Phenix Mut. Fire Ins. Co. v. Doray

Maine Superior

Phenix Mut. Fire Ins. Co. v. Doray

DecidedNovember 18, 2012

DocketCUMcv-11-33

StatusUnpublished

This text of Phenix Mut. Fire Ins. Co. v. Doray (Phenix Mut. Fire Ins. Co. v. Doray) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Phenix Mut. Fire Ins. Co. v. Doray, (Me. Super. Ct. 2012).

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Opinion

STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland Docket No.: BCD-C0llfSS Ll H d. rt.h .... {v1_ r-r _,. "ij r. )1 /'1"'() .··.,.·v :·' • ._ 1~ ) PHENIX MUTUAL FIRE ) INSURANCE COMPANY, ) ) Plaintiff ) ) v. ) ) SALLY DORAY, ) ) Defendant )

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

This matter is before the Court on the cross-motions for summary judgment

filed by Plaintiff Phenix Mutual Fire Insurance Company (Phenix) and Defendant Sally

Doray. Both motions focus on the issue whether Defendant's property at 175

Dickenson Road in Wiscasset, Maine was her "residence premises" for purposes of

coverage under her homeowner's insurance policy with Phenix as ofNovember 4, 2009,

when a fire occurred at that property.

FACTS

The following facts are undisputed except where noted. Sally Doray owns

property at 175 Dickenson Road in Wiscasset, Maine (the Property), where a fire

occurred on November 4, 2009. At the time of the fire, she was the named insured on

Homeowners' Policy No. 1103208 (the Policy) issued by Phenix, which listed the

Property as the insured "residence premises".

Before 2000, Ms. Doray worked at the Maine Yankee power plant in Wiscasset.

During While working at Maine Yankee, she lived at the Property and commuted to

work every day. When Maine Yankee closed in 2000, she took a job with Bartlett

1 Nuclear that called for her to travel to different locations to work. The longest of these

assignments lasted nine months. After each assignment she would return to the

Property.

In 2006, Ms. Doray took a job at the Vermont Yankee nuclear power plant in

Vernon, Vermont, where she worked until March 5, 2011. When she began work at

Vermont Yankee, she informed her new employer that her plan was to work for

Vermont Yankee for five years from her date of hire. After her employment with

Vermont Yankee was over, Ms. Doray intended to return to the Property and live there

full-time. 1

During Ms. Doray's employment at Vermont Yankee, she was required to live

within 20-SO minutes of the Vermont Yankee facility. She met this requirement initially

by renting a house in Brattleboro, Vermont, and later purchasing a trailer in Hinsdale,

New Hampshire. When she was first employed at Vermont Yankee, Doray would

return to the Property often, but as time went on, she returned less frequently. Still,

she travelled back to the Property whenever she had the opportunity. 2 When she would

go home to Maine, she would first go the Property and then travel to visit family and

friends. In her absence the Property was never unoccupied or vacant, and in 2009,

Doray spent approximately 50 nights there.

Doray asserts that she never considered any of the other properties she owned

or co-owned her primary residence. She notes that some of her possessions-including

possessions of sentimental value such as family photographs-remained throughout the

1 Phenix does not dispute this fact, but points out that she was aware of Vermont Yankee's requirement that she live within 20-30 miles of the plant when she began employment there. 2 Phenix does not dispute this fact, but it points out that Doray had few breaks from work in which she

could return to the Property.

2 years at the Property, and that she always had clothing, jewelry and personal grooming

items at the Property, along with her own bed and bureau.

Phenix contends that by moving to Vermont and New Hampshire to work,

having mail sent to other addresses, and insuring a property at another address, Ms.

Doray did not intend for the Property to remain her primary residence. Phenix also

points out that she obtained a New Hampshire driver's license while she was working

for Vermont Yankee.

The primary factual disputes between the parties center on how often Ms. Doray

returned to the Property during her employment out of state, and how many nights she

stayed there during the year preceding the fire. However, it is undisputed that she

returned regularly to the Property; that she always kept clothing and many other

possessions at the Property, and that she stayed at the Property about 50 nights during

the year before the fire.

DISCUSSION

1. The Framework for this Decision

It is significant that the parties have presented this issue to be resolved on cross-

motions for summary judgment. From the outset, when the parties proposed this

approach in a telephonic conversation, the court pointed out that, to be sure of the case

being resolved on cross-motions, the parties would need to stipulate to all relevant facts.

See Phila. Indem. Ins. Co. v. Farrington, 2012 ME 23, ~4, 37 A.2d 305, 306 (case

decided on cross-motions based on stipulation to the relevant facts). The parties

assured the court that they anticipated filing an agreed-on statement of material facts.

Later, the parties advised the court that they had been unable to do so, but still were

seeking the issue to be resolved on cross-motions without a trial or evidentiary hearing.

3 The cross-motion briefing resulted in the parties' submittal of separate

statements of material fact, with some areas of disagreement. At oral argument on the

motion, the court noted the factual disagreements and again raised the question whether

the case should be decided on cross-motions. Counsel for both parties reiterated their

view that the coverage issue could and should be adjudicated on cross-motions, and that

the court had before it all facts necessary for a decision.

A similar situation arose in The Mearl Corp. v. State Tax Assessor, 482 A.2d

(Me.1984). The Superior Court was presented with cross-motions but with competing

statements of material facts. The court elected to deny both motions. The Law Court

commented as follows:

When parties seek to avoid the need for a trial, and to place the matter in controversy before the court for final resolution as a pure question oflaw, the proper procedure is a submission ofthe case upon an agreed statement offacts. See Pelletier v. Dwyer, 334 A.2d 867, 871-72 (Me. 1975); Public Finance Corp. v. Scribner, 159 Me. 150, 152, 189 A.2d 368, 368-69 ( 1963). As this Court stated in Scribner: The justice to whom a case is submitted upon an agreed statement cannot properly add or subtract from the facts thus agreed upon but must apply the applicable law to that which is presented to him. 59 Me. at 152, 189 A.2d at 369. This case, however, was not submitted upon an agreed statement, and the presiding justice was not bound "to apply the applicable law to that which [was] presented to him." Id. Instead, the presiding justice was free to determine that material issues of fact other than those stipulated to remained to be resolved, and to deny both cross motions for summary judgment. See M.R. Civ. P. 56( c). Accordingly, the parties did not submit the case for a final adjudication.

The court has considered whether to deny both cross-motions, as did the trial

court in Mearl, based on the absence of an agreed-on statement of facts. However, based

on the parties' submittals, the court agrees that the relatively few disputed facts are not

material for purposes of summary judgment.

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