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4az0is ss /6
COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE, ss. SUPERIOR COURT
CIVIL ACTION
No. HSCV2012-00013
FLORENCE CAFE CORPORATION d/b/a
SILK CITY TAP ROOM
ys.
WEBBER AND GRINNELL INSURANCE
' AGENCY, INC.
MEMORANDUM OF DECISION AND ORDER
ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Florence Café Corporation d/b/a Silk City Tap Room (“Silk City”), filed its
Amended Complaint against Defendant, Webber and Grinnell Insurance Agency, Inc.
(“Webber”), dated March 16, 2012, asserting three counts against Webber. Count I states a
claim for negligence in failing to recommend or procure insurance coverage which would
provide coverage for a wrongful death suit brought against Silk City. Count II states a claim for
breach of contract, based on failure to offer coverage for claims arising out of assault and battery
and/or the service of alcoholic beverages. Count III states a Chapter 93A claim for misstating to
Silk City that it had no coverage under its general liability policy for claims arising from assault
and battery, that such coverage was unavailable, and that Webber falsely represented itself to
Silk City and to the general public as having superior insurance knowledge and expertise in
business insurance, including excess liability insurance, which it did not have.
Silk City claims damages comprising legal expenses in the amount of $50,553.25 which
it alleges it incurred as of December 10, 2012, as a direct result of Webber’s negligence in order
to protect it from a potentially catastrophic uninsured loss in connection with the underlyingwrongful death action. Silk City further alleges it incurred approximately $19,138.85 in
additional legal expenses during the period December 10, 2012 through May 27, 2015 when the
wrongful death case was settled, in order to protect its interests as a result of defendant’s
purported negligence.
Before the court is Webber’s motion for summary judgment. Webber argues that Silk
City cannot prove its claim that Webber caused it to be without liability insurance for the
underlying wrongful death claim or that it sustained any compensable damages because of
Webber’s purported breach of duty. Silk City maintains that but for Webber’s negligence in
procuring insurance, it would have had a general liability policy that covered the underlying
wrongful death claim. Silk City further maintains that when the liquor liability insurer, Liberty
Surplus Insurance Company (“Liberty”), initially declined coverage, it incurred legal expenses to
protect it from uninsured financial exposure. For the reasons stated below, Webber’s motion
for summary judgment is ALLOWED in part and DENIED in part.
IL BACKGROUND
The undisputed material facts are summarized below:
At all times material hereto, Silk City was a bar located in Florence. Konstantinos
Sierros and his wife, Sunita Sierros, owned and operated Silk City as Principals. Beginning in
2004, Silk City engaged the services of Webber and Grinnell Insurance Agency, Inc. (“Webber”)
to procure insurance coverage for its business. Among other coverages, Silk City obtained a
liquor liability policy from Liberty Surplus Insurance Group (“Liberty”) and a commercial
general liability policy from Great American Insurance Company (“Great American”), through
Webber for policy period encompassing January 3, 2009.On January 3, 2009, John Connell, a Silk City patron, was served alcoholic beverages at
Silk City and was then involved in an altercation. He suffered fatal injuries. Mr. Connell was
visibly intoxicated on the night of the incident.
On behalf of Silk City, Ms. Sierros immediately reported the incident to Nancy Horan, of
Webber, in order for Webber, in turn, to notify Liberty and General American. During their
conversation, Ms. Horan stated to Ms. Sierros that there was no assault and battery coverage on
the general liability policy and that there was assault and battery coverage on the liquor liability
policy’.
On January 8, 2009, Liberty acknowledged notice of the claim, and reserved its rights.
On January 29, 2009, Great American declined coverage under its comprehensive general
liability policy for any claims arising out of the incident. Great American relied on the policy’s
assault and battery exclusion in declining coverage.
