Ideal Financial Services, Inc. v. Zichelle

9 Mass. L. Rptr. 98
CourtMassachusetts Superior Court
DecidedAugust 28, 1998
DocketNo. 961739A
StatusPublished

This text of 9 Mass. L. Rptr. 98 (Ideal Financial Services, Inc. v. Zichelle) 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
Ideal Financial Services, Inc. v. Zichelle, 9 Mass. L. Rptr. 98 (Mass. Ct. App. 1998).

Opinion

Fecteau, J.

Defendant Hingham Mutual Insurance Co. (“Hingham Mutual") was the insurer of property originally owned by defendants Linda and Michael Zichelle and later foreclosed upon and purchased by plaintiff Ideal Financial Services (“Ideal”). After Ideal became the owner of the property and while the Zichelles remained in the house pending eviction proceedings, a fire occurred. Ideal now seeks to recover from Hingham Mutual as the listed mortgagee under the Zichelle’s insurance policy or by reaching and applying any claim the Zichelles may have under that policy. Hingham Mutual denies any liability to Ideal because Ideal was no longer the mortgagee at the time of the loss and was not insured as owner of the [99]*99property, and because the Zichelles have no claim under the policy which Ideal may reach and apply.

Ideal and Hingham Mutual have each moved for summary judgment pursuant to Mass.R.Civ.P. 56(c). Ideal seeks summary judgment on Count V (Declaratory Judgment) and Count VI (Breach of Contract) of the First Amended Complaint against Hingham Mutual and Hingham Mutual moves for summary judgment on all counts of Ideal’s First Amended Complaint. Based upon the following discussion, this court now allows Hingham Mutual’s motion for summary judgment and denies Ideal’s motion for summary judgment.

BACKGROUND

The following facts are uncontested:

On July 18, 1990, in purchasing their home located at 611 Merriam Avenue in Leominster, Linda and Michael Zichelle granted a mortgage to Ideal for $170,000. The Zichelles obtained a property and fire insurance policy from Hingham Mutual insuring the Zichelles as the owners and Ideal as the mortgagee. In late 1994, the Zichelles defaulted on the mortgage and, at the foreclosure sale on December 1, 1994, Ideal purchased the property for $157,000. Ideal recorded a foreclosure deed on December 8, 1994.

On February 17, 1995, shortly before Ideal was to sell the property to a third party and while the Zichelles were still living at the property, a fire occurred and damaged the property. At the time of the fire, the Zichelle’s insurance policy with Hingham Mutual was in effect and the premiums had been paid. Neither the Zichelles nor Ideal had notified Hingham Mutual of the foreclosure sale. Hingham Mutual only learned of the change in ownership following the fire and following the claims made in connection with the fire.

After the fire, Ideal notified Hingham Mutual and made a timely claim seeking coverage under the insurance policy for damages caused by the fire. Hingham Mutual denied the claim on April 27, 1995 asserting that Ideal’s conduct in obtaining title through foreclosure without notifying Hingham Mutual of the change in ownership, deprived Ideal of any right to recover under the policy.

After the fire, the Zichelles and Hingham Mutual signed a non-waiver agreement preserving the rights of both parties. The Zichelles never pursued a claim against Hingham Mutual and Hingham Mutual states that, if they had, Hingham Mutual would have investigated the cause of the fire in defense of the Zichelle’s claim. Hingham Mutual attempted to either arrive at an agreed-upon figure with the Zichelles regarding the amount of their personal property loss, or to agree to disagree as to the appropriate figure. According to Hingham Mutual, the Zichelles failed to cooperate in determining the scope of damage to their personal property. The Zichelles never requested reference and failed to file suit against Hingham Mutual within the two-year statute of limitations.

DISCUSSION

I. SUMMARY JUDGMENT STANDARD

This court grants summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue as well as demonstrating that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact. Id. at 17.

