Ward v. Liberty Mutual Insurance

7 Mass. L. Rptr. 389
CourtMassachusetts Superior Court
DecidedAugust 8, 1997
DocketNo. 921797
StatusPublished

This text of 7 Mass. L. Rptr. 389 (Ward v. Liberty Mutual Insurance) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ward v. Liberty Mutual Insurance, 7 Mass. L. Rptr. 389 (Mass. Ct. App. 1997).

Opinion

Cowin, J.

[390]*390BACKGROUND

The plaintiffs brought this action against the defendants Brookline Ice and Coal Co. (BICC) and Liberty Mutual Insurance Co. (Liberty) for damages for injuries arising from the wrongful delivery of oil to 20 Elm Street, Brookline (the premises) by BICC and the resulting fire at said premises. The plaintiffs sought recoveiy for negligence, breach of contract, trespass, negligent infliction of emotional distress, violation of G.L.c. 21E and violation of G.L.c. 93A. Individually, plaintiffs Martha Wisler and William Jack Ward claimed damages for emotional distress injuries and for personal property and rental income losses. As parents and representatives of Nicholas Ward, John Ward and Olivia Ward, Martha Wisler and Jack Ward also sought recovery for emotional distress injuries incurred by their children. Finally, Ping Condominium Association3 also claimed physical damage to the condominium structure.

The matter was tried before the Court and a jury from November 13, 1995 through December 7, 1995. Before trial, the Court bifurcated the G.L.c. 93A claim, reserving it for a later non-jury hearing.

After three and one half weeks of trial, the jury returned a verdict awarding $85,000 to Martha (the wife) and $15,000 to Nicholas (one of the children). In reaching their determination, the jury answered the following special questions:

Q. 1. Have the plaintiffs been fairly compensated for any damages sustained by them, which were causally related to the fire incident on December 1, 1989?
Q.2. If you[r] answer to question 1 was no, what additional amount will fairly compensate each of the following for any damages causally related to the events in issue?

After the second question, each plaintiff was individually listed and blank spaces were provided for any amounts that might be awarded. No damages were awarded to Jack, Martha’s husband, or any of the children other than Nicholas. Ping Condominium Association also recovered no damages.

After trial, Liberty moved for dismissal of the plaintiffs’ G.L.c. 21E claim for costs and attorneys fees. After a hearing on this issue on June 12, 1996, this Court issued a memorandum and order that fees were not to be awarded [5 Mass. L. Rptr. No. 32, 725 (November 11, 1996)].

The latest chapter in this case was a six-day jury-waived trial held by the Court June 13-June 20, 1997 on plaintiffs’ claims for damages against Liberty pursuant to G.L.c. 93A and c. 176D and against BICC for damages pursuant to G.L.c. 93A.4 The witnesses who testified at this trial were Martha Wisler; Mr. Michael Brown, the insurance adjuster for Liberty Mutual; Augustine Signore, the owner of the defendant BICC; Andrew Patey, an oil delivery driver in the employ of BICC; and Richard Grahn, Esq., an attorney representing the plaintiffs in connection with this matter.

FINDINGS OF FACT

Based upon the evidence presented at trial, the reasonable inferences to be drawn therefrom, and evaluation of the credibility of the witnesses, I find as follows.

1. The plaintiffs Martha Wisler (Ms. Wisler) and Jack Ward (Mr. Ward) (collectively the Ward-Wislers) and their three children lived at 20 Elm Street, Brook-line. The building in which they lived was formerly a two-family house that was converted into two condominiums: the plaintiffs’ unit (20 Elm Street) and the adjacent unit (18 Elm Street). Ping Condominium Association was the condominium homeowners’ association for the two units and consisted of the plaintiffs and the owners of 18 Elm Street, Nan Stromberg (Stromberg) and Barbara Butwinick (Butwinick).