On or about January 28, 2009, Great American Insurance sent a letter to Silk City and its
counsel acknowledging receipt of the notice of claim and declining coverage under its General
Liability policy on the grounds that the policy excluded any claims relating to the furnishing of
alcoholic beverages and any claims arising out of an assault and/or battery. Silk City’s coverage
counsel, William Rose, responded to Great American Insurance on Silk City’s behalf by letters
dated February 4, 2009 and September 24, 2010
In September 2010, counsel for the Connell Estate sent a letter of representation to Silk
City asserting that Mr. Connell’s death was caused by the bar’s negligence. Attorney Rose,
forwarded the letter to Liberty.
' In a separate conversation between Mr. Sierros and Bill Grinnell, of Webber, shortly after the January 3, 2009
incident, Mr. Sierros assumed that Mr. Grinnell was referring to Silk City’s general liability policy when Mr.
Grinnell stated there was no assault and battery coverage.
3On October 8, 2010, Liberty responded by disclaiming any duty to defend or indemnify
Silk City, asserting that the claim letter failed to specifically assert that the injury arose from the
selling or serving of alcoholic beverages. Mr. Rose challenged the disclaimer, asserting it was
invalid and, if maintained, would constitute a breach by Liberty of its obligations under its
policy.
On or about December 18, 2011, Mr. Connell’s estate brought a wrongful death action
against Silk City and others. The Connell Estate alleged that Silk City “served the decedent John
Connell alcoholic beverages to excess thereby causing and allowing him to become intoxicated.”
The Estate further asserted that “[t]he bartenders, bouncers and doormen knew that decedent
John Connell was intoxicated and acting in an unruly manner. However, they continued to serve
him alcohol, allowed him to remain in the bar and allowed him to continue to interact with
[James] Duffy as well as other patrons and bar staff.” The complaint alleged that Silk City was
“negligent in failing to properly train and supervise bar staff, failing to defuse a volatile situation,
failing to summon law enforcement and failing to provide proper security in a safe environment
for their patron, decedent, John Connell.” The complaint alleged that, at closing time, Mr.
Connell then had a further altercation with Mr. Duffy outside the bar. During this altercation,
Mr. Connell fell from the stairs to the pavement below and struck his head, suffering fatal head
injuries. Mr. Connell reportedly had a blood alcohol level of at least .29 at the time of his death.
Mr. Rose forwarded a copy of the underlying complaint to Liberty with a letter
requesting a defense and indemnification. Liberty received the letter on January 12, 2012, and
replied on February 8, 2012, advising Mr. Rose that Liberty “will provide a defense to Silk City
Café Corporation d/b/a Silk City Tap Room in this matter, subject to a reservation of rights,
which will follow shortly.”Liberty’s liquor liability policy provided for defense and indemnification benefits to Silk
City for the underlying wrongful death claim subject to the limitations and exclusion set forth in
Liberty’s reservation of rights letter to Silk City.
Silk City acknowledges that the Liberty policy responded to the underlying litigation.
Neither Silk City nor its principals paid any amount towards Silk City’s defense of the claims in
the underlying lawsuit. Liberty assumed and paid all of Silk City’s defense costs in the
underlying case.
At deposition on January 22, 2013, Liberty acknowledged that its pre-suit decision to
disclaim coverage was ill-advised. Liberty’s 30(b)(6) deposition witness, Norma Ovalle,
testified that because the incident took place at a bar, the claim implicitly involved the service of
alcohol, which in turn triggered the Liberty policy. Ms. Ovalle suggested that the better course
of action for Liberty to have taken at that time would be to reserve rights and conduct an
investigation.
Following Ms. Ovalle’s deposition, counsel for Silk City wrote to Liberty requesting that,
with the exception of punitive damages, it would agree to indemnify Silk City without
reservation. Liberty responded that it maintained its right to disclaim coverage.
The underlying death case was settled following mediation in May, 2015. The settlement
was paid by Liberty and others. Silk City did not contribute any funds to the settlement. The
underlying wrongful death action was dismissed with prejudice.