II. APPLICATION AND INTERPRETATION OF THE INSURANCE POLICY

In Massachusetts, a complete transfer in ownership to the mortgagee voids an insurance policy. See Schanber v. Automobile Ins. Co. of Hartford, 285 Mass. 316, 318 (1934) (“a foreclosure sale followed by a deed from the mortgagee to himself as purchaser makes a policy void under the [mortgage clause], unless proper assent of the insurance company is obtained”). In Schanberg, the court reasoned that the mortgage clause and “conditions of this kind are strictly construed against the insurer, and the general rule is that such a condition refers only to an absolute transfer of the entire interest of the insured, completely divesting him of an insurable interest.” Id. at 318 (quoting Clinton v. Norfolk Mutual Fire Ins. Co., 176 Mass. 486, 489 (1900)). See also Guempel v. Great American Ins. Co., 11 Mass.App.Ct. 845, rev. denied, 383 Mass. 893 (1981) (mortgagee listed on policy not entitled to recover after foreclosure). In this case, it is undisputed that Ideal was the owner of the property at the time of the fire as it had foreclosed and recorded the foreclosure deed almost two months prior to the fire. “Our case law is clear that a mortgagee who purchases at foreclosure has no more rights than a third-party purchaser ...” Duclersaint v. Federal National Mortgage Assoc., 427 Mass. 809, 812 (1998). Accordingly, after foreclosure, Ideal had no more rights as an owner than a third-party purchaser would have had. Therefore, the insurance policy did not apply as Ideal no longer had an insurable interest as mortgagee under the policy and was never insured as an owner. Trustees of Thayer Academy v. The Corporation of the Royal Exchange Assurance of London, 281 Mass. 150, 154 (1932) (“After the foreclosure sale, the plaintiff no longer had an insurable interest as mortgagee, the ownership was entirely changed and a new title created by the exercise of the power of sale”).

[100]*100Even if the insurance policy did apply, Ideal cannot recover since it did not abide by the terms of the policy when it neglected to notify Hingham Mutual of the change in ownership following foreclosure. Proper interpretation of an insurance policy is a question of law which may be decided by the court on summary judgment. Massachusetts Bay Transp. Auth. v. Allianz Ins. Co., 413 Mass. 473, 476 (1992) (citing Nelson v. Cambridge Mut. Fire Ins. Co., 30 Mass.App. Ct. 671, 673 (1991)). When interpreting the provisions of an insurance policy, unambiguous terms are construed and enforced according to their plain meaning. Somerset Savings Bank v. Chicago Title Ins. Co., 420 Mass. 422, 427 (1995). “When the provisions of [an insurance] policy are plainly and definitely expressed, the policy must be enforced in accordance with the terms.” Id. (citing Cody v. Connecticut General Life Ins. Co., 387 Mass. 142, 146 (1982)).

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Related

Pederson v. Time, Inc.
532 N.E.2d 1211 (Massachusetts Supreme Judicial Court, 1989)
Cassidy v. Liberty Mutual Insurance
154 N.E.2d 353 (Massachusetts Supreme Judicial Court, 1958)
Community National Bank v. Dawes
340 N.E.2d 877 (Massachusetts Supreme Judicial Court, 1976)
Goldsmith v. Reliance Insurance
228 N.E.2d 704 (Massachusetts Supreme Judicial Court, 1967)
Cassesso v. Commissioner of Correction
456 N.E.2d 1123 (Massachusetts Supreme Judicial Court, 1983)
Gulezian v. Lincoln Insurance
506 N.E.2d 123 (Massachusetts Supreme Judicial Court, 1987)
Guempel v. Great American Insurance
420 N.E.2d 353 (Massachusetts Appeals Court, 1981)
Clinton v. Norfolk Mutual Fire Insurance
57 N.E. 998 (Massachusetts Supreme Judicial Court, 1900)
Trustees of Thayer Academy v. Corporation of the Royal Exchange Assurance of London
183 N.E. 264 (Massachusetts Supreme Judicial Court, 1932)
Sleeper v. Massachusetts Bonding & Insurance
186 N.E. 778 (Massachusetts Supreme Judicial Court, 1933)
Schanberg v. Automobile Insurance Co. of Hartford
285 Mass. 316 (Massachusetts Supreme Judicial Court, 1934)
Potter v. Great American Indemnity Co. of New York
55 N.E.2d 198 (Massachusetts Supreme Judicial Court, 1944)
Cody v. Connecticut General Life Insurance
439 N.E.2d 234 (Massachusetts Supreme Judicial Court, 1982)
Somerset Savings Bank v. Chicago Title Insurance
649 N.E.2d 1123 (Massachusetts Supreme Judicial Court, 1995)
Duclersaint v. Federal National Mortgage Ass'n
696 N.E.2d 536 (Massachusetts Supreme Judicial Court, 1998)

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Bluebook (online)
9 Mass. L. Rptr. 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ideal-financial-services-inc-v-zichelle-masssuperct-1998.