Vermont Investment Capital, Inc. v. Granite Mutual Ins.

705 F. Supp. 1019, 1989 U.S. Dist. LEXIS 1410, 1989 WL 11401
CourtDistrict Court, D. Vermont
DecidedFebruary 8, 1989
DocketCiv. A. No. 88-152
StatusPublished
Cited by4 cases

This text of 705 F. Supp. 1019 (Vermont Investment Capital, Inc. v. Granite Mutual Ins.) is published on Counsel Stack Legal Research, covering District Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vermont Investment Capital, Inc. v. Granite Mutual Ins., 705 F. Supp. 1019, 1989 U.S. Dist. LEXIS 1410, 1989 WL 11401 (D. Vt. 1989).

Opinion

[1020]*1020OPINION AND ORDER

BILLINGS, Chief Judge.

On April 1, 1986, Joseph Flanagan telephoned the Bouffard Insurance Agency in St. Johnsbury, Vermont to obtain a fire insurance policy covering premises in Lu-nenberg, Vermont. Flanagan was to purchase the property from Vermont Investment Capital (“VIC”) the next day. Pursuant to a purchase and sale agreement between the parties, VIC was to obtain a purchase money mortgage from Flanagan at the closing in the amount of $86,000 and Flanagan was to obtain insurance naming VIC as mortgagee. At about 9:00 a.m. the following morning, the policy was delivered to Flanagan. Sometime before the scheduled afternoon closing on the property, the house burnt to the ground. The closing did not take place.

The day after the fire, on April 3, 1986, Flanagan phoned the insurance agency to request that the policy be cancelled and to have the check he had written to cover the first premium returned to him. Apparently, Flanagan never returned the policy to the agent and the check was neither returned to Flanagan nor presented for payment. Nonetheless, the agent purported to cancel the policy at that time.

The policy states that it is effective as of 12:01 a.m. on April 2, 1986, and contains a “standard” or “union” mortgage clause naming VIC as mortgagee.1 VIC made a written claim on the policy which was initially denied by Granite Mutual on the ground that VIC did not have an insurable interest. The Small Business Administration, as receiver, filed suit on behalf of VIC seeking both a declaratory judgment that defendant is liable to it under the policy, and damages. Since the material facts were not in genuine dispute, both sides moved for summary judgment. Hearing was held on January 11, 1989, after which both parties submitted supplemental memo-randa.

In its memoranda, and at oral argument, defendant now admits that VIC did have an insurable interest. Defendant argues, however, that VIC failed to insure whatever interest it had. VIC contends that it had insured its interest as of 12:01 a.m. on April 1, 1986, by virtue of the fact that defendant had issued a policy effective at that time with full knowledge that VIC was an owner under contract to sell, whose interest would become that of mortgagee at the time of closing. Alternatively, VIC argues that it was specifically covered under the policy because the mortgage clause explicitly defined “mortgagee” to include “trustee” and VIC was a “trustee” under some uses of the term, particularly under the doctrine of equitable conversion. Defendant counters that VIC was never a mortgagee in any sense of the word because the mortgage relationship was never consumated due to the cancelled closing. It argues that neither Flanagan nor the [1021]*1021insurance agent intended to insure the property prior to the closing, and that Vermont law does not support VIC’s claim as a trustee.

DISCUSSION

Summary judgment may be granted only if the moving party can show that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ. P. 56(c). In its current posture, this case is particularly appropriate for resolution on summary judgment. No material facts are disputed; rather, disposition rides solely on the interpretation of the insurance policy issued to Flanagan.

Insurable Interest

As a preliminary matter, the Court agrees that VIC had an insurance interest at the time of the loss. It was the owner of the property under a contract to sell that placed the risk of loss on the seller prior to closing. VIC clearly could insure that risk; the question is whether it did. While it is true that Flanagan lacked an insurable interest at the time of loss, that fact alone would not preclude VIC’s recovery. Smith v. Union Ins. Co., 25 R.I. 260, 55 A. 715 (1903); 43 Am.Jur.2d Insurance § 940 at 965.

Effect of Flanagan’s Cancellation

In addition, we agree with the parties statements at argument that Flanagan’s purported cancellation of the policy has no effect on the outcome here. The “standard” or “union” mortgage clause creates an independent contract of insurance between the insurer and the mortgagee. United States v. Commercial Union Ins. Cos., 821 F.2d 164, 166 (2d Cir.1987) (interpreting Vermont law); 43 Am.Jur.2d Insurance § 1045 at 1046. The purpose of the clause is to protect the mortgagee’s interest from any act or omission of the mortgagor that might prevent the mortgagor’s recovery. Commercial Union, 821 F.2d at 166; Christopher & John, Inc. v. Maryland Casualty Co., 484 F.Supp. 609, 611 (S.D.N.Y.1980); 43 Am.Jur.2d Insurance § 1046 at 1048-51. Thus, the clause provides that denial of a claim to the insured shall not apply to a valid claim by the mortgagee if, inter alia, the mortgagee “pays any premium due under the policy on demand.” Further, the mortgagee is entitled to at least ten days notice before the policy can be cancelled.

Here, it is undisputed that VIC did not receive the requisite notice of cancellation, nor was it given opportunity to pay the premium due. Thus, VIC’s interest in the policy, if any, can not be avoided by Granite Mutual on account of Flanagan’s unilateral act of cancellation. In any event, Flanagan purported to cancel the policy after the loss. If the policy was effective at the time of the fire, Flanagan’s later cancellation would not affect a valid interest in the policy at the time of the loss.

To determine whether VIC’s interest in the property was insured at the time of loss, we must first determine whether the insurance policy was in effect prior to the closing. Second, we must determine whether VIC was a mortgagee within the meaning of the policy.

Effective Time of Policy

The first question would seem to be answered by the policy itself. It states that it is effective as of 12:01 a.m. on April 2,1986, and thus by its terms was effective at the time of loss. Granite Mutual argues that the parties did not intend the policy to be effective until the scheduled afternoon closing. Notwithstanding that possibility, however, we believe that the parol evidence rule bars extrinsic evidence concerning the effective time of the policy.

The parol evidence rule aims to ensure some measure of stability in commercial relations by preventing one party “ ‘to substitute his view of his obligations for those clearly stated.’ ” Garza v. Marine Transport Lines, Inc., 861 F.2d 23, 26-27 (2d Cir.1988) (quoting Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F.Supp. 987, 994 (S.D.N.Y.1968)). Unless a contract term is ambiguous, in which case extrinsic evidence may be received for the purpose of interpretation, see, e.g., Garza, 861 F.2d at 27, evidence of prior under[1022]*1022standings or negotiations may not be received “for the purpose of varying or contradicting the writing.” 3A Corbin, Contracts, § 573, at 357 (1960).

The parol evidence rule is operative in Vermont in the context of insurance contracts. Williams Mfg. Co. v. Insurance Co. of North America, 95 Vt. 134, 135, 113 A. 781 (1921).

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705 F. Supp. 1019, 1989 U.S. Dist. LEXIS 1410, 1989 WL 11401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vermont-investment-capital-inc-v-granite-mutual-ins-vtd-1989.