Silk City claims the following disputed damages:
As of December 10, 2012, Silk City incurred legal expenses exceeding $50,000 as a
direct result of Webber’s negligence in order to protect it from a potentially uninsured loss in
connection with the incident. These expenses were as follows:Tucker, Heifetz and Saltzman $10,817.20
Alan Sharpe, Esq. 13,230.00
Law Offices of Keith A. Minoff, P.C. 26,506.05
$50,553.25
Silk City seeks approximately $19,138.85 in additional legal expenses, including
$15,347.00 in fees and $3791.85 in disbursements, from December 10, 2012 through May 27,
2015, when the wrongful death case was finally settled, in order to protect its interests as a result
of Webber’s purported negligence.
I. DISCUSSION
Summary judgment is appropriate when the material facts are undisputed and “the
moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56 (c); Godfrey v.
Globe Newspaper Co., Inc., 457 Mass. 113, 118-119 (2010). To be successful, the moving party
must either submit affirmative evidence that negates one or more elements of the other party’s
claim or demonstrates that the opposing party has no reasonable expectation of proving an
essential element of its case. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
(1991). The opposing party cannot defeat the motion simply by resting on the pleadings and
mere assertions based on disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). “Any
doubts as to the existence of a genuine issue of material fact are to be resolved against the party
moving for summary judgment.” Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6
(2008). “[T]he judge must consider the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,” but “may not consider the credibility of a
witness or the weight of the evidence.” McGuinness v. Cotter, 412 Mass. 617, 620, 628 (1992).
“[C]onclusory statements, general denials, and factual allegations not based on personal
knowledge are insufficient to avoid summary judgment.” O’Rourke v. Hunter, 446 Mass. 814,
821 (2006).Summary judgment is rarely appropriate in deciding negligence actions, because the
question of negligence is usually a determination for the jury. Manning v. Nobile, 411 Mass.
382, 388 (1991). This rule, however, is not absolute. Jd. In Aholm v. Wareham, the Supreme
Judicial Court explained that by bringing their actions, the plaintiffs assumed the obligation to
show that the negligence of the defendant caused the injury. This was an affirmative burden and
could not be left to surmise, conjecture, or imagination. There must be something amounting to
proof, either by direct evidence or rational inference of probabilities from established facts.
While the plaintiff is not bound to exclude every other possibility of cause of his injury except
that of the negligence of the defendant, he is required to show by evidence a greater likelihood
that it came from and act of negligence for which the defendant is responsible than from a cause
for which the defendant is not liable. If on all the evidence it is just as reasonable to suppose that
the cause is on for which no liability would attach to the defendant as for which the defendant is
liable, then a plaintiff fails to make out his case. Alholm v. Town of Wareham, 371 Mass. 621,
626-27 (1976).
The facts of the within matter require separate analyses as to the circumstances entailing
the Great American policy and those surrounding the Liberty policy. In this regard, Webber’s
focus on the defense and indemnity coverage Liberty ultimately provided is misplaced when
viewed in the context of the outright denial of Great American’s coverage. The fact that Liberty
ultimately provided defense and indemnification does not dispose of Silk City’s claims relating
to Webber’s purported failure to insure that Silk City was provided with a general liability policy
that did not contain an assault and battery exclusion.
There remain genuine issues of material fact as to whether but for Webber’s actions in
procuring insurance, Silk City would have a general liability policy that did not contain anassault and battery exclusion and, hence, provided coverage for claims arising out of the
underlying wrongful death action. Accordingly, Silk City’s claims for negligence, breach of
contract and violations of G. L. c. 93A, insofar as those claims relate to the Great American
policy, may not be disposed of by summary judgment.
On the other hand, it is undisputed that the Liberty policy provided assault and battery
coverage, and that Liberty provided defense and indemnity benefits for the underlying wrongful
death action. Silk City made no contribution to the defense of the underlying wrongful death
action and the underlying wrongful death action was dismissed with prejudice. I am satisfied
that Webber put Silk City on notice that the Liberty policy provided assault and battery coverage
during Ms. Sierro’s conversation with Ms. Horan very shortly after the incident. Further, Liberty
immediately took notice of Silk City’s claim with a reservation of rights.
