Opinion
MICV2012-00040-F
03-30-2014
Dorothy H. Smith et al. v. Walgreen Eastern Co., Inc. et al
Filed Date March 31, 2014
MEMORANDUM OF DECISION AND ORDER
DENNIS J. CURRAN, Associate Justice.
The original complaint in this matter involved a personal injury matter between the plaintiffs Smith as against Walgreen's and Roche Bros. Part or all of those claims appear to have settled; so too, have all third-party claims against NGM Insurance (see paper no. 40), as well as NGM Insurance Co.'s cross claims against Bruno Perdoni. What remains for present disposition is the dispute between the third-party plaintiffs Roche Bros. against the third-party defendant WIC Insurance Co., Inc. as to whether the defendant WIC Insurance Company breached its duty in failing to convey to NGM Mutual that Roche Bros. was to be an additional insured under their contractor's general liability policy. WIC has moved for summary judgment.
BACKGROUND
The following facts are considered in the light most favorable to Roche Bros. as the nonmoving party. Foster v. Group Health Inc. , 444 Mass. 668, 672, 830 N.E.2d 1061 (2005).
By about November 2006, Roche Bros. and Bruno Perdoni, d/b/a Perdoni Construction, entered into a written contract where Perdoni agreed to clear winter debris from the Roche Bros. Plaza in Natick, Massachusetts. At the time of the contract, Perdoni had a general liability insurance policy with NGM through Perdoni's insurance agent, WIC Insurance, Inc.
The parties dispute whether the written contract between Perdoni and Roche Bros. represented the entire agreement between them. Roche Bros. claims that there was an oral agreement between them by which Perdoni agreed to provide a copy of his Certificate of Insurance to Roche Bros., designate Roche Bros. as a " Certificate Holder" on that document, and place Roche Bros. as an additional insured on its general liability policy of insurance. Roche Bros. claims that such stipulations were in line with its contractors' policy in force at this time. WIC claims that the written contract expressed the entirety of the agreement.
The parties dispute whether Perdoni alerted WIC to these additional oral stipulations. Roche Bros. claims that Perdoni alerted Gail Prescott, its account executive at WIC, of the additional requirements. It further claims that Perdoni gave Roche Bros. a copy of its Certificate of Insurance at this time. WIC denies that these events ever occurred. Perdoni's insurer, NGM, allows the inclusion of additional insureds if there is a written contract with such a stipulation or when the additional insured has a written contract, and the policy is endorsed with the additional insured named.
On February 1, 2009, Dorothy Smith allegedly slipped on ice and snow as she walked in front of the Walgreen's store at the Roche Bros. Plaza in Natick, Massachusetts. At this time, the contract between Roche Bros. and Perdoni was still in force. Ms. Smith sued Walgreen Eastern Co., Inc. and Roche Bros. on December 5, 2012. A few days later, on December 12, 2012, Roche Bros. asked Ms. Prescott for a copy of a Certificate of Insurance for policies in effect in 2008-2009 to check its coverage for the date of the accident. Ms. Prescott told Roche Bros. that no such records existed electronically and prepared a new Certificate of Insurance. When it received the document, Roche Bros. was apparently satisfied that the document listed them as " Certificate Holders" and " additional insured per contract, " but failed to inquire further as to their insurance status on the date of Mrs. Smith's fall.
DISCUSSION
SUMMARY JUDGMENT STANDARD
A court grants summary judgment when there are no genuine issues of material fact. See Mass.R.Civ.P. 56(c). The burden is on the moving party to demonstrate the absence of a triable issue and that it is entitled to judgment as a matter of law. Id. ; Madsen v. Erwin , 395 Mass. 715, 719, 481 N.E.2d 1160 (1985). Where the burden of proof at trial rests with the non-moving party, the moving party may satisfy its summary judgment burden by either presenting " affirmative evidence negating an essential element" of the non-moving party's case or " by demonstrating that proof of that element is unlikely to be forthcoming at trial." Flesner v. Technical Commc'ns Corp. , 410 Mass. 805, 809, 575 N.E.2d 1107 (1991).
" Where a moving party properly asserts that there is no genuine issue of material fact, 'the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.' " Id. , quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All of the evidence must be viewed in the light most favorable to the non-moving party. Foster , 444 Mass. at 672.
TIMELINESS OF THE MOTION
Admittedly, WIC's motion is untimely; but consistent with the judicial mission stated in both Mass.R.Civ.P. 1 and Superior Court Third Amended Standing Order 1-88 to " secure the just, speedy, and inexpensive determination of every action, " we address the motion.
WIC'S ALLEGED BREACH OF DUTY
The Alleged Oral Contract Between Roche Bros. and Perdoni.
An agreement to extend insurance to another party does not fall under the statute of frauds, and thus, does not require a signed written note or memoranda expressing its terms. See G.L.c. 259, § 1 (listing types of agreements requiring writing under the statute of frauds). An oral agreement for insurance can be enforceable, even though it has no written components. Shumway v. Home Fire & Marine Ins. Co. of California , 301 Mass. 391, 395, 17 N.E.2d 212 (1938). The existence and terms of an oral contract ordinarily presents a question of fact for a trial court, rendering it unamenable to resolution by summary judgment. Spadafora Iron Works, Inc. v. Morse Co., Inc., 1998 Mass.App.Div. 114, 117 (Dist.Ct. 1998); see First Pennsylvania Mortgage Trust v. Dorchester Sav. Bank , 395 Mass. 614, 622-23, 481 N.E.2d 1132 (1985).
