Hanover New England Insurance v. Smith

621 N.E.2d 382, 35 Mass. App. Ct. 417, 1993 Mass. App. LEXIS 958
CourtMassachusetts Appeals Court
DecidedOctober 19, 1993
Docket91-P-492
StatusPublished
Cited by21 cases

This text of 621 N.E.2d 382 (Hanover New England Insurance v. Smith) 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
Hanover New England Insurance v. Smith, 621 N.E.2d 382, 35 Mass. App. Ct. 417, 1993 Mass. App. LEXIS 958 (Mass. Ct. App. 1993).

Opinion

Armstrong, J.

The defendants made a claim under their homeowners’ policy for damage caused by a release of heating oil in their cellar. The insurer denied coverage and filed this action for declaratory relief to confirm the correctness of its position. The judge found for the homeowners, and the insurer appealed.

The damage was caused by the malfunction of an electrical relay switch in the defendants’ oil burner, which was supposed to shut off the flow of oil when the burner was not igniting. Oil accumulated in the combustion chamber of the furnace, leaked through and permeated the insulation around the furnace, then escaped to the cellar floor where it puddled *418 and traveled under (and into) the sheetrock partitioning of the family room. The defendants’ claim is for the loss of the furnace, the partitioning, and the family room floor and carpet, all of which must be replaced, as well as unspecified family room furnishings.

The insurer denied coverage based on two policy exclusions appearing in the “Perils Insured Against” section of the policy. One exclusion is for losses directly “caused by . . . inherent vice, latent defect, mechanical breakdown.” The other is for losses directly “caused by . . . release, discharge, or dispersal of contaminants or pollutants.” Unlike another section of the policy, entitled “Section I —■ Exclusions,” which excludes losses caused “directly or indirectly” by the causes listed thereunder, the exclusions listed in the “Perils Insured Against” section of the policy do not apply to losses indirectly resulting from the listed causes: “Under items 1 and 2 [which include the two quoted exclusions], any ensuing loss to property described in Coverages A [dwelling] and B [other structures] not excluded or excepted in this policy is covered” (emphasis added).

The judge ruled that the exclusion for losses directly caused by mechanical breakdown was inapplicable because the breakdown of the relay safety switch was electrical, not mechanical, and that the dispersal of contaminants exclusion was inapplicable both because the differentiation between “direct” losses and “ensuing” losses is inherently ambiguous and because of the “principle that recovery on an insurance policy is allowed ‘where the insured risk itself set into operation a chain of causation in which the last step may have been an excepted risk.’ ” Standard Elec. Supply Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 1 Mass. App. Ct. 762, 765-766 (1974), quoting from 5 Appleman, Insurance Law and Practice § 3083, at 311 (1970). (This principle is most recently discussed in detail and reaffirmed in Jussim v. Massachusetts Bay Ins. Co., 415 Mass. 24, 26-30 [1993].)

It is unnecessary to decide whether the judge was correct in treating the mechanical breakdown exclusion as inapplicable to the claim, either for the reason he gave or for the rea *419 son, argued by the defendants, that the claimed losses were ensuing, not direct, losses in relation to the malfunction of the oil flow safety switch (that is, according to this argument, that the malfunction of the switch was the direct cause of the oil release, and the oil release, in turn, was the direct or immediate cause of the damage to the furnace insulation, the partition, and the family room).

We concentrate instead on the application of the release of contaminants exclusion, which we have concluded is controlling under the conceptual structure of this particular policy. We begin by assuming, with the parties and the judge, that a release of home heating oil is a release of a contaminant within the meaning of the policy. 2 As applied to this exclusion (as well as the mechanical breakdown exclusion), the policy differentiates between direct losses, i.e., losses directly caused by the release of the oil, which are not covered, and ensuing losses, which we take to mean losses indirectly caused by release of the oil, which are covered. In practical application, we understand the policy to mean that when released oil spreads to soil or building components or personal property, with the result that they become noxious, dysfunctional, or even hazardous, that loss must be regarded as the direct result of the oil release. Indirect or “ensuing” losses would include those resulting from a fire caused by the presence of the oil or from a collapse or spill caused by the disintegration of oil-soaked structural components or the presence of slippery surfaces.

