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Matzner v. Seaco Ins. Co.

Superior Court of Massachusetts, At Suffolk

August 26, 1998, Decided

96-0498-B

Opinion

MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs challenge defendant's refusal to pay, under an insurance policy it issued to plaintiffs, damages associated with the carbon-monoxide contamination of plaintiffs' apartment building. Plaintiffs assert that defendant breached its contract and violated G.L.c. 93A and c. 176D. Both parties have moved for partial summary judgment. For the reasons set out below, plaintiffs' motion is allowed in part and denied in part, and defendant's motion is denied.

BACKGROUND

The following facts are undisputed unless otherwise noted. At all relevant times, plaintiffs Joseph and Alexander Matzner ("the Matzners") owned an apartment building at 270 Clarendon Street, Boston ("the Building"), and were insured by a "Businessowners" insurance policy ("the Policy") issued by defendant SEACO Insurance Company ("SEACO"). The Policy's "Businessowners Special Property Coverage [*2]  Form" ("the Form"), on which the Matzners rely for coverage, states that:

We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.

The Form defines "Covered Cause of Loss" as:

RISKS OF DIRECT PHYSICAL LOSS unless the loss is [excluded or limited in subsequent sections of the Form].

The Form does not define either the term "direct physical loss . . . or damage" or the term "RISKS OF DIRECT PHYSICAL LOSS."

In addition to explaining what is covered, the Form contains several relevant exclusions, discussed below as necessary.

The parties' dispute over the scope of coverage arises from events beginning February 10, 1995, when a tenant in Unit # 4 of the Building called the Boston Fire Department because the unit's carbon-monoxide detector had sounded. The Fire Department arrived, measured a high level of carbon monoxide, 2 and directed the tenants to leave the unit. 3 Mr. Matzner contacted his heating service, which in turn contacted a chimney-sweep service. Employees of both services came to the building and reviewed the condition [*3]  of the building's chimney. One or both concluded that the carbon monoxide buildup was due to "some sections of old round galvanized pipe" that had "wedged [their] way into the top of" and were blocking the chimney. As of the filing of the summary-judgment motions, the parties had not discovered how the pipe found its way into the chimney.

 [*4]  The chimney-sweep service removed the piping; however, the alarm in Unit # 4 sounded again the next day. The chimney-sweep service returned and cleaned and tested the chimney again. Consultations among the chimney-sweep service, a building inspector and the plaintiffs' heating company yielded the suggestion that the chimney be lined and an exhaust fan installed on its top, both of which were done.

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1998 Mass. Super. LEXIS 407 *

Joseph Matzner et al. 1 v. Seaco Insurance Company

Disposition:  [*1]  Plaintiffs' motion for partial summary judgment ALLOWED as to Count I and DENIED as to Count II, and defendant's cross-motion DENIED in its entirety.

CORE TERMS

contamination, insured, physical loss, coverage, pollution exclusion, pollution, plaintiffs', summary judgment, ordinance, property damage, insurance policy, carbon monoxide, carbon-monoxide, adjuster, ambiguous, smoke, paint, exclude coverage, cause of loss, industrial, includes, premises, tangible, chimney, tenants, cases, objectively reasonable, liability policy, summary-judgment, chimney-sweep

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Judgments, General Overview, Legal Entitlement, Materiality of Facts, Burdens of Proof, Appropriateness, Insurance Law, Policy Interpretation, Reasonable Expectations, Claim, Contract & Practice Issues, Question of Law, Ambiguous Terms, Ordinary & Usual Meanings, Contracts Law, Defenses, Ambiguities & Mistakes, Construction Against Insurers, Reasonable Person, Commercial General Liability Insurance, Exclusions, Pollution, Real Property Law, Environmental Regulations, Liabilities & Risks, Contractual Relationships, Property Insurance, Coverage, Property Damage, Pollution