There is no genuine issue of material fact as to whether Webber was in breach of any
duty or contract to provide the appropriate coverage under the Liberty policy. Webber
committed no error or omission in its providing the Liberty policy to Silk City. The fact that
Liberty exercised a reservation of rights, defended the underlying wrongful death action, denied
indemnity coverage for a period of time and, ultimately, retracted its denial of coverage has
nothing to do with Webber. Nor do Liberty’s actions negate the fact that Webber fulfilled its
duty to Silk City to provide appropriate coverage under the Liberty policy. No summary
judgment evidence has been produced to support Silk City’s claim that Liberty’s actions were
either foreseeable to Webber or that there was a causal link between Webber’s actions and
Liberty’s actions. Stated yet another way, Webber is not the real party in interest in any claim
for damages Silk City may assert for unfair claims practices occasioned by Liberty’s actions.The applicable measure of damages attendant Silk City’s claim as it relates to the Great
American policy is identified as the benefits of the insurance coverage which would have been in
effect but for Webber’s breach of duty. See Capital Site Management Associates v. Inland
Underwriters Ins. Agency, Ltd., 61 Mass. App. Ct. 14, 19 (2004) citing Rae v. Air-Speed, Inc.,
386, 187, 196 (1982). In relation to the Great American policy, there remains a genuine issue of
material fact as to whether the legal expenses Silk City claims relating to the Great American
policy were “necessary to ameliorate the harm that would not have occurred but for the
defendant’s negligence.” Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 411
(2003).
Whereas there is no question of material fact as to whether Webber bears any liability in
relation to the Liberty policy, however, any legal expenses associated with coverage issues
pertaining to Liberty are not compensable. In light of my findings, Silk City may not boot strap
its legal expenses associated with pursuing coverage from Liberty to its claim for damages
relating to the Great American policy.
Il. ORDER
Whereas there remain genuine issues of material fact as to whether Webber’s actions
constituted negligence, breach of contract and violations of G. L. c. 93A, §§ 9, 11 in relation to
the Great American policy, the Motion for Summary Judgment by Defendant, Webber and
Grinnell Insurance Agency, Inc, is DENIED.Whereas there remain no genuine issues of material fact as to whether Webber’s actions
constituted negligence and breach of contract in relation to the Liberty policy, the Motion for
Summary Judgment by Defendant, Webber and Grinnell Insurance Agency, Inc, is ALLOWED.
MARK D MASON”
Justice of the Superior Court
DATE: February 1, 2017
10
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4az0is ss /6 COMMONWEALTH OF MASSACHUSETTS HAMPSHIRE, ss. SUPERIOR COURT CIVIL ACTION No. HSCV2012-00013 FLORENCE CAFE CORPORATION d/b/a SILK CITY TAP ROOM ys. WEBBER AND GRINNELL INSURANCE ' AGENCY, INC. MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Plaintiff, Florence Café Corporation d/b/a Silk City Tap Room (“Silk City”), filed its Amended Complaint against Defendant, Webber and Grinnell Insurance Agency, Inc. (“Webber”), dated March 16, 2012, asserting three counts against Webber. Count I states a claim for negligence in failing to recommend or procure insurance coverage which would provide coverage for a wrongful death suit brought against Silk City. Count II states a claim for breach of contract, based on failure to offer coverage for claims arising out of assault and battery and/or the service of alcoholic beverages. Count III states a Chapter 93A claim for misstating to Silk City that it had no coverage under its general liability policy for claims arising from assault and battery, that such coverage was unavailable, and that Webber falsely represented itself to Silk City and to the general public as having superior insurance knowledge and expertise in business insurance, including excess liability insurance, which it did not have. Silk City claims damages comprising legal expenses in the amount of $50,553.25 which it alleges it incurred as of December 10, 2012, as a direct result of Webber’s negligence in order to protect it from a potentially catastrophic uninsured loss in connection with the underlyingwrongful death action. Silk City further alleges it incurred approximately $19,138.85 in additional legal expenses during the period December 10, 2012 through May 27, 2015 when the wrongful death case was settled, in order to protect its interests as a result of defendant’s purported negligence. Before the court is Webber’s motion for summary judgment. Webber argues that Silk City cannot prove its claim that Webber caused it to be without liability insurance for