims under MGL c 93A (#8.0): ALLOWED After consideration of the motion, memorandum in support and opposition by Firemen's in which Hanover joings, allowed largely for the reasons stated in the supporting memorandum. Although this is not the paradigm situation in which such motions to sever and stay are typically allowed, the policy underpinnngs still apply | |
| November 09, 2016 | Docket Event | Rule 9A list of documents filed. Applies To: Arbella Protection Insurance Company (Defendant) | |
| November 09, 2016 | Docket Event | Affidavit of compliance with Superior Court Rule 9A Applies To: Arbella Protection Insurance Company (Defendant) | |
| November 09, 2016 | Docket Event | Opposition to to Defendant Arbella Insurance Agency Motion to Sever and Stay filed by Hanover Insurance Group | |
| November 09, 2016 | Docket Event | Opposition to to Defendant Arbella Insurance Agency Motion to Sever and Stay Claims under MGL c 93A filed by Firemen's Insurance Co. Of Washington, DC, Hanover Insurance Group |
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