Policy exclusions that differentiate between direct and ensuing losses cannot be analyzed under the commonly applied “train of events test” (Standard Elec. Supply Co. v. Norfolk *420 & Dedham Mut. Fire Ins. Co., 1 Mass. App. Ct. at 766) that differentiates between “the cause or agency which is nearest in time or place to the result,” on the one hand, and the “active efficient cause” or “efficient proximate cause” on the other, the latter being the cause that sets in motion the train of events leading to the claimed loss. Jussim v. Massachusetts Bay Ins. Co., 415 Mass. at 27. These concepts are all discussed in detail in the Jussim case, supra at 26-30, where the authorities are reviewed and clarified. The test has been used to distinguish, in the succinct language of Bettigole v. American Employers Ins. Co., 30 Mass. App. Ct. 272, 276 (1991), “between an excluded event which causes a loss . . ., and a covered event which causes a loss in the form of an excluded event.” Where the train of events test applies, an insurer is held liable on a loss immediately produced by an excluded cause, if it was in turn produced by a covered cause'. Thus, in the recent Jussim case, supra at 28-30, the insured was held covered for losses caused by a seepage of oil from his neighbor’s cellar, despite a release of contaminants exclusion in his policy, because the oil spill in the neighbor’s cellar was the result of a covered cause, negligence. The covered cause was treated under the train of events test as the “efficient proximate cause” of the insured’s loss. Id. at 30.

The Jussim decision recognizes that the train of events test is not a principle of law that applies regardless of the policy language, and it suggests that an insurer which seeks a total exclusion of losses caused by a release of contaminants state in its policy — perhaps by placement within the general exclusions section of the policy — that the insurance does not apply to losses caused “directly or indirectly” by contaminants and that “such [a] loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.” Id. at 30-31.

Although not so broadly exclusionary as the language suggested in Jussim, the distinction made in this policy between direct losses and ensuing losses cuts across the train of events analysis, separately indicating the legal effect of each succes *421 sive causal step in the train.

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

Related

H.P. Hood LLC v. Allianz Global Risks US Insurance Co.
39 N.E.3d 769 (Massachusetts Appeals Court, 2015)
Lantheus Medical Imaging, Inc. v. Zurich American Ins. Co.
255 F. Supp. 3d 443 (S.D. New York, 2015)
Kesling v. American Family Mutual Insurance
861 F. Supp. 2d 1274 (D. Colorado, 2012)
United Specialty Insurance v. Weisberg
29 Mass. L. Rptr. 255 (Massachusetts Superior Court, 2011)
RTG Furniture Corp. v. Industrial Risk Insurers
616 F. Supp. 2d 1258 (S.D. Florida, 2008)
Merrimack Mutual Fire Insurance v. Slater
22 Mass. L. Rptr. 583 (Massachusetts Superior Court, 2007)
Tocci Building Corp. v. Commonwealth Insurance
22 Mass. L. Rptr. 522 (Massachusetts Superior Court, 2007)
Nascimento v. Preferred Mutual Insurance
478 F. Supp. 2d 143 (D. Massachusetts, 2007)
Liska v. Travelers Property Casualty Corp.
18 Mass. L. Rptr. 644 (Massachusetts Superior Court, 2004)
Utica Mutual Insurance v. Hall Equipment, Inc.
73 F. Supp. 2d 83 (D. Massachusetts, 1999)
Farrell v. Royal Insurance Co. of America
989 F. Supp. 159 (D. Connecticut, 1997)
Stop & Shop Companies, Inc. v. Federal Insurance
946 F. Supp. 99 (D. Massachusetts, 1996)
National Union Fire Insurance Co. of Pittsburgh, PA v. Shield Guard Service, Inc.
5 Mass. L. Rptr. 689 (Massachusetts Superior Court, 1996)
Arbeiter v. Cambridge Mutual Fire Insurance
5 Mass. L. Rptr. 77 (Massachusetts Superior Court, 1996)
Haswell v. Kramer
659 N.E.2d 146 (Indiana Court of Appeals, 1995)
Town of Wakefield v. Royal Insurance
4 Mass. L. Rptr. 41 (Massachusetts Superior Court, 1995)
Seymour Manufacturing Co. v. Commercial Union Insurance Co.
648 N.E.2d 1214 (Indiana Court of Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
621 N.E.2d 382, 35 Mass. App. Ct. 417, 1993 Mass. App. LEXIS 958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanover-new-england-insurance-v-smith-massappct-1993.