the underlying wrongful death claim or that it sustained any compensable damages because of Webber’s purported breach of duty. Silk City maintains that but for Webber’s negligence in procuring insurance, it would have had a general liability policy that covered the underlying wrongful death claim. Silk City further maintains that when the liquor liability insurer, Liberty Surplus Insurance Company (“Liberty”), initially declined coverage, it incurred legal expenses to protect it from uninsured financial exposure. For the reasons stated below, Webber’s motion for summary judgment is ALLOWED in part and DENIED in part. IL BACKGROUND The undisputed material facts are summarized below: At all times material hereto, Silk City was a bar located in Florence. Konstantinos Sierros and his wife, Sunita Sierros, owned and operated Silk City as Principals. Beginning in 2004, Silk City engaged the services of Webber and Grinnell Insurance Agency, Inc. (“Webber”) to procure insurance coverage for its business. Among other coverages, Silk City obtained a liquor liability policy from Liberty Surplus Insurance Group (“Liberty”) and a commercial general liability policy from Great American Insurance Company (“Great American”), through Webber for policy period encompassing January 3, 2009.On January 3, 2009, John Connell, a Silk City patron, was served alcoholic beverages at Silk City and was then involved in an altercation. He suffered fatal injuries. Mr. Connell was visibly intoxicated on the night of the incident. On behalf of Silk City, Ms. Sierros immediately reported the incident to Nancy Horan, of Webber, in order for Webber, in turn, to notify Liberty and General American. During their conversation, Ms. Horan stated to Ms. Sierros that there was no assault and battery coverage on the general liability policy and that there was assault and battery coverage on the liquor liability policy’. On January 8, 2009, Liberty acknowledged notice of the claim, and reserved its rights. On January 29, 2009, Great American declined coverage under its comprehensive general liability policy for any claims arising out of the incident. Great American relied on the policy’s assault and battery exclusion in declining coverage. On or about January 28, 2009, Great American Insurance sent a letter to Silk City and its counsel acknowledging receipt of the notice of claim and declining coverage under its General Liability policy on the grounds that the policy excluded any claims relating to the furnishing of alcoholic beverages and any claims arising out of an assault and/or battery. Silk City’s coverage counsel, William Rose, responded to Great American Insurance on Silk City’s behalf by letters dated February 4, 2009 and September 24, 2010 In September 2010, counsel for the Connell Estate sent a letter of representation to Silk City asserting that Mr. Connell’s death was caused by the bar’s negligence. Attorney Rose, forwarded the letter to Liberty. ' In a separate conversation between Mr. Sierros and Bill Grinnell, of Webber, shortly after the January 3, 2009 incident, Mr. Sierros assumed that Mr. Grinnell was referring to Silk City’s general liability policy when Mr. Grinnell stated there was no assault and battery coverage. 3On October 8, 2010, Liberty responded by disclaiming any duty to defend or indemnify Silk City, asserting that the claim letter failed to specifically assert that the injury arose from the selling or serving of alcoholic beverages. Mr. Rose challenged the disclaimer, asserting it was invalid and, if maintained, would constitute a breach by Liberty of its obligations under its policy. On or about December 18, 2011, Mr. Connell’s estate brought a wrongful death action against Silk City and others. The Connell Estate alleged that Silk City “served the decedent John Connell alcoholic beverages to excess thereby causing and allowing him to become intoxicated.” The Estate further asserted that “[t]he bartenders, bouncers and doormen knew that decedent John Connell was intoxicated and acting in an unruly manner. However, they continued to serve him alcohol, allowed him to remain in the bar and allowed him to continue to interact with [James] Duffy as well as other patrons and bar staff.” The complaint alleged that Silk City was “negligent in failing to properly train and supervise bar staff, failing to defuse a volatile situation, failing to summon law enforcement and failing to provide proper security in a safe environment for their patron, decedent, John Connell.” The complaint alleged that, at closing time, Mr. Connell then had a further altercation with Mr. Duffy outside the bar. During this altercation, Mr. Connell fell from the stairs to the pavement below and struck his head, suffering fatal head injuries. Mr. Connell reportedly had a blood alcohol level of at least .29 at the time of his death. Mr. Rose