There is a genuine issue of material fact as to whether an oral contract existed between Perdoni and Roche Bros. at the time of Ms. Smith's accident, in which Perdoni promised to extend his general liability coverage to Roche Bros. Maria Natarelli-Roman, an administrative assistant for the President of Roche Bros., testified that Perdoni orally agreed to add Roche Bros. as additional insured in 2007, two years before the accident. No other testimony contradicts that statement. Other testimony, while falling short of corroborating Ms. Natarelli-Roman, lends credence to the possibility of an oral agreement. Charles Lisi, who approved Perdoni's proposal for snow removal services for the 2008-2009 season, could not recall a specific conversation nor the date when Roche Bros. adopted the new requirements. However, Mr. Lisi recalled that Roche Bros. began orally asking its snow removal contractors for the additional stipulations at some date. The uncontroverted testimony of Ms. Natarelli-Roman renders the question of the existence of the oral agreement between Perdoni and Roche Bros. inappropriate for resolution in summary judgment. Spadafora Iron Works, Inc. 1998 Mass.App.Div. at 117.Notwithstanding this analysis, our inquiry cannot end here.
WIC's Alleged Duty to Roche Bros.
An insurance broker owes a duty of care to a client when coverage has been requested. Campione v. Wilson , 422 Mass. 185, 194, 661 N.E.2d 658 (1996); Rae v. Air-Speed Inc., 386 Mass. 187, 192, 435 N.E.2d 628 (1982). However, there is no general duty of an insurance agent to ensure that the insurance policy they procure is adequate for the needs of the insured, as the agent does not generally have a fiduciary duty to the insured in this regard. Martinonis v. Utica Nat. Ins. Group , 65 Mass.App.Ct. 418, 420-21, 840 N.E.2d 994 (2006).
Roche Bros. cannot establish the essential element that WIC was aware of any agreement between Roche Bros. and Perdoni to list it as an " additional insured" at the relevant time. See Campione , 422 Mass. at 194. Without knowing that Perdoni had made such agreement and without any request to amend the coverage, WIC had no duty to do so. See Martinonis , 65 Mass.App.Ct. at 420-21. There is no evidence suggesting that WIC was made aware of such a decision. WIC, Perdoni, and the Roche Bros. have been unable to produce a copy of any Certificate of Insurance or other similar documentation that was issued in 2008-2009, even though all three would have received such documentation. Additionally, there is neither evidence pointing to whether WIC was made aware of the changes before Ms. Smith's accident in 2009. Mr. Perdoni could neither recall when he was asked to produce a Certificate of Insurance, nor when he alerted WIC of the additional provisions.
Roche Bros. relies on a Certificate of Insurance created in December 2012, three years after the accident. Such a document obviously has no force of law as to the events that occurred in 2008-2009, because an expired insurance policy cannot be retroactively amended to provide coverage. Costa v. Selectmen of Falmouth , 3 Mass.App.Ct. 57, 58, 322 N.E.2d 789 (1975). The document provides no support to the proposition that similar Certificates were produced in 2008-2009, since both parties admit the document was created in 2012, as no electronic records of prior Certificates were ever produced. Since there is no evidence presented that could lead a reasonable jury to conclude that WIC was aware of Perdoni's agreement to include Roche Bros. as an additional insured at the relevant period, summary judgment is appropriate. See Campione , 422 Mass. at 194; Rae , 386 Mass. at 192; see also Flesner , 410 Mass. at 809.
Roche Bros.' Alleged Reliance on WIC's Representations
A prospective insured should be able to rely on a broker to carry out a duty, when such a duty is created through a request for coverage. Campione , 422 Mass. at 194. A plaintiff suing for fraudulent misrepresentation must establish that it, in fact, relied on the defendant's misrepresentation in acting or refraining from acting and that reliance was justifiable and reasonable. Nei v. Burley , 388 Mass. 307, 311, 446 N.E.2d 674 (1983); Collins v. Huculak , 57 Mass.App.Ct. 387, 392, 783 N.E.2d 834 (2003) (" The plaintiff's reliance on the defendant's false statement must be reasonable and justifiable under the circumstances"). Absent such reliance, Roche Bros. cannot maintain a claim of misrepresentation. Callahan v. Harvest Bd. Int'l, Inc., 138 F.Supp.2d 147, 166 (D.Mass. 2001).
Similar to the question of duty, there is no record evidence to support Roche Bros.' claim that it reasonably relied on representations by WIC that they had been additionally insured. Without any documentation pertaining to WIC's alleged representations contemporaneous to the period in question, Roche Bros. cannot show what representations WIC made upon which it relied. By its own admission, Roche Bros. had little contact with WIC or Ms. Prescott at all. Moreover, most of their employees had no knowledge of WIC whatsoever. Roche Bros. cannot point to reliance upon the December 2012 Certificate of Insurance, because that was produced three years after the relevant period. It therefore flows that it could not have reasonably relied on a document that had not yet been created.
Roche Bros. also points out that a written contract was not necessarily required to trigger NGM's policy and that they were thus harmed by WIC's failure to endorse Roche Bros. as an additional insured. However, regardless of how many different methods of acquiring NGM's additional insured status, Roche Bros. is unable to point to any evidence suggesting WIC knew it needed to take any steps at all. Without any evidence pointing to the essential element that WIC made representations to Roche Bros. regarding their status as an " additional insured, " a reasonable jury could not find that Roche Bros. reasonably relied on representations by WIC. Again, summary judgment is thus appropriate. See Masingill v. EMC Corp. , 449 Mass. 532, 540, 870 N.E.2d 81 (2007); see also Foster, 444 Mass. at 672 (2005).
ORDER
For these reasons, the third-party defendant WIC Insurance, Inc.'s motion for summary judgment as against the third-party plaintiff Roche Bros. must be ALLOWED. Judgment shall enter in its behalf forthwith without costs.