Opinion
16-P-434
02-21-2017
TEC-CAST, INC. v. The FIRST LIBERTY INSURANCE CORPORATION.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Tec-Cast, Inc. (Tec-Cast), appeals from the order denying its motion for relief from judgment filed pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974). We review to determine whether the judge abused his discretion in denying the motion. Nortek, Inc . v. Liberty Mut. Ins. Co ., 65 Mass. App. Ct. 764, 775 (2006).
Two actions arose from the 2008 explosion of one of Tec-Cast's unfired pressure vessels at its New Jersey foundry, which killed one person and injured several others. The first action, which Tec-Cast commenced in 2009, alleges that the defendant, The First Liberty Insurance Corporation (First Liberty), committed breach of contract, failed to pay insurance benefits, and violated G. L. c. 93A when it failed to inspect the unfired pressure vessel. In 2011, First Liberty moved for summary judgment, which a judge of the Superior Court allowed on the ground that, under New Jersey law at the time of the explosion, First Liberty had no duty to inspect the vessel. A panel of this court affirmed the corrected judgment in an unpublished memorandum and order pursuant to our rule 1:28. See Tec-Cast, Inc . v. The First Liberty Ins. Corp ., 81 Mass. App. Ct. 1132 (2012).
The parties agreed to dismiss, with prejudice, the claim of failure to pay insurance benefits.
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In the second action, also commenced in 2009, the decedent's estate filed a complaint in New Jersey Superior Court against both Tec-Cast and First Liberty. In January, 2013, a judge ordered the entry of judgment on liability, holding that, under a certain New Jersey regulation, First Liberty had a duty to inspect the vessel. Final judgment entered after a jury verdict on damages the following month, from which both parties appealed. Tec-Cast and First Liberty reached a settlement and, in March of 2015, dismissed their appeals.
Shortly thereafter, in June, 2015, Tec-Cast filed a rule 60(b)(6) motion for relief from judgment in the Massachusetts case, attempting to revive it essentially on the strength of the New Jersey regulation raised in the New Jersey case. Absent from Tec-Cast's motion, however, is an affidavit explaining why, nearly four years prior, it failed to bring to the attention of the Superior Court judge, or this court, the New Jersey regulation at issue. Tec-Cast accordingly has failed to demonstrate that its motion was filed within "a reasonable time" as required by the rule. Mass.R.Civ.P. 60(b). See Owens v. Mukendi , 448 Mass. 66, 74-76 (2006) ; Kennedy v. Beth Israel Deaconess Med. Center, Inc ., 73 Mass. App. Ct. 459, 467-469 (2009). Tec-Cast also has failed to demonstrate extraordinary circumstances. See Sahin v. Sahin , 435 Mass. 396, 406 (2001). The motion properly was denied.
Order denying motion for relief from judgment affirmed .