Aguiar v. Generali Assicurazioni Insurance

715 N.E.2d 1046, 47 Mass. App. Ct. 687
CourtMassachusetts Appeals Court
DecidedSeptember 9, 1999
DocketNo. 97-P-253
StatusPublished
Cited by14 cases

This text of 715 N.E.2d 1046 (Aguiar v. Generali Assicurazioni Insurance) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aguiar v. Generali Assicurazioni Insurance, 715 N.E.2d 1046, 47 Mass. App. Ct. 687 (Mass. Ct. App. 1999).

Opinion

Kass, J.

On November 5, 1992, fire destroyed an unoccupied restaurant owned by the plaintiffs, Louis F. Aguiar and Fernando N. Lopes, as tenants in common. Aguiar gave notice of the loss to the defendant insurer, Generali Assicurazioni Insurance Company (Generali), which denied coverage. There were two principal grounds for that denial: (1) the policy contained a provision, mandated by statute, that liability for loss from fire would not attach should the insured premises be vacant for thirty consecutive days, and the premises, at the time of the fire, [688]*688had been vacant forty-nine consecutive days; and (2) the policy was void as a consequence of material misrepresentations by the insured parties when they applied to Generali for insurance. Aguiar and Lopes claim that the policy defeats reasonable expectations and that, in any event, the insurer had waived the occupancy condition. They brought an action for their fire loss against Generali, with counts under G. L. c. 176D, § 3(9), and c. 93A, § 11. We decide that a motion for summary judgment was rightly allowed in favor of Generali on the basis of the first point, i.e., that the premises were left vacant for more than thirty consecutive days. We, therefore, do not reach the second basis that Generali asserts for denying coverage.

1. Facts. We recite the undisputed facts material to the defense that the owners had left the property vacant for more than thirty consecutive days. Aguiar and Lopes bought the property, located in Westport, in 1988, and organized Mediterranean, Inc., to operate there a restaurant called the Mediterranean.2 In 1990, Aguiar, because the economy was slack, wanted the restaurant to be less upscale. Lopes differed and the parties agreed that Lopes would disengage from the direction of the restaurant business. Aguiar organized a new corporation, American Legion Highway Enterprises, Inc. (American Legion), to operate the restaurant, now known as Galleria II, with two new venturers, Gerard DiSanto and Robert Ashness, each of whom acquired one-third of the stock issued by American Legion; Aguiar held the remaining third.

American Legion entered into a lease with Aguiar and Lopes, who continued to own the real estate. In July, 1992, Aguiar undertook to replace existing insurance that was due to expire September 26, 1992. Through his insurance agent, the Maury Kusinitz Insurance Agency (the Kusinitz agency), Aguiar applied to Generali for casualty insurance coverage on the property on behalf of himself, Lopes and his wife (although she appeared to have no insurable interest), and American Legion. Generali issued a policy for the period September 30, 1992, to September [689]*68930, 1993, and Aguiar paid the $5,941 premium.3 The coverage was $290,000 for the building and $50,000 for its personal property contents. The restaurant closed for the season on Labor Day, 1992. It remained unoccupied, with all utilities shut off, until the November 5 fire.

In the year it burned down, the property was remarkably vulnerable to incendiaries — what Lieutenant William G. Baraby of the Westport fire department called fire “intentionally set by human intervention.” As we rest our decision on the first ground urged by the defense (as did the motion judge), that arson history is only of peripheral interest, but it illuminates why an insurer would be concerned about an unoccupied building. On February 23, 1992, the fire department responded to a call to investigate a smell of gasoline at the restaurant. It turned out the floor of the attic in the restaurant building had been saturated with gasoline. While checking that out, Lieutenant Baraby observed charring and smoke stains in the attic from an earlier fire which in his judgment had been intentionally set but did not spread.4 Fire broke out at the restaurant on September 17, 1992, nine days before the existing insurance policy would expire. The fire was contained. Lieutenant Baraby concluded it had been set. On October 28, 1992, the Westport police noticed the back door to the shut property open, investigated, and found the remains of a wastepaper basket fire in a ladies’ room. That fire did not spread. On November 5, as noted, the entire building was destroyed by fire, a blaze that Lieutenant Baraby described as “incendiary in origin and caused by human intervention.” The Kusinitz agency had notified Aguiar that the Generali policy was being canceled effective midnight of November 5 because of misrepresentations in the application for insurance; the fire erupted that evening before midnight.

