Money Store/Massachusetts, Inc. v. Hingham Mutual Fire Insurance

708 N.E.2d 687, 46 Mass. App. Ct. 636, 1999 Mass. App. LEXIS 462
CourtMassachusetts Appeals Court
DecidedApril 16, 1999
DocketNo. 97-P-1322
StatusPublished
Cited by3 cases

This text of 708 N.E.2d 687 (Money Store/Massachusetts, Inc. v. Hingham Mutual Fire 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
Money Store/Massachusetts, Inc. v. Hingham Mutual Fire Insurance, 708 N.E.2d 687, 46 Mass. App. Ct. 636, 1999 Mass. App. LEXIS 462 (Mass. Ct. App. 1999).

Opinion

Kass, J.

On a complaint by The Money Store/Massachusetts, Inc. (Money Store), a judge of the Superior Court declared that Money Store, as a named second mortgagee in a fire insurance [637]*637policy issued by Hingham Mutual Fire Insurance Company (Hingham Mutual), was entitled to recover $21,558 against its mortgage debt under that insurance policy, and that Hingham Mutual could not wipe out Money Store’s interest through exercise of subrogation and assignment rights acquired when Hingham Mutual paid the debt of the insured to a first mortgagee. From that judgment Hingham Mutual appeals. We affirm.

On the declarations of coverage of a homeowner’s insurance policy (Special Form HO-3), issued by Hingham Mutual on a residential property at 50 Montgomery Street, Springfield, the policy listed two mortgagees, Chicopee Savings Bank (first mortgagee) and Money Store (second mortgagee). The insurance coverage on the dwelling was to a limit of $100,000. On November 29, 1992, a significant loss occurred, although that loss was within the policy limits.3 Hingham Mutual paid the balance of the first mortgage note, $40,600, to Chicopee Savings Bank. Under a clause in the policy, the insurer thereby became subrogated “to all rights of the mortgagee granted on the mortgage on the property.” As an option, the insurer could also take from a mortgagee whose debt had been paid “a full assignment and transfer of the mortgage and all securities held as collateral to the mortgage debt.” Hingham Mutual did take such an assignment from Chicopee Savings Bank.

Armed with the assignment and its subrogation rights, Hing-ham Mutual proceeded to foreclose on the first mortgage, thereby purporting to wipe out the junior mortgage held by Money Store and any claims by Money Store against the insurance policy. At the time of the foreclosure sale, the fair market value of the damaged premises was between $35,000 and $40,000. Hingham Mutual was the only bidder, and bid the property in at $30,000, none of which was applied to Money Store’s second mortgage. The loss to the premises from the explosion and subsequent fire was $40,648.40.4 In its complaint, Money Store requested that the court consider the debt on the first mortgage as of the time of the foreclosure to be zero (as [638]*638Hingham Mutual had paid it off) and that Money Store was entitled to the $30,000 in foreclosure sale proceeds, or the fair market value of the property at the time of foreclosure.

In arriving at a judgment of $21,558 (plus interest and costs) in favor of Money Store, the Superior Court judge subtracted from the $30,000 in gross proceeds of the foreclosure sale: Hingham Mutual’s cost of carrying the property (taxes, water, sewer), expenses of foreclosure, and legal fees. Hingham Mutual’s position on appeal is that the subrogation and assignment language in the fire insurance policy allow it to step into the shoes of Chicopee Savings Bank, the first mortgagee, and through foreclosure of the first mortgage to extinguish the second mortgage interest. Statutory and decisional law are to the contrary.

1. Policy provisions. We start with the fire insurance policy, which is a standard form prescribed in G. L. c. 175, § 99. When considering a policy based on statutory requirements, if the language when applied exposes an unanswered question, we attempt, in the process of interpretation, to be faithful to the legislative design. Mailhot v. Travelers Ins. Co., 375 Mass. 342, 345 (1978). Cardin v. Royal Ins. Co. of America, 394 Mass. 450, 453-454 (1985). Arnica Mut. Ins. Co. v. Bagley, 28 Mass. App. Ct. 85, 90 (1989). All the pertinent provisions of the insurance policy (including the subrogation and assignment provisions from which we have quoted) appear in a section entitled “Mortgage Clause,” and read as follows:

“If a mortgagee is named in this policy, any loss payable under Coverage A or B will be paid to the mortgagee and you, as interests appear. If more than one mortgagee is named, the order of payment will be the same as the order of precedence of the mortgages ....
“If we pay the mortgagee for any loss and deny payment to you:
“a. we are subrogated to all the rights of the mortgagee granted under the mortgage on the property; or
“b. at our option, we may pay to the mortgagee the whole principal on the mortgage plus any accrued interest. In this event, we will receive a full assignment and transfer of the mortgage and all securities held as collateral to the mortgage debt.”

[639]*639The very next, and last, subparagraph in the mortgage clause section, however, provides:

“Subrogation will not impair the right of the mortgagee to recover the full amount of the mortgagee’s claim.”

The question arises whether this nonimpairment provision limits the rights the insurer receives in the event of an assignment.

2. Contractual obligations of insurer to mortgagees. The mortgage clause set out above is widely known as the “standard mortgage clause.” See 4 Couch, Insurance § 65.32 (3d ed. 1997). See also Palmer Sav. Bank v. Insurance Co. of N. America, 166 Mass. 189, 193-195 (1896); Gibraltar Fin. Corp. v. Lumbermens Mut. Cas. Co., 400 Mass. 870, 871 (1987); Pierce v. Sentry Ins., 12 Mass. App. Ct. 124, 126-127 (1981).5 Under the standard mortgage clause, the contractual obligation of the insurer to the mortgagees is treated as one that is separate from the obligation of the insurer to the owner of the insured property. Though the policy is usually bought by the mortgagor, “[t]he effect of such a policy is the same as if the mortgagor had taken out the insurance in his own name, and then assigned it to the mortgagee,” except no act of the mortgagor defeats the mortgagee’s interest. Palmer Sav. Bank v. Insurance Co. of N. America, supra at 194. G. L. c. 175, § 99. Perretta v. St. Paul Fire & Marine Ins. Co., 106 Misc. 91, 100, 174 N.Y.S. 131, 136 (N.Y. Sup. Ct. 1919). 4 Couch, Insurance § 65.36.

Indeed, under the clause, a mortgagee is not merely a party with an interest, but is often the paramount party for whose benefit the insurance was obtained. In re McLean Indus., Inc., 132 B.R. 271, 279 (Bankr. S.D.N.Y. 1991). The purpose of the clause establishing a separate contractual relationship between an insurer and a mortgagee is to give the mortgagee better security by insulating it from something the mortgagor might do to invalidate the policy, like blowing up the insured premises, which is what the insured owner did in the instant case. Attleborough Sav. Bank v. Security Ins. Co., 168 Mass. 147, 149 (1897). Pierce v. Sentry Ins., supra at 127. Clemons v. American Cas. Co., 841 F. Supp. 160, 162 (D. Md. 1993). The importance of the separate contractual obligation of the insurer to [640]*640mortgagees is twice emphasized in G. L. c. 175, § 99, as appearing in St. 1951, c. 478, § 1, as amended by St. 1977, c.

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Bluebook (online)
708 N.E.2d 687, 46 Mass. App. Ct. 636, 1999 Mass. App. LEXIS 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/money-storemassachusetts-inc-v-hingham-mutual-fire-insurance-massappct-1999.