OPINION AND ORDER

GEORGE O'TOOLE JR., District Judge

For purposes of the pending motion of the defendant for summary judgment, the following facts appear to be undisputed, except where noted:

The plaintiffs, Scott and Helena David, were insured under a homeowner's policy issued by the defendant Hingham Mutual Fire Insurance Company ("Hingham Mutual"). In September 2005, the Davids reported a theft loss within the scope of the policy's coverage to their insurance agent, who passed it on to Hingham Mutual. John Crenshaw, an adjustor hired by Hingham Mutual, interviewed Scott David on September 14, 2005. David told Crenshaw that he had hired a man to transport the Davids' personal property to California in connection with the family's relocation there, and that the man had disappeared with the property. At some point, David provided Crenshaw with a long list of property said to have been lost, along with claimed values for the items. The total claimed value of the lost items was$125,514.74.

In mid-January 2006, Crenshaw sent a letter to David, at his Lowell, Massachusetts address, requesting (1) "the actual replacement cost rather than an estimated cost," (2) "the age of each item," and (3) "verification as to the existence of the items through receipts, charge card records, or other such means." (App. to Def.'s Mot. for Summ. J., Ex. 3). Crenshaw talked by telephone with David on January 30, 2006, and the next day Crenshaw sent a second letter to David's California address, provided by David, asking David to verify the loss. Crenshaw wrote:

In regard to theft, since we are unable to view a physical item[,] it would be necessary that you prove the item existed. This can be done through cancelled checks, receipts, warranty cards, the packaging the item may have been purchased in, or in some cases we will accept photographs of a particular item. After that has been accomplished we would then need an actual replacement cost rather than an estimate as to the replacement cost of the item and also where you might have received that actual replacement cost for verification purposes. Once this has been provided we would then move forward with the processing of your claim and hopefully bring it to its proper conclusion.

(Id. at Ex. 4.)

The plaintiffs received the January 31, 2006 letter, but did not respond or provide any further information.

The next communication between the parties was a July 19, 2006 letter sent by Crenshaw, return receipt requested, to Scott David to his address in California where the January 31 had been sent, "making formal request for a Proof of Loss." (Id. at Ex. 6.) Enclosed with the letter was a blank Proof of Loss form. The return receipt was signed on July 25, 2006, but it is not clear by whom.

In August 2006, a lawyer representing the plaintiffs wrote to Hingham Mutual and demanded payment of the Davids' claim. He did not enclose a Proof of Loss. A week later, the lawyer wrote again, making a formal demand in accordance with Massachusetts General Laws ch. 93A, § 3(9). On August 24, 2006 counsel for Hingham responded, stating that Hingham Mutual had not denied the plaintiff's claim as of that point, and reiterating the demand for a formal Proof of Loss, noting that the first Proof of Loss demand had been made over a month earlier. Hingham Mutual's lawyer also made a "request for an Examination Under Oath" of the plaintiffs, as permitted by the policy. Enclosed with his letter was a copy of the relevant portion of the Policy. Another letter dated September 14, 2