2. Discussion. Section 99 of G. L. c. 175, as amended through St. 1985, c. 464, § 2, prescribes a standard form of fire insurance policy in Massachusetts. See Pappas Enterprises, Inc. v. Commerce & Indus. Ins. Co., 422 Mass. 80, 81 (1996). Among the provisions required by § 99 is the following:

[690]*690“Unless otherwise provided in writing added hereto this company shall not be liable for loss occurring ...(b) while the described premises, whether intended for occupancy by owner or tenant, are vacant or unoccupied beyond a period of . . . thirty consecutive days. . . .”5

That precise language appeared in amendatory Massachusetts endorsements to the policy under the caption “Conditions suspending or restricting insurance.”6 That the restaurant premises had been vacant more than thirty consecutive days at the time of the loss is undisputed. Nevertheless, the plaintiffs argue they are entitled to damages under the policy because (a) their reasonable expectation as purchasers of the insurance contract is that they were covered, and (b) Generali had waived the provision.

(a) Reasonable expectation. The plaintiffs suggest that one who buys fire insurance expects to be protected against — well — loss by fire. Of course it cannot be as simple as that, because an insurance policy is full of requirements and conditions, some of which can be altered by amendments to the policy, more often than not in consideration of an additional premium to reflect the altered risk. But, the plaintiffs say, they did not receive the actual text of the policy until after the loss and the disavowal by Generali of liability. To that there may be two responses. First, as the occupancy requirement is of statutory origin, it would have appeared in every fire policy that the plaintiffs had read, assuming they had read one. The plaintiffs had no reason to expect the condition would be absent from the Generali policy. There was no history of negotiation for amendment of the occupancy requirement. Second, an insured is charged with his agent’s knowledge of the terms and conditions of an insurance policy. The Kusinitz agency was the plaintiffs’ agent. See Century Indent. Co. v. Jameson, 333 Mass. 503, 504 (1956); Commercial Union Ins. Co. v. Connors, 42 Mass. App. Ct. 538, 542 (1997); Restatement (Second) of Agency § 272 (1958); 3 Couch, Insurance § 46.21 (3d ed. 1995).

Massachusetts cases have smiled upon, even if not yet wholly [691]*691embraced, the process of analyzing a provision of an insurance contract in light of the reasonable expectation of the insurance buyer. See Markline Co. v. Travelers Ins. Co., 384 Mass. 139, 142 (1981); Bond Bros., Inc. v. Robinson, 393 Mass. 546, 551-552 (1984); Home Indem. Ins. Co. v. Merchants Distribs., Inc., 396 Mass.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Valley Forge Insurance v. Field
670 F.3d 93 (First Circuit, 2012)
RLI INSURANCE COMPANY v. Santos
746 F. Supp. 2d 255 (D. Massachusetts, 2010)
Gargano v. Liberty International Underwriters, Inc.
575 F. Supp. 2d 300 (D. Massachusetts, 2008)
Clean Harbors Environmental Services, Inc. v. Boston Basement Technologies, Inc.
2008 Mass. App. Div. 72 (Mass. Dist. Ct., App. Div., 2008)
DeBartolo v. Underwriters at Lloyd's of London
2007 VT 31 (Supreme Court of Vermont, 2007)
Medical Professional Mutual Life Insurance v. Steinberg
20 Mass. L. Rptr. 672 (Massachusetts Superior Court, 2006)
Simon v. National Union Fire Insurance
782 N.E.2d 1125 (Massachusetts Appeals Court, 2003)
Schiappa v. National Marine Underwriters, Inc.
775 N.E.2d 791 (Massachusetts Appeals Court, 2002)
Langill v. Vermont Mutual Insurance
268 F.3d 46 (First Circuit, 2001)
McGrail Associates, Inc. v. Universal Underwriters, Inc.
13 Mass. L. Rptr. 670 (Massachusetts Superior Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
715 N.E.2d 1046, 47 Mass. App. Ct. 687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aguiar-v-generali-assicurazioni-insurance-massappct-1999.