Hartford Fire Insurance Co. ex rel. Sierra Plus Tango, LLC v. E.M. Duggan, Inc.

30 Mass. L. Rptr. 634
CourtMassachusetts Superior Court
DecidedFebruary 11, 2013
DocketNo. NOCV201001998
StatusPublished

This text of 30 Mass. L. Rptr. 634 (Hartford Fire Insurance Co. ex rel. Sierra Plus Tango, LLC v. E.M. Duggan, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hartford Fire Insurance Co. ex rel. Sierra Plus Tango, LLC v. E.M. Duggan, Inc., 30 Mass. L. Rptr. 634 (Mass. Ct. App. 2013).

Opinion

Garsh, E. Susan, J.

The plaintiff, Hartford Fire Insurance Company (“Hartford”), brings this action as subrogee of Sierra Plus Tango, LLC (“Sierra”). The defendant, E.M. Duggan, Inc. (“Duggan”), seeks summary judgment on the grounds that all the claims at issue have been waived. For the reasons set forth below, Duggan’s motion for summary judgment is allowed.

BACKGROUND

The relevant facts are not in dispute.

Sierra was the owner and developer of a condominium project in Cambridge (the “Project”). S&S Boston Construction LP (“S&S”) was the construction manager for the Project. Duggan was the plumbing subcontractor for the Project.

On November 29, 2007, before construction of the Project was complete, a water leak was discovered in one of the Project’s buildings. The leak was undetected until construction personnel arrived at the beginning of the work day and found water pouring out of the building. The leak caused substantial property damage. Hartford indemnified Sierra for its damages pursuant to the Builder’s Risk coverage in the insurance policy it had issued to Sierra (the “Policy”). Hartford is not aware of any uninsured damages to Sierra.

Paragraph J of the Policy explicitly allows Sierra to waive its right to recover from others prior to a covered loss, thereby eliminating the insurer’s right to recover as subrogee. In relevant part, it provides:

Transfer Of Rights Of Recovery Against Others To-Us
If any person or organization to or for whom we make payment under this Coverage Part has rights to recover damages from another, those rights are transferred to us to the extent of our payment . . . But you may waive your rights against another party in writing:

1. Prior to a loss to your Covered Property.

On May 4, 2005, prior to the loss to covered property occasioned by the leak, Sierra had entered into a contract for construction of the Project with S&S (the “Agreement”). Section 1.2 of the Agreement states, “For the Construction Phase, the General Conditions of the contract shall be the AIA_ Document A201TM— 1997, General Conditions of the Contract for Construction, as modified, which is attached hereto and incorporated herein by reference.” Section 11.4.7 of the General Conditions provides:

Waivers of Subrogation. The Owner and Contractor waive all rights against (1) each other and any of their subcontractors, subsubcontractors, agents and employees, each of the other . . . for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Section 11.4 or other property insurance applicable to the Work . . .

On November 26, 2007, a different unit in the Project suffered a leak from a soldered plumbing connection for a shower mixing valve. The shower mixing valve is a device located behind the wall of the shower. No significant damage resulted from that leak because construction personnel were on site. Other units in the Project suffered shower valve leaks on September 12, 2008, June 11, 2010, and November 4, 2010, none of which resulted in significant damage.

On December 3, 2006, a shower valve installation leak occurred on a wholly unrelated Duggan project. For purposes of this motion, the court assumes that this leak caused significant damage to several apartments in that unrelated building, that it resulted from the failure of a solder joint in the bathroom of one of the units, and that Duggan was aware that this leak [635]*635had occurred before November 29, 2007. Duggan never warned Sierra that it had experienced a leak or leaks similar to the one at issue on other projects. For purposes of this motion, the court assumes that, if Duggan had advised Sierra that a similar leak or leaks on unrelated projects had resulted in property damage, Sierra would have taken precautions of some kind, such as off-hours monitoring of the building’s interior, so that any leak could be contained and not result in the kind of damage that occurred on November 29th.

