Opinion
No. 12–P–1123.
2013-05-1
PROVIDENCE BUILDERS, LLC v. PHILADELPHIA INDEMNITY INSURANCE COMPANY.
We agree that the plaintiff did not present evidence that showed initial damage to the roof or walls through which the rain subsequently entered and thus did not demonstrate the existence of a disputed issue of material fact. “A party seeking summary judgment may satisfy its burden of demonstrating the absence of triable issues ... by showing that the party opposing the motion has no reasonable expectation of proving an essential element of its case.” Id. at 350, 968 N.E.2d 385. The judge properly entered summary judgment for the defendant.
By the Court (KATZMANN, MEADE & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Providence Builders, LLC (plaintiff), appeals from a summary judgment in favor of Philadelphia Indemnity Insurance Company (defendant). Capital Cove, LLC (owner), hired the plaintiff to serve as the general contractor for a construction project—a ninety-six unit condominium building—at 6 Gaspee Street, Providence, Rhode Island. This action arises from two series of rainstorms that resulted in property damage to the construction project. The first storms took place on July 23–24, 2008, and the second series of storms took place on September 5–7, 2008. The plaintiff filed suit on August 18, 2010, alleging that its insurance policy with the defendant covered the resulting water damage and that the defendant had failed to reimburse the plaintiff for the cost of repair. After the motion judge granted summary judgment for the defendant, the plaintiff filed this appeal. Largely for the reasons set forth by the motion judge in his thorough memorandum of decision, we affirm. Discussion. 1. Construction of insurance policy. “When construing language in an insurance policy, we ‘consider what an objectively reasonable insured, reading the relevant policy language, would expect to be covered.’ “ Atlantic Mut. Ins. Co. v. McFadden, 413 Mass. 90, 92, 595 N.E.2d 762 (1992), quoting from Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 700, 555 N.E.2d 576 (1990). Any ambiguity in the policy must “be resolved against the insurer.” Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 83, 469 N.E.2d 797 (1984).
While the property damage took place in Rhode Island, both parties have places of business in Massachusetts and agreed to litigate this dispute in a Massachusetts State court, pursuant to Massachusetts State law.
In particular, the plaintiff argues that the motion judge erred in construing the policy's exception to the rain exclusion. While the insurance at issue generally excludes coverage for rain damage from the policy, it contains an exception which requires that “[t]he building or structure first sustain [ ] damage from any of the Covered Causes of Loss to its roof or walls through which the rain ... enters.” The motion judge interpreted the rain exclusion to mean “that the ‘covered cause of loss' (1) must damage the roof or walls before the rain enters the building or structure and (2) cannot simply be rain that infiltrates through non-damaged parts of the building's walls and roof and causes the damage.” The judge went on to explain that “[t]his is the only practical reading of the Rain Exclusion, because otherwise, the exception would ‘swallow’ the exclusion, contrary to the reasonable principles of construction and expectations of both the insurer and the insured.”
Section B, entitled, “Exclusions,” states:
“2. We will not pay for a ‘loss' caused by or resulting from any of the following: ... f. Rain, snow, sleet, or ice, whether driven by wind or not. But we will pay for ‘loss': (1) Caused by collapse of the building or structure resulting directly from the weight of rain, snow, sleet, or ice; (2) To the Covered Property within the building or structure caused by or resulting from rain, snow, sleet, or ice when: (a) The building or structure first sustains damage from any of the Covered Causes of Loss to its roof or walls through which the rain, snow, sleet, or ice enters; or (b) The ‘loss' is caused by or results from thawing of snow, sleet, or ice on the building or structure” (emphasis supplied).
We agree with the motion judge's interpretation of the insurance policy. To begin with, “[a]n interpretation which gives a reasonable meaning to all of the provisions of a contract is to be preferred to one which leaves a part useless or inexplicable.” Siegel v. Berkshire Life Ins. Co., 51 Mass.App.Ct. 744, 749, 748 N.E.2d 503 (2001), quoting from Sherman v. Employers' Liab. Assur. Corp., 343 Mass. 354, 357, 178 N.E.2d 864 (1961). As the motion judge noted, his interpretation also prevents the exception from swallowing the exclusion. See Camp Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass.App.Ct. 318, 323, 568 N.E.2d 631 (1991). Consequently, we reject the plaintiff's argument that the judge erred in construing the policy's exception to the rain exclusion.
2. Application of policy. In the summary judgment context, the plaintiff has the burden of proving the applicability of the exception to the rain exclusion, but the evidence is viewed in the light most favorable to the plaintiff. See Boazova v. Safety Ins. Co., 462 Mass. 346, 350–351, 968 N.E.2d 385 (2012). After reviewing the evidence, the motion judge found that the plaintiff failed to demonstrate that there was any dispute of material fact with respect to the exception to the rain exclusion, and had failed to meet its burden:
“None of this evidence ... shows that the Project ‘first sustain[ed] damage ... to its roof or walls through which the rain, snow, sleet, or ice enter[ed]. It is not enough to show damage to the roof or walls. [The plaintiff] has done that much. What it has not done is show that rain entered through any area of prior damage to the roof or walls.... [The plaintiff] has not submitted any evidence upon which a fact finder could conclude that [the plaintiff] has met its burden to show that an exception to the Rain Exclusion applies.”
We agree that the plaintiff did not present evidence that showed initial damage to the roof or walls through which the rain subsequently entered and thus did not demonstrate the existence of a disputed issue of material fact. “A party seeking summary judgment may satisfy its burden of demonstrating the absence of triable issues ... by showing that the party opposing the motion has no reasonable expectation of proving an essential element of its case.” Id. at 350, 968 N.E.2d 385. The judge properly entered summary judgment for the defendant.
3. Limitations period. While his ruling on the rain exclusion provision was ultimately dispositive, the motion judge also properly found that the contractual two-year limitation on filing suit barred the relatively small claim for the July 23–24, 2008, storms. The insurance policy lawfully requires an insured to commence an action against the defendant no later than two years from the date when the insured first knows of the loss or damage. See J & T Enterprises, Inc. v. Liberty Mut. Ins. Co., 384 Mass. 586, 590, 428 N.E.2d 131 (1981). The plaintiff incorrectly argues that his claim did not accrue until October, 2008, when the plaintiff paid an invoice for the damage from the July, 2008, storms. Rather, the plaintiff's claim accrued at the time that it first learned of the property damage—July, 2008. Thus, since the plaintiff did not bring this action against the defendant until August, 2010, the plaintiff failed to timely raise its claim for damages resulting from the July, 2008, rainstorms.
Judgment affirmed.