National Union Fire Insurance v. Greenberg

386 N.E.2d 765, 7 Mass. App. Ct. 869

Opinion

Greenberg, the defendant, appeals from a summary judgment entered against him under Mass.R.Civ.P. 56, 365 Mass. 824 (1974). The affidavit in support of the plaintiffs motion for summary judgment and the defendant’s counter affidavit raise a genuine and material issue of fact: whether the defendant, a lawyer, had notice, when he received settlement proceeds on behalf of a client whom he represented in a motor vehicle tort action, of the plaintiff National Union Fire Insurance Company’s subrogation rights to the property damage component of the aggregate settlement proceeds. Whether Greenberg knew of the plaintiffs subrogation claim would have been decisive. General Exch. Ins. Corp. v. Driscoll, 315 Mass. 360 (1944). The plaintiffs affidavit and the defendant’s counter affidavit put that very question in issue, and the defendant was, therefore, entitled to a hearing on the merits. Stetson v. Selectmen of Carlisle, 369 Mass. 755, 763-764 (1976). Perry v. Schlaikjer, 5 Mass. App. Ct. 866 (1977). Kaplan v. Birger, 5 Mass. App. Ct. 878 (1977).

Judgment reversed.