Preferred v. The Travelers
This text of Preferred v. The Travelers (Preferred v. The Travelers) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Bluebook
Preferred v. The Travelers, (1st Cir. 1997).
Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 97-1553
PREFERRED MUTUAL INSURANCE COMPANY,
Plaintiff, Appellant,
v.
THE TRAVELERS COMPANIES,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge] ___________________
[Hon. Nancy Gertner, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Aldrich, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
____________________
Marie Cheung-Truslow with whom Roger A. Emanuelson and Lecomte, ____________________ ____________________ ________
Emanuelson, Motejunas & Doyle were on brief for appellant. _____________________________
Michael J. Eisele with whom David C. Boch and Bingham, Dana & __________________ ______________ ________________
Gould were on brief for appellee. _____
____________________
October 3, 1997
____________________
ALDRICH, Senior Circuit Judge. On January 20, _____________________
1995, an oil fire broke out in the boiler room of the Kimball
Towers condominium in Springfield, Massachusetts, that caused
extensive damage from smoke, soot and heat. Kimball Towers
Condominium Association (Kimball) was insured by Preferred
Mutual Insurance Company (Preferred) under a Business Owners
Special Property Policy that covered its property broadly,
with a limit of $11,340,000 and an annual premium of $40,484.
With some exceptions, the policy did not cover steam or hot
water boilers and their equipment. Kimball was also insured
by Travelers Company (Travelers) under a Boiler and Machinery
Policy. Boiler provisions complementary with Preferred's
have been noted. Travelers' policy had no dollar limitation;
the annual "Provisional Premium"1 was $875. Preferred paid
this loss,2 in the amount of $357,279, and now sues Travelers
for this amount as the "primary insurer," or, at least, for a
share. A condition precedent is that Travelers would have
been liable for the loss. The district court held that there
was no such coverage, so that neither alternative was
correct, and granted summary judgment to Travelers in an
extensive opinion. See Preferred Mut. Ins. Co. v. Travelers ___ _______________________ _________
Cos., 955 F. Supp. 9 (D. Mass. 1997). Without deciding, it ____
____________________
1. The elasticity related to offered extensions not
subscribed to by Kimball, and not here relevant.
2. No point has been made by it of any loss to Kimball's
boiler and accessory equipment.
-2-
assumed that Travelers' policy's general provisions covered
the loss -- an assumption not contested, and that we adopt --
but concluded that it fell within the stated exclusions. On
this basis we affirm.
The Facts _________
On summary judgment we of course take the facts
most favorably to plaintiff Preferred, but review the court's
legal conclusions de novo. See, e.g., Dominique v. Weld, 73 _________ _________ ____
F.3d 1156, 1158 (1st Cir. 1996); E.E.O.C. v. Steamship Clerks ________ ________________
Union, Local 1066, 48 F.3d 594, 602-03 (1st Cir.), cert. __________________ _____
denied, 116 S. Ct. 65 (1995). Construction of insurance ______
contracts and application of their terms to established facts
are matters of law, ultimately for us. See Commercial Union ___ ________________
Ins. Co. v. Walbrook Ins. Co., 7 F.3d 1047, 1050 (1st Cir. _________ __________________
1993); Falmouth Nat'l Bank v. Ticor Title Ins. Co., 920 F.2d ___________________ ____________________
1058, 1061 (1st Cir. 1990).
The fire, according to Preferred, occurred in the
following manner. A leaky seal in the fuel pump, that
supplied oil to the burner that heated the boiler, allowed
oil to be propelled, with air, into the burner tube. Here it
caught fire. This fire caused a melt, allowing the burner to
fall, damaging the oil line. This released oil, fed by
gravity from the storage supply, that caught fire and burned
until ultimately extinguished by the fire department.
-3-
The relevant Travelers' policy provisions (quoted
out of order) are these.
A. COVERAGE
We will pay for direct damage to Covered
Property caused by a Covered Cause of Loss.
1. Covered Property ________________
Covered Property, as used in this
Coverage Part, means any property that:
a. You own;
. . . . .
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Commercial Union Insurance Co. v. Walbrook Insurance Co., Ltd.
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955 F. Supp. 9 (D. Massachusetts, 1997)
Jussim v. Massachusetts Bay Insurance
610 N.E.2d 954 (Massachusetts Supreme Judicial Court, 1993)
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