Olivieri v. Generali Insurance (In re Olivieri)

238 B.R. 1, 1999 Bankr. LEXIS 1056
CourtUnited States Bankruptcy Court, D. Rhode Island
DecidedAugust 6, 1999
DocketBankruptcy No. 97-14387; Adversary No. 98-1152
StatusPublished
Cited by1 cases

This text of 238 B.R. 1 (Olivieri v. Generali Insurance (In re Olivieri)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olivieri v. Generali Insurance (In re Olivieri), 238 B.R. 1, 1999 Bankr. LEXIS 1056 (R.I. 1999).

Opinion

DECISION & ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT

ARTHUR N. VOTOLATO, Bankruptcy Judge.

Heard on the Plaintiffs’ Motion for Partial Summary Judgment against Generali Insurance Co. and International Excess & Treaty Managers, Inc. Upon consideration of the papers and the arguments and for the reasons discussed below, the Plaintiffs’ Motion for Partial Summary Judgment is GRANTED as to liability.

BACKGROUND

Paul Olivieri owns real estate located at 1532 Main Street, Coventry, Rhode Island. The property is encumbered by a first mortgage to Coventry Credit Union (hereinafter “CCU”) in the amount of $200,000. On October 22, 1997, Olivieri filed a Chapter 13 case and plan under which the real estate was to be sold to the Defendant, 1532 Main Street, LLC, for $500,000. The proceeds would be used to pay CCU in full, as well as a 100% dividend to unsecured creditors. The Purchase and Sale Agreement required 1532 Main Street to provide fire insurance covering the subject property.

On January 27, 1998, an insurance binder was issued by Generali Insurance Co. (hereinafter “Generali”) indicating that the property was insured for $200,000, and listing CCU as mortgagee. On September 14, 1998, the main building was destroyed by fire, and Generali denied coverage alleging that the policy had been canceled in July 1998. CCU contends that: (1) it never received notice of the cancellation; and (2) Generali failed to effectively cancel the policy under Rhode Island law because it failed to send the notice of cancellation to CCU via certified mail, return receipt requested, pursuant to R.I.Gen.Laws § 27-5-3.4. Generali concedes that it did not send the cancellation notice to CCU via certified mail, but argues that its notice to CCU is valid under the policy and under Rhode Island insurance laws. Generali also argues that the Debtor has no standing to have this claim adjudicated before the bankruptcy court, because the Debtor is not a party to the insurance policy.

DISCUSSION

In considering requests for summary judgment, courts in this Circuit use the following guidelines:

[Sjummary judgment should be bestowed only when no genuine issue of material fact exists and the movant has successfully demonstrated an entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c). As to issues on which the movant, at trial, would be obligated to carry the burden of proof, he initially must proffer materials of evi-dentiary or quasi-evidentiary quality ... [3]*3that support his position.... When the summary judgment record is complete, all reasonable inferences from the facts must be drawn in the manner most favorable to the nonmovant.... This means, of course, that summary judgment is inappropriate if inferences are necessary for the judgment and those inferences are not mandated by the record.

Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir.1994) (citations omitted) (footnote omitted). In this case there are no genuine issues of material fact in dispute and the matter is ripe for partial summary judgment on the issue of liability-

Initially, Generali argues that the Debtor lacks standing to bring this adversary proceeding on the ground that the Debtor is not a party to the insurance policy. I disagree with this argument for the reason that, in a bankruptcy context, the outcome of this (related to) litigation clearly will affect the rights of creditors. If Generali is liable to CCU under the policy, the secured claim of CCU against the estate would be satisfied and the real property would be unencumbered, allowing it to be sold with all of the proceeds available to general creditors. See Work/Family Directions, Inc. v. Children’s Discovery Ctrs., Inc. (In re Santa Clara County Child Care Consortium), 223 B.R. 40, 45 (1st Cir. BAP 1998) (“The jurisdiction of the bankruptcy courts to hear related matters is broad but not unlimited.... There must be some nexus between the “related proceeding” and the title 11 case for the bankruptcy court to have subject matter jurisdiction.... Thus, ‘[a]n action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.’ ” quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3rd Cir. 1984)).

Additionally, the subject property is property of the bankruptcy estate, and the proceeds of any recovery under the policy are property of the estate. See Plaza at Latham Assocs. v. Citicorp North America, Inc. (In re Interstate Dept. Stores, Inc.), 150 B.R. 507, 513 (N.D.N.Y. 1993). These factors are sufficient to confer standing upon the Debtor to have this matter adjudicated in this forum.

The substantive dispute centers around the notice required to effectuate cancellation of the policy, under R.I.Gen.Laws § 27-5-3.4. This section states:

(a) A company issuing any policy of insurance which is subject to cancellation or nonrenewal by the company shall effect cancellation or nonrenewal by serving the notice thereof provided by the policy. That notice shall be delivered in hand to the named insured, or be left at his or her last address as shown by the company’s records, or, if its records contain no last address, at his or her last business, residence, or other address known to the company, or be forwarded to that address by certified mail, return receipt requested. A return receipt from the United States postal service showing receipt of the notice at the address of the insured stated in the policy shall be sufficient proof of notice. If the company does not receive a return receipt from the United States postal service within ten (10) days, then the company may forward the notice by first class mail and maintain proof of mailing of the notice to the insured in the ordinary course of the insurer’s business, and this proof of mailing shall be sufficient proof of notice.
(b) If a policy is made payable to a mortgagee or any person other than the named insured, notice shall be given as provided in subsection (a) to the payee as well as to the named insured.

R.I.Gen.Laws § 27-5-3.4. Generali, focusing only on the first sentence of the statute, argues that cancellation is effective “by serving the notice thereof provided by [4]*4the policy.” The cancellation language in the policy mirrors the language of R.I.Gen. Laws § 27-5-3 which provides:

The form of the standard fire insurance policy of the state of Rhode Island ... shall be as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
238 B.R. 1, 1999 Bankr. LEXIS 1056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olivieri-v-generali-insurance-in-re-olivieri-rib-1999.