Opinion
10-P-2048
09-20-2011
CLPF -- KATAHDIN WOODS, L.P. v. RICHARD M. SYATT.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff landlord, CLPF -- Katahdin Woods, L.P. (CLPF), appeals following the entry of summary judgment in favor of the tenant defendant, Richard M. Syatt. On appeal, CLPF argues that the motion judge erred in his determination that the tenant is the landlord's coinsured for the purpose of fire insurance coverage. We affirm the judgment of the Superior Court.
Background. On September 12, 2006, the defendant leased an apartment at the Katahdin Woods apartment complex, located at 1 Katahdin Drive in Lexington. CLPF owns Katahdin Woods, a residential rental property, and at all relevant times carried an insurance policy on the property with Lexington Insurance Company (Lexington). During his tenancy, the defendant maintained a renter's insurance policy with Harleysville Insurance Company. On January 10, 2007, a fire occurred in the defendant's unit, allegedly caused by his negligent disposal of smoking material. The damage to the apartment was determined to be $108,655.66. Lexington paid CLPF for its loss, less a $25,000 deductible.
Harleysville is defending the action of behalf of the defendant.
A State police report concluded that the cause of the fire was 'accidental, careless disposal of smoking material.'
On March 9, 2009, Lexington filed a subrogation action in the name of CLPF against the defendant seeking damages arising from the fire that occurred in his unit. On January 7, 2010, the defendant filed a motion for summary judgment, arguing that on the basis of the Supreme Judicial Court's holding in Peterson v. Silva, 428 Mass. 751 (1999) (Peterson), he is a coinsured of the plaintiff, and the plaintiff accordingly may not seek damages against him. Following a hearing on the motion, the judge ruled in favor of the defendant, agreeing that under Peterson, CLPF's insurer may not seek subrogation against him. This appeal followed.
Discussion. 'The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.' Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
We agree with the motion judge that our conclusion is controlled by the court's holding in Peterson, supra. Therein, the court first noted the well-established principle that 'an insurer cannot recover by means of subrogation against its own insured.' Id. at 752, quoting from Safeco Ins. Co. v. Capri, 101 Nev. 429, 431 (1985). As in this case, Peterson involved a subrogation action following a tenant's negligently caused fire. After reviewing cases from other jurisdictions, the court concluded that unless there is an 'express provision in the lease establishing the defendants' liability for the negligently started fire,' the tenant is considered a coinsured of the landlord; '[a] lease's general language is not sufficient to create liability in the tenants.' Id. at 753. Upon consideration of the lease at issue in that case, which referred only to the tenant's insurance of personal property and indemnity of the landlord for losses resulting from negligence or improper conduct, summary judgment was granted in favor of the tenant. The court supported its conclusion by observing that '[i]t surely is not in the public interest to require all the tenants to insure the building which they share, thus causing the building to be fully insured by each tenancy,' and that such a system would be contrary to the tenant's expectation. Id. at 754.
The court also noted that '[p]rospective tenants ordinarily rely upon the owner of the dwelling to provide fire protection for the realty (as distinguished from personal property) absent an express agreement otherwise. Certainly it would not likely occur to a reasonably prudent tenant that the premises were without fire insurance protection or if there was such protection it did not inure to his benefit and that he would need to take out another fire policy to protect himself from any loss during his occupancy.' Peterson, supra at 754, quoting from Sutton v. Jondahl, 532 P.2d 478, 482 (Okla. Ct. App. 1975).
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Thus, the outcome of the present dispute turns on the relevant provisions of the parties' lease. It provides as follows:
'[Paragraph] 5. COMMON AREAS/AMENITIES CHARGE: . . . Residents agree to be solely liable for any personal injury or property damage caused by Resident or his/her guests. Resident agrees that he/she will indemnify, defend and hold the Owner harmless from any claim for personal injury or, property damage brought by Resident or his her guests.'
'[Paragraph] 18. CONDITION OF THE APARTMENT: . . . [T]he Resident must pay the full cost of all repairs, replacements and damages caused by the act or neglect of the Resident . . . . In the event that your apartment, or the building in which it is located, is damaged or destroyed by fire or other casualty . . . you may immediately vacate the Premises . . . . If you do so, then this Lease will terminate as of the day you vacated and your obligation to pay Rent will cease as of the date of the casualty. You will be liable only for Rent (in those situations where you . . . were not responsible for the damage or destruction) up to the date of such damage or destruction.'
'[Paragraph] 24. OWNER/MANAGER LIABILITY REQUIREMENT TO PURCHASE RENTER'S INSURANCE: . . . You agree to indemnify (reimburse if necessary), defend and hold Owner and Manager harmless against all claims for damages to the property or persons arising from your use of the Premises . . . . During the term of your Apartment Lease Agreement, you agree to purchase and maintain, at your sole cost and expense, a comprehensive personal liability policy or its equivalent, issued by a licensed insurance company that you select which provides limits of liability of at least $100,000 per occurrence.'
'[Paragraph] 44. RESPONSIBILITY FOR GUESTS: . . . Resident shall be liable to Owner for damage caused by Resident, the other occupants and Resident(s) guests or invitees.'
'[Paragraph] 45. REIMBURSEMENT FOR DAMAGE: Resident must promptly reimburse Owner for loss, damage, or cost or repairs or service caused anywhere in the apartment or Apartment Community by Resident, the other occupants or Resident(s) guests or invitees improper use or negligence. Owner may require payment at any time, including advance payment, for repairs for which Resident is liable. Any delay in Owner(s) demanding reimbursement is not a waiver of such right.'
As in Peterson, the lease at issue here contains only general language about liability and negligence; there is no express provision allocating liability for a negligently caused fire. Although CLPF points to the provisions of paragraph 45, again there is no specific mention of fire in that paragraph, as required by Peterson. As such, we conclude, as we must, that summary judgment was properly granted in favor of the defendant.
Judgment affirmed.
By the Court (Mills, Smith & Wolohojian, JJ.),