2. The heating system for 18 and 20 Elm Street was converted from oil to gas heat in the 1980’s. The oil tank was removed; the fill pipe, however, was not removed and was left uncapped.

3. On December 1, 1989, Andrew Patey (Patey), an oil delivery driver for defendant BICC, mistakenly made a delivery of home heating oil to the fill pipe connected to the basement of the Stromberg-Butwinick unit at 18 Elm Street. The oil spilled into the basement of 18 Elm Street and ignited, causing a fire in the basement of 18 Elm Street only and the release of smoke into both units.

4. The Brookline Fire Department was called to the site and extinguished the fire.

5. All of the residents of both 18 and 20 Elm Street safely left the building.

6. Patey, the BICC driver, initially lied and denied having delivered oil to the home, but a few days later admitted that he had in fact delivered the oil to 18 Elm Street by mistake.

7. The plaintiffs vacated 20 Elm Street and moved to rented premises at 31 Linden Street, Brookline.

8. Defendant Liberty Mutual Insurance Co. (Liberty) insured BICC.

9. Liberty assigned Michael Brown (Brown) to handle the plaintiffs’ damage claim against its insured.

10. At the suggestion of Brown, the plaintiffs filed claims with Metropolitan Insurance Co. (Metropolitan), which provided their homeowners’ insurance, and with Great American Insurance Co. (Great American), which provided insurance coverage for the building structure.

11. After the fire, it was necessary to remove the oil-contaminated soil from the premises. The plaintiffs, through their attorney Richard Grahn, selected and hired SEA Consultants (SEA) to manage and coordinate the oil remediation project. Liberty and [391]*391Great American agreed to the plaintiffs’ selection of SEA.

12. On January 31, 1990, SEA provided a written estimate of expected work involved in the remediation project. SEA estimated that total costs for the project would be in the range of $67,550 to $79,550.

13. Brown and a representative of Great American authorized SEA to proceed with the project as outlined in SEA’s January 31, 1990 correspondence.

14. In December 1989 and January 1990, Liberty accepted the liability of its insured and agreed to pay for the reasonable damages causally related to the incident.

15. Within two weeks after the fire, Liberty hired a construction expert, Bessom and Tilton, to inspect the premises and provide an estimate for repair of 20 Elm Street and structural work to the building (excluding environmental related work). Bessom and Tilton advised Liberty that the cost of repairing 20 Elm Street would be approximately $15,979.

16. Liberty also hired Geraghty and Miller (G&M), an environmental expert, to review the work of SEA. G&M questioned SEA’s accounting and bookkeeping procedures and some of the construction methods used by SEA, but agreed that the construction methods used by SEA were generally acceptable.

17. Brown inspected 20 Elm Street on December 11, 1989 and December 19, 1989 and observed minimal damage, except for smoke and soot.

18. It was agreed that the plaintiffs would submit claims to their own insurers (Great American and Metropolitan) and these insurers would make appropriate payments to the plaintiffs. The plaintiffs’ insurers planned to resolve any subrogation issues with Liberty at a later date.

19. The following payments were made by Great American in regard to work at 20 Elm Street: January 10, 1990, $3,187.25 to Service Master by Gilmore Bros.; January 11, 1990, $30,000 to Enpro; and April 20, 1990, $2,715 to Service Master by Gilmore Bros.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Spring v. Geriatric Authority of Holyoke
475 N.E.2d 727 (Massachusetts Supreme Judicial Court, 1985)
Bressel v. Jolicoeur
609 N.E.2d 94 (Massachusetts Appeals Court, 1993)
Entrialgo v. Twin City Dodge, Inc.
333 N.E.2d 202 (Massachusetts Supreme Judicial Court, 1975)
Clegg v. Butler
424 Mass. 413 (Massachusetts Supreme Judicial Court, 1997)
Parker v. D'Avolio
664 N.E.2d 858 (Massachusetts Appeals Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
7 Mass. L. Rptr. 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-liberty-mutual-insurance-masssuperct-1997.