Northern Assurance Co. of America v. Keefe

845 F. Supp. 2d 406, 2012 A.M.C. 958, 2012 WL 603579, 2012 U.S. Dist. LEXIS 22586
CourtDistrict Court, D. Massachusetts
DecidedFebruary 23, 2012
DocketCivil Action No. 10-11998-DPW
StatusPublished
Cited by4 cases

This text of 845 F. Supp. 2d 406 (Northern Assurance Co. of America v. Keefe) 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
Northern Assurance Co. of America v. Keefe, 845 F. Supp. 2d 406, 2012 A.M.C. 958, 2012 WL 603579, 2012 U.S. Dist. LEXIS 22586 (D. Mass. 2012).

Opinion

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

The Northern Assurance Company of America (“Northern Assurance”) filed this action seeking declaratory judgment pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, that it is not obligated to indemnify Daniel J. Keefe, Jr., for any costs, expenses, or damages relating to the grounding of the M/V WILHELMINA under the Yacht Policy issued by Northern Assurance to Keefe. Keefe responded with six counterclaims, all relating to Northern Assurance’s failure to pay [409]*409what Keefe claims is owed under the insurance contract. The parties have filed cross-motions for summary judgment.

I. BACKGROUND

A. FACTUAL BACKGROUND

Daniel J. Keefe, Jr., is the owner of the yacht the M/V WILHELMINA. Since he obtained ownership of the yacht in the mid-^OOOs,1 he has maintained recreational yacht insurance coverage through Northern Assurance. The Yacht Policy covers “[ajccidental, direct physical loss of or damage to the insured property.” The Policy provides $265,000.00 in insurance.

The Policy includes a “Protection and Recovery Expenses” clause, stating that the insurer “will pay the reasonable costs ‘you’ incur to protect or recover the covered ‘yacht’ from further loss or damage following an insured loss.” The Policy also includes clauses providing coverage for, inter alia, “Commercial Towing and Assistance,” “Liability Insurance” (describing coverage for loss of life and bodily injury and property damage), and “Pollution Liability.” The Policy explicitly excludes coverage for “any loss, injury, damage or expense arising out of or during any illegal purpose on ‘your’ part or on the part of anyone using the insured property with ‘your’ permission.”

The Yacht Policy coverage was originally limited only to “private pleasure” excursions. The Policy states:

Coverage under this policy applies only while the covered “yacht” is used for private pleasure purposes. This includes recreational boating and leisure time activities. There is no coverage while the covered “yacht” is used for charter, hire, to carry persons or property for a fee or for any other commercial use unless prior written consent has been obtained from “us”. Commercial use includes use in any trade, occupation, or profession. Business entertainment for which there is no direct remuneration is private pleasure use.

Dkt. 1-2, p. 8.

In May, 2008, Keefe requested and Northern Assurance issued a Chartering Coverage Endorsement, adding breadth of coverage to the Policy. The Endorsement states:

You may charter the yacht described on the declarations page of this policy, subject to the following special terms and conditions:
1. NO MORE THAN 6 PASSENGERS may be carried on board the yacht.
2. You may not have more than 12 charters in one policy year.
3. With regard to Sections B-l — LIABILITY INSURANCE, B-2 — POLLUTION LIABILITY, and SECTION D — MEDICAL PAYMENTS, a deductible of $100.00 shall apply to all claims arising from any one accident or occurrence.
7. The NON-OWNED YACHT coverage provided in this policy will be null and void during the entire duration of any charter.
8. SECTION C — LONGSHORE AND HARBOR WORKERS’ COMPENSATION INSURANCE shall be null and void during the entire duration of any charter.
IF YOU VIOLATE ANY OF THESE TERMS AND CONDITIONS AT ANY TIME, THIS POLICY SHALL IMMEDIATELY BECOME NULL AND [410]*410VOID, AND SHALL REMAIN NULL AND VOID DURING THE TERM OF SUCH VIOLATION.

The coverage issued is the only charter coverage available through Northern Assurance. The Yacht Policy, with the Chartering Coverage Endorsement, was renewed and in effect for the time period of August 30, 2009 through August 30, 2010.

On August 21, 2010, Keefe agreed to charter the yacht for eighteen passengers.2 He did not obtain prior written consent for this number of passengers from the insurance company. During the Charter on August 21, 2010, the passengers, Keefe, and one additional crew-member were aboard.

While the yacht was engaged in the Charter, it grounded on a shoal known as Devil’s Back and became stuck. Keefe claims that at the time of the grounding there was not much damage to the hull. The passengers were removed after the grounding by a Massport vessel; none of the passengers was injured. After the passengers departed, the salvage personnel began to work. Keefe claims that as the tide receded after the passengers disembarked, the vessel laid over and that only then was the bottom of the boat punctured.

The United States Coast Guard investigated the grounding and fined Keefe for negligent operation and for “carrying passengers without a valid Certificate of Inspection.” The Coast Guard Report stated that “[t]he WILHELMINA has a 5lk' draft” and that “Devil’s Back is charted to have only a 1' depth and pierced the hull of the WILHELMINA just starboard of the centerline causing uncontrollable flooding.”

Keefe filed a Statement of Loss with the insurer on August 26, 2010, stating:

Vessel grounded on a rock outside of North Channel SE of # 5 while heading toward the channel. As the tide fell the boat listed to starboard and the rock penetrated the hull midship starboard side. Vessel was flooded as the tide came in. 18 persons and 2 crew were on board. All people were removed with no injury to report.

(original in mostly capital letters).

The vessel was hauled to Boston Harbor Marina & Shipyard on the day after the accident and remained there as of the filing of the motions before me. Keefe claims that the cost to repair the yacht is estimated to be $195,557.31 and the current value of the yacht is estimated to be $16,000.00. He claims that while the vessel has not been repaired, it has been cleaned and the engines have been pickled at a cost of $3,410.86. He claims that the storage bill for the yacht as of September, 2011, was approximately $11,000. Northern Assurance disputes these expenses, but does not provide an alternative statement as to what expenses and damages have actually been incurred.

On September 8, 2010, Northern Assurance sent Keefe a letter explaining that it was investigating his compliance with the Chartering Coverage Endorsement and reserving its rights to deny coverage. On September 27, 2010, Keefe (through counsel) sent Northern Assurance a demand letter pursuant to G.L. c. 93A demanding that Northern Assurance provide coverage for the loss and costs. On October 27, 2010, Northern Assurance responded to the demand letter and made no offer of [411]*411settlement. On November 15, 2010, Northern Assurance issued Keefe a Denial of Coverage letter.

B. PROCEDURAL HISTORY

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845 F. Supp. 2d 406, 2012 A.M.C. 958, 2012 WL 603579, 2012 U.S. Dist. LEXIS 22586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northern-assurance-co-of-america-v-keefe-mad-2012.