forwarded a copy of the underlying complaint to Liberty with a letter requesting a defense and indemnification. Liberty received the letter on January 12, 2012, and replied on February 8, 2012, advising Mr. Rose that Liberty “will provide a defense to Silk City Café Corporation d/b/a Silk City Tap Room in this matter, subject to a reservation of rights, which will follow shortly.”Liberty’s liquor liability policy provided for defense and indemnification benefits to Silk City for the underlying wrongful death claim subject to the limitations and exclusion set forth in Liberty’s reservation of rights letter to Silk City. Silk City acknowledges that the Liberty policy responded to the underlying litigation. Neither Silk City nor its principals paid any amount towards Silk City’s defense of the claims in the underlying lawsuit. Liberty assumed and paid all of Silk City’s defense costs in the underlying case. At deposition on January 22, 2013, Liberty acknowledged that its pre-suit decision to disclaim coverage was ill-advised. Liberty’s 30(b)(6) deposition witness, Norma Ovalle, testified that because the incident took place at a bar, the claim implicitly involved the service of alcohol, which in turn triggered the Liberty policy. Ms. Ovalle suggested that the better course of action for Liberty to have taken at that time would be to reserve rights and conduct an investigation. Following Ms. Ovalle’s deposition, counsel for Silk City wrote to Liberty requesting that, with the exception of punitive damages, it would agree to indemnify Silk City without reservation. Liberty responded that it maintained its right to disclaim coverage. The underlying death case was settled following mediation in May, 2015. The settlement was paid by Liberty and others. Silk City did not contribute any funds to the settlement. The underlying wrongful death action was dismissed with prejudice. Silk City claims the following disputed damages: As of December 10, 2012, Silk City incurred legal expenses exceeding $50,000 as a direct result of Webber’s negligence in order to protect it from a potentially uninsured loss in connection with the incident. These expenses were as follows:Tucker, Heifetz and Saltzman $10,817.20 Alan Sharpe, Esq. 13,230.00 Law Offices of Keith A. Minoff, P.C. 26,506.05 $50,553.25 Silk City seeks approximately $19,138.85 in additional legal expenses, including $15,347.00 in fees and $3791.85 in disbursements, from December 10, 2012 through May 27, 2015, when the wrongful death case was finally settled, in order to protect its interests as a result of Webber’s purported negligence. I. DISCUSSION Summary judgment is appropriate when the material facts are undisputed and “the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56 (c); Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 118-119 (2010). To be successful, the moving party must either submit affirmative evidence that negates one or more elements of the other party’s claim or demonstrates that the opposing party has no reasonable expectation of proving an essential element of its case. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The opposing party cannot defeat the motion simply by resting on the pleadings and mere assertions based on disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). “Any doubts as to the existence of a genuine issue of material fact are to be resolved against the party moving for summary judgment.” Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6 (2008). “[T]he judge must consider the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” but “may not consider the credibility of a witness or the weight of the evidence.” McGuinness v. Cotter, 412 Mass. 617, 620, 628 (1992). “[C]onclusory statements, general denials, and factual allegations not based on personal knowledge are insufficient to avoid summary judgment.” O’Rourke v. Hunter, 446 Mass. 814, 821 (2006).Summary judgment is rarely appropriate in deciding negligence actions, because the question of negligence is usually a determination for the jury. Manning v. Nobile, 411 Mass. 382, 388 (1991). This rule, however, is not absolute. Jd. In Aholm v. Wareham, the Supreme Judicial Court explained that by bringing their actions, the plaintiffs assumed the obligation to show that the negligence of the defendant caused the injury. This was an affirmative burden and could not be left to surmise, conjecture, or imagination. There must be something amounting to proof, either by direct evidence or rational inference of probabilities from established facts. While the plaintiff is not bound to exclude every other possibility of cause of his injury except that of the negligence of the defendant, he is required to show by evidence a greater likelihood that it came from and act of negligence for which the defendant is responsible than from a cause for which the