Wilfredo Nunez v. Merrimack Mutual Fire Insurance Co.

88 A.3d 1146, 2014 WL 1509206, 2014 R.I. LEXIS 42
CourtSupreme Court of Rhode Island
DecidedApril 17, 2014
Docket2013-129-Appeal
StatusPublished
Cited by2 cases

This text of 88 A.3d 1146 (Wilfredo Nunez v. Merrimack Mutual Fire Insurance Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilfredo Nunez v. Merrimack Mutual Fire Insurance Co., 88 A.3d 1146, 2014 WL 1509206, 2014 R.I. LEXIS 42 (R.I. 2014).

Opinion

OPINION

Chief Justice SUTTELL,

for the Court.

The plaintiffs, Wilfredo Nunez and Janette Campos, appeal from summary judgment entered against them and in favor of Merrimack Mutual Fire Insurance Company (Merrimack or defendant). This case came before the Supreme Court for oral argument, pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After considering the written and oral submissions of the parties and after reviewing the record, we conclude that cause has not been shown and that this ease may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

I

Facts and Procedural History

The following facts are undisputed. On July 21, 2004, Wilfredo Nunez and Janette Campos entered into a purchase and sales agreement for a home located at 25 Oak St. in the City of Woonsocket. A pre-closing inspection of the home revealed corrosion on the oil heating system in the basement. The seller agreed to replace the heating system prior to the sale of the home and hired a third party 1 to perform the work. Although the third party replaced the boiler and the oil tank, the oil feed line buried beneath the concrete floor in the basement, which transfers the oil from the tank to the burner, was not replaced.

On January 19, 2006, Nunez’s sister-in-law accidentally shut off the boiler while in the basement doing laundry. Nunez then called his fuel oil dealer, Petro Oil, which responded to the call and noticed the smell of oil and staining at the feed line near the boiler. As a result of this discovery, plaintiffs initiated claims under their homeowners’ insurance policy issued by Merrimack.

Merrimack’s investigator, Richard Mansfield of Aegis Engineering Services, Inc. (Aegis), inspected the site in plaintiffs’ basement and noted in his written report that “[t]he leak may have occurred over time and possibly prior to the insured[s’] purchase of the property.” Mansfield further noted that “had [the system] been installed properly and in accordance with municipal codes, the feed line would have been replaced and the leak would likely have been eliminated or prevented prior to the insured[s’] purchase of the property.” On February 1, 2006, Merrimack’s testing firm, Taraco Precision Testing, Inc. (Tara-co), pressure-tested and removed the feed line. In a letter to Merrimack’s adjuster dated February 6, 2006, Mansfield reported the findings of Aegis and Taraco. The letter stated that the feed line was “severely corroded in several areas” and that “the corroded area[ ] was moist with fuel *1148 oil.” Mansfield’s letter further noted that “[his] observations and the Taraco pressure test indicate that the feed line has a very slow, weeping, corrosion leak * * *. It appears that the line has probably been leaking slowly for some time and was likely leaking before the insured purchased the home in July 2004.” Merrimack thereafter denied plaintiffs’ claim.

As grounds for denial, Merrimack relied upon a provision in plaintiffs’ insurance policy that purports to exclude loss caused by corrosion. The pertinent language of the insurance policy reads as follows:

“SECTION I — PERILS INSURED AGAINST
“COVERAGE A — DWELLING and COVERAGE B — OTHER STRUCTURES
“We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. We do not insure, however, for loss:
U * ‡ ‡
“2. Caused by:
* * :¡:
“e. Any of the following:
“(8) Smog, rust or other corrosion, mold, wet or dry rot[.]”

On May 11, 2007, plaintiffs filed a complaint against Merrimack in Superior Court alleging breach of contract. On April 29, 2010, Merrimack filed a motion for summary judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. 2 On April 5, 2011, after a brief hearing on the motion, the trial justice issued a bench decision granting Merrimack’s motion for summary judgment and dismissing plaintiffs’ claims with prejudice. Final judgment entered on April 15, 2011.

The trial justice found that the language of the insurance policy clearly and unambiguously stated that “there is no coverage for loss caused by wear and tear, marring, deterioration and discharge of a pollutant.” In granting Merrimack’s motion for summary judgment, the trial justice found that the undisputed evidence indicated that “plaintiffs’ claim was caused by gradual corrosion of an oil fuel feed line, not a sudden or accidental loss, and therefore is barred by the clear and unambiguous terms of the policy.” The plaintiffs thereafter filed a timely notice of appeal.

II

Standard of Review

“This Court reviews the grant of summary judgment ‘de novo, employing the same standards and rules used by the hearing justice.’ ” Miller v. Saunders, 80 A.3d 44, 47-48 (R.I.2013) (quoting Carreiro v. Tobin, 66 A.3d 820, 822 (R.I.2013)). “We will affirm a lower court’s decision only if, after reviewing the admissible evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Id. at 48 (quoting Carreiro, 66 A.3d at 822). “[T]he nonmoving party bears the burden of proving by competent evidence the existence of a disputed issue of material fact * * Id. (quoting The Law Firm of Thomas A. Tarro, III v. Checrallah, 60 A.3d 598, 601 (R.I.2013)).

*1149 III

Analysis

The plaintiffs argue on appeal that the “cause of this loss is indisputably the unexpected, cracking/bulging or failure of [plaintiffs’] hot water system,” and that the loss is therefore covered under their policy. In support, plaintiffs maintain that their loss is covered by a provision in the insurance policy, which provides in pertinent part:

“SECTION I-PERILS INSURED ' AGAINST
“We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. We do not insure, however, for loss:
“2. Caused by:
“e. Any of the following:

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Bluebook (online)
88 A.3d 1146, 2014 WL 1509206, 2014 R.I. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilfredo-nunez-v-merrimack-mutual-fire-insurance-co-ri-2014.