The Amended Complaint contains three counts. Each count is brought by Hartford as the subrogee of Sierra. Count I, denominated as a claim for negligence, alleges that Duggan was negligent by improperly soldering the shower mixing valve that failed and that its work failed to meet the applicable standard of care for plumbing work. Count I alleges that such negligence was a proximate cause of Sierra’s damages. Count II, also denominated as a claim for negligence, alleges that Duggan had a problem with soldered joints leaking on other projects and that it negligently failed to warn Sierra or otherwise make recommendations to Sierra to prevent the leak at issue. Count II alleges that such negligence was a proximate cause of Sierra’s damages. Count III, brought under G.L.c. 93A, §11, alleges that Duggan committed an unfair or deceptive act or practice by failing to warn Sierra of Duggan’s problems with defective solder joints and that such conduct was a proximate cause of Sierra’s damages.

DISCUSSION

Waiver of subrogation provisions in construction contracts like the Agreement are recognized in Massachusetts, and Hartford does not contend otherwise. See, e.g., North American Specialty Insurance Co. v. Payton Construction Corp., 80 Mass.App.Ct. 367 (2011). Hartford does not argue that there is a public policy exception that exempts all chapter 93A claims from a waiver of subrogation clause. Furthermore, Hartford agrees with the defendant that the parties allocated the risk of Duggan’s poor workmanship to the insurer, in effect conceding that Duggan is entitled to summary judgment on Count I of the Amended Complaint.

With respect to the remaining counts, Hartford argues its claims survive because they fall outside the scope of the waiver in the Agreement. Citing Interested Underwriters at Lloyds v. Ducor’s, Inc., 103 A.D.2d 76, 77 (N.Y.App.Div. 1984), aff'd, 65 N.Y.2d 647 (1985), Hartford contends that, like the claim in that case, Counts II and III relate to a breach of a duly of care that is completely extraneous to any duty or obligation encompassed by the Agreement and the relationship created thereunder. Therefore, according to Hartford, Sierra’s right to bring these claims and its concomitant right to sue as subrogee of Sierra were not waived.

The interpretation of the Agreement is a question of law for the court. Cody v. Connecticut General Life Insurance company, 387 Mass. 142, 146 (1982). “In interpreting a contract, ‘[t]he objective is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose.’ ” Rubin v. Murray, 79 Mass.App.Ct. 64, 75 (2011) (citations omitted). The application of contract language to known facts also presents a question of law. Weiler v. Portfolioscope, Inc., No. 12-P-261, slip op. (Mass.App.Ct., Feb. 1, 2013); 2013 Mass.App. Lexis 18 at *12 (Mass.App.Ct. Feb. 1, 2013).

No rational parsing of the Agreement permits the carving out of a negligent failure to warn claim or a chapter 93A claim premised on failure to warn from the scope of the waiver of subrogation clause in the Agreement. The Agreement contains no such explicit exception. It waives “all rights” of Sierra against S&S and its subcontractors for damages caused by “fire or other causes of loss” to the extent covered by property insurance.

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Related

Haemonetics Corp. v. Brophy & Phillips Co.
501 N.E.2d 524 (Massachusetts Appeals Court, 1986)
Interested Underwriters at Lloyds v. Ducor's, Inc.
103 A.D.2d 76 (Appellate Division of the Supreme Court of New York, 1984)
Cody v. Connecticut General Life Insurance
439 N.E.2d 234 (Massachusetts Supreme Judicial Court, 1982)
MiddleOak Insurance v. Tri-State Sprinkler Corp.
931 N.E.2d 470 (Massachusetts Appeals Court, 2010)
Rubin v. Murray
943 N.E.2d 949 (Massachusetts Appeals Court, 2011)
North American Specialty Insurance v. Payton Construction Corp.
953 N.E.2d 233 (Massachusetts Appeals Court, 2011)

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Bluebook (online)
30 Mass. L. Rptr. 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartford-fire-insurance-co-ex-rel-sierra-plus-tango-llc-v-em-duggan-masssuperct-2013.