New England Environmental Technologies Corp. v. American Safety Risk Retention Group, Inc.

810 F. Supp. 2d 390, 2011 U.S. Dist. LEXIS 103813, 2011 WL 4336696
CourtDistrict Court, D. Massachusetts
DecidedSeptember 13, 2011
DocketCivil Action No. 09-10632-NMG
StatusPublished
Cited by5 cases

This text of 810 F. Supp. 2d 390 (New England Environmental Technologies Corp. v. American Safety Risk Retention Group, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New England Environmental Technologies Corp. v. American Safety Risk Retention Group, Inc., 810 F. Supp. 2d 390, 2011 U.S. Dist. LEXIS 103813, 2011 WL 4336696 (D. Mass. 2011).

Opinion

MEMORANDUM & ORDER

GORTON, District Judge.

Plaintiff New England Environmental Technologies Corporation (“NEET”) brings suit against American Safety Risk Retention Group, Inc., an insurance company, and American Safety Insurance Services, Inc., its program manager, (collectively, “American Safety”) for breach of an insurance contract. Various motions are pending before the Court.

1. Background

A. Factual Background

NEET is a family-owned, Massachusetts corporation with three full-time employees. It is engaged in the business of environmental consulting, Offering services such as environmental site assessment and remediation, underground storage tank testing and installation, and removal and disposal services.

NEET purchased several consecutive, “claims made” insurance policies from American Safety including: 1) Policy No. ENV012446-06-01 (March 2, 2006-March 2, 2007) (“the 06-01 Policy”, 2) Policy. No. ENV012446-07-02 (March 2, 2007-March 2, 2008) (“the 07-02 Policy”) and 3) Policy No. ENV012446-08-03 (March 2, 2008-March 2, 2009) (“the 08-03 Policy”).1 The consecutive policies provide various insurance coverages, including Commercial [394]*394General Liability Coverage and Environmental Consultant’s Professional Liability Coverage. Each policy contains a 30-day Automatic Extended Reporting Period (“AERP”).

In 1995, NEET was hired by Churchill Forge Properties (“CFP”) to install a containment structure for three above-ground fuel storage tanks at an apartment complex in Haverhill, Massachusetts. On March 28, 2007, fuel oil was observed leaking from a tank storage shed at the CFP apartment complex. The leak released approximately 780 gallons of fuel oil into the land and required the removal of approximately 300 cubic yards of contaminated soils and groundwater monitoring.

On February 7, 2008, counsel for CFP issued a demand letter to NEET pursuant to Mass. Gen. Laws ch. 21E, § 4A asserting that NEET had improperly installed the heating oil tanks at the CFP apartment complex and was legally responsible for remediating the oil contamination (“the CFP claim”). The letter demanded that NEET pay damages totaling almost $200,000 and requested a response within 45 days. CFP’s demand letter was received by a receptionist at NEET on February 14, 2008, but NEET’s owners were not informed of the demand until at least February 26, 2008.

Just after midnight, on March 2, 2008, the 07-02 Policy expired and the 08-03 Policy took effect. Four days later, on March 6, 2008, NEET forwarded CFP’s demand letter to its insurance agent, HUB International LLC, for transmission to American Safety which was done the following day, March 7, 2008. On March 26, 2008, American Safety issued a letter to NEET acknowledging receipt of CFP’s demand letter and reserving its rights pending the completion of a coverage investigation.

On July 7, 2008, CFP filed suit against NEET, Churchill Forge Properties v. New England Environmental Technologies Corporation, Massachusetts Superior Court Department for Essex County, Civil Action No. 08-1355 (“the underlying action”), making substantially the same allegations that it made in its demand letter. It also sought damages based on NEET’s alleged failure to respond to its demand letter within 45 days.

On July 31, 2008, American Safety denied coverage of the CFP claim on the grounds that 1) it was neither received nor reported during the term of the 06-01 Policy (March 2, 2006-March 2, 2007), 2) it was received by the insured during the term of the 07-02 Policy (March 2, 2007-March 2, 2008) but not reported until after the policy had expired (on March 7, 2008) and 3) it was reported during the term of the 08-03 Policy (March 2, 2008-March 2, 2009) but had been first made against the insured prior to the policy’s inception. The letter also stated that the AERP of the 07-02 Policy did not apply because “NEET maintained other similar insurance in effect after March 2, 2008.” The “other similar insurance” to which American Safety refers is its own 08-03 Policy.

B. Procedural History

On February 27, 2009, NEET filed suit against American Safety in Massachusetts Superior Court Department for Essex County, Civil Action No. 09-0383, alleging 1) breach of contract (Count I) and 2) unfair and deceptive trade practices in violation of Mass. Gen. Laws ch. 93A and 176D (Count III) and 3) the right to a declaratory judgment that American Safety is obligated to defend and indemnify NEET for claims made against NEET (Count II). In April, 2009, American Safety removed the case to this Court on the basis of diversity jurisdiction.

In November, 2009, NEET moved for partial summary judgment that American [395]*395Safety had a duty to defend against the CFP claim under the 07-02 Policy (Counts I and II). In December, 2009, American Safety opposed NEET’s motion and filed its own cross-motion for summary judgment, contending it had no duty to defend or indemnify and did not engage in any unfair or deceptive trade practices.2

On September 15, 2010, this Court issued a Memorandum and Order, 738 F.Supp.2d 249 (D.Mass.2010) (“the SJ M&O”) which held that: 1) American Safety had a duty to defend NEET under the 07-02 Policy and plaintiffs motion for partial summary judgment on the duty to defend was therefore, with respect to Counts I and II, allowed and 2) American Safety neither acted with bad faith nor engaged in unfair trade or settlement practices and defendant’s motion for summary judgment was therefore, with respect to Count III, allowed but otherwise denied. The Court denied the parties’ subsequent cross-motions for reconsideration.

Following the SJ M&O, the Court directed the parties to submit briefs and supporting documentation on or before October 18, 2010, with respect to the issue of damages for American Safety’s breach of the duty to defend. On that deadline, plaintiff moved for an order to enter judgment in the amount of $233,115.64 for damages for the breach of the duty to defend, which defendants opposed. Defendants also later moved to strike a paragraph of a declaration submitted by plaintiffs in support of the damages award.

On that same date, Churchill Forge Properties and Churchill Forge Associates II (collectively, “CFP”) moved to intervene and for judgment as a matter of law against American Safety in the amount of $253,940. American Safety opposed both motions and NEET submitted a statement without taking a position on the matter.

According to documentation submitted by CFP in support of its motion for judgment as a matter of law, CFP and NEET entered into a Settlement Agreement and Release dated August 25, 2010 (“the Settlement”) in which, inter alia, NEET agreed 1) to settle all claims of CFP, including those related to the underlying action, for $250,000 and 2) to assign to CFP any and all claims and/or rights to payment or indemnification of that amount that NEET “has or may have” under the insurance policies, including those NEET “has or may have in the future arising out of any failure on the part of [American Safety] to pay or indemnify NEET [or CFP] for that amount”.

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Bluebook (online)
810 F. Supp. 2d 390, 2011 U.S. Dist. LEXIS 103813, 2011 WL 4336696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-england-environmental-technologies-corp-v-american-safety-risk-mad-2011.