Massachusetts Appeals Court | Ruling of First Impression Holds Faulty Workmanship Without More is Not “Property Damage”
August 14, 2024 – In an insurance coverage action stemming from the construction of a new home in Marblehead, Massachusetts, Attorneys Michael Melville and Scott Ober successfully won an appeal related to an insurer’s duty to indemnify the general contractor. The homeowners sued a general contractor alleging issues throughout the home including structural defects, issues with a roof deck, siding issues, roofing issues, and mold.
Following a trial, the homeowners received an award for damages in excess of $272,000. Hassett | Donnelly filed an intervenor complaint in the action seeking declaratory judgment that the insurer did not have a duty to indemnify the defendant construction company under the policy for several reasons, including the argument that the faulty workmanship in building a new home was not “property damage” under the policy. Declaratory judgment was granted in favor of the insurer, but the homeowner appealed the decision. More than a decade of interest could have been awarded if the homeowners were successful with their appeal.
On August 14, 2024, the Appeals Court affirmed the lower court’s ruling and held, in an issue of first impression, that “construction defects, standing alone, do not constitute property damage within the meaning of a commercial general liability policy” and that the insurer had no duty to indemnify the general contractor. Plaintiff’s Motion for Reconsideration was denied. Application for Further Appellate Review is pending.
To read the full decision, click here. LAWRENCE H. LESSARD & another vs. R.C. HAVENS & SONS, INC., & others. 104 Mass.App.Ct. 572 (2024)
Massachusetts Appeals Court Affirms Summary Judgment for Town in Defamation | Civil Rights Suit
August 19, 2024 – In a Worcester Superior Court case defended by Attorneys Courtney Mayo and Wendy Quinn, Hassett | Donnelly prevailed in first obtaining summary judgment and then an affirmance by the Appeals Court.
Frank C. Chiodo, Jr., doing business as F.C. Chiodo, Jr. Excavating Company (Chiodo), filed suit against the Town of Bolton (Town) and the former Director of the Department of Public Works, Joseph Lynch, alleging defamation; violations of the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 11I; and intentional interference with advantageous relations; among other claims, arising from disputes about snowplowing and improper disposal of tree stumps following excavation of Chiodo’s property. The Superior Court allowed Defendants’ Motion for Summary Judgment on all counts and denied Chiodo’s Motion to Compel unredacted Town Select Board executive session meeting minutes, and Chiodo appealed.
On appeal, Chiodo argued that there were disputed facts to defeat summary judgment on the defamation, MCRA and advantageous relations claims, and that the Superior Court erred in denying the Motion to Compel. In a Rule 23.0 decision, the Appeals Court affirmed the Superior Court decisions and judgment in the Town’s and Lynch’s favor. The Appeals Court agreed that the summary judgment record did not establish a false statement of fact, as opposed to opinion, sufficient for a defamation claim. Chiodo did not allege that the snowplowing incident or the complaint about the improper disposal of tree stumps constrained him from speaking or petitioning the government for an MCRA claim. Chiodo’s claim of retaliation for prior speech was not cognizable under the MCRA. Further, Mr. Chiodo had no reasonable expectation of proving the essential elements of his intentional interference with advantageous relations claim where he voluntarily terminated his snowplowing contract with the Town in 2018 and continued to plow for the schools. Finally, the Appeals Court held that Chiodo did not show that the trial court abused its discretion in determining that the meeting minutes were protected by attorney-client privilege and irrelevant, so he waived the issue. Plaintiff’s Application for Further Appellate Review is pending.
To read the full decision, click here. Frank C. Chiodo, Jr. v. Town of Bolton & another. 104 Mass.App.Ct. 1118 (2024)
Connecticut Appellate Court Affirms Summary Judgment Based Upon Ongoing Storm Doctrine
August 27, 2024 – The case stemmed from the plaintiff’s fall on a public sidewalk adjacent to the defendant’s property. The plaintiff claimed that during a snowstorm he was caused to fall and sustain injuries on the sidewalk when he slipped on an accumulation of snow and ice that had been covered by snow from the ongoing storm. The plaintiff alleged that he sustained multiple bodily injuries but primarily a fracture of his left patella and the resulting permanent impairment of that knee.
Hassett | Donnelly moved for summary judgment on the grounds that the defendant owed the plaintiff no duty pursuant to the ongoing storm doctrine and the burden-shifting framework adopted by the Appellate Court in Belevich v. Renaissance I, LLC (2021). Under Belevich, the plaintiff’s own testimony that it was snowing at the time of his fall caused the burden on summary judgment to shift to him. As a result, the plaintiff was required to offer evidence that the ice on which he allegedly slipped formed before the ongoing storm.
The plaintiff offered two pieces of evidence that he argued were sufficient, when combined, to meet his burden of proof. First, the plaintiff offered his testimony that in the days leading up to his alleged fall, he saw water on the sidewalk in the vicinity of his fall. Second, he offered raw weather data that showed the low ambient temperatures during those days. Together, the plaintiff claimed, a reasonable jury could have concluded that the ice on which he slipped had formed days before his fall. In turn, the plaintiff argued that he had presented enough evidence to create a genuine issue of material fact as to when the ice on which he slipped had formed.
The trial court granted summary judgment. It held that the plaintiff’s testimony that it was snowing at the time of his fall shifted the burden to the plaintiff, and that the evidence he submitted was insufficient to create a genuine issue of material fact. The court reasoned that the plaintiff failed to offer admissible evidence that connected the water on the sidewalk and low temperatures to the existence of the ice on which he claimed he slipped. The court opined that the plaintiff’s theory based on that evidence would have required the jury to engage in impermissible speculation and conjecture. The plaintiff appealed.
On appeal, the plaintiff argued both that the defendant’s evidence was insufficient to shift the burden to the plaintiff, and that the plaintiff proffered evidence sufficient to create a genuine issue of fact as to whether the ice on which he slipped pre-existed the ongoing storm. Because the standard of review of a trial court’s decision to grant a motion for summary judgment is plenary, the Appellate Court, like the trial court, assessed the evidence submitted by the parties to determine whether a genuine issue of material fact existed.
The Appellate Court agreed with the trial court’s reasoning and conclusions. At oral argument before the Appellate Court, plaintiff’s counsel conceded that his client’s testimony that it was snowing when he fell caused the burden on summary judgment to shift from the defendant to the plaintiff. Still, the plaintiff argued that he presented evidence from which a reasonable jury could infer that the ice on which he slipped had formed from the water on the sidewalk and the low temperatures in the days before his fall. The Appellate Court was unpersuaded. The Court reiterated the precedent that even if the plaintiff had testified he saw ice in the general vicinity of the sidewalk days earlier, not merely water, the plaintiff’s evidence still would not have created a genuine issue of material fact. A jury still would have been left to speculate about how and when the ice formed and, therefore, the plaintiff failed to satisfy his burden.
The Appellate Court affirmed the trial court’s decision to grant summary judgment in the defendant’s favor.
To read the full decision, click here. Carty v. Merchant 99-111 Founders, LLC, 227 Conn. App. 683 (2024).
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