defendant is not liable. If on all the evidence it is just as reasonable to suppose that the cause is on for which no liability would attach to the defendant as for which the defendant is liable, then a plaintiff fails to make out his case. Alholm v. Town of Wareham, 371 Mass. 621, 626-27 (1976). The facts of the within matter require separate analyses as to the circumstances entailing the Great American policy and those surrounding the Liberty policy. In this regard, Webber’s focus on the defense and indemnity coverage Liberty ultimately provided is misplaced when viewed in the context of the outright denial of Great American’s coverage. The fact that Liberty ultimately provided defense and indemnification does not dispose of Silk City’s claims relating to Webber’s purported failure to insure that Silk City was provided with a general liability policy that did not contain an assault and battery exclusion. There remain genuine issues of material fact as to whether but for Webber’s actions in procuring insurance, Silk City would have a general liability policy that did not contain anassault and battery exclusion and, hence, provided coverage for claims arising out of the underlying wrongful death action. Accordingly, Silk City’s claims for negligence, breach of contract and violations of G. L. c. 93A, insofar as those claims relate to the Great American policy, may not be disposed of by summary judgment. On the other hand, it is undisputed that the Liberty policy provided assault and battery coverage, and that Liberty provided defense and indemnity benefits for the underlying wrongful death action. Silk City made no contribution to the defense of the underlying wrongful death action and the underlying wrongful death action was dismissed with prejudice. I am satisfied that Webber put Silk City on notice that the Liberty policy provided assault and battery coverage during Ms. Sierro’s conversation with Ms. Horan very shortly after the incident. Further, Liberty immediately took notice of Silk City’s claim with a reservation of rights. There is no genuine issue of material fact as to whether Webber was in breach of any duty or contract to provide the appropriate coverage under the Liberty policy. Webber committed no error or omission in its providing the Liberty policy to Silk City. The fact that Liberty exercised a reservation of rights, defended the underlying wrongful death action, denied indemnity coverage for a period of time and, ultimately, retracted its denial of coverage has nothing to do with Webber. Nor do Liberty’s actions negate the fact that Webber fulfilled its duty to Silk City to provide appropriate coverage under the Liberty policy. No summary judgment evidence has been produced to support Silk City’s claim that Liberty’s actions were either foreseeable to Webber or that there was a causal link between Webber’s actions and Liberty’s actions. Stated yet another way, Webber is not the real party in interest in any claim for damages Silk City may assert for unfair claims practices occasioned by Liberty’s actions.The applicable measure of damages attendant Silk City’s claim as it relates to the Great American policy is identified as the benefits of the insurance coverage which would have been in effect but for Webber’s breach of duty. See Capital Site Management Associates v. Inland Underwriters Ins. Agency, Ltd., 61 Mass. App. Ct. 14, 19 (2004) citing Rae v. Air-Speed, Inc., 386, 187, 196 (1982). In relation to the Great American policy, there remains a genuine issue of material fact as to whether the legal expenses Silk City claims relating to the Great American policy were “necessary to ameliorate the harm that would not have occurred but for the defendant’s negligence.” Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 411 (2003). Whereas there is no question of material fact as to whether Webber bears any liability in relation to the Liberty policy, however, any legal expenses associated with coverage issues pertaining to Liberty are not compensable. In light of my findings, Silk City may not boot strap its legal expenses associated with pursuing coverage from Liberty to its claim for damages relating to the Great American policy. Il. ORDER Whereas there remain genuine issues of material fact as to whether Webber’s actions constituted negligence, breach of contract and violations of G. L. c. 93A, §§ 9, 11 in relation to the Great American policy, the Motion for Summary Judgment by Defendant, Webber and Grinnell Insurance Agency, Inc, is DENIED.Whereas there remain no genuine issues of material fact as to whether Webber’s actions constituted negligence and breach of contract in relation to the Liberty policy, the Motion for Summary Judgment by Defendant, Webber and Grinnell Insurance Agency, Inc, is ALLOWED. MARK D MASON” Justice of the Superior Court DATE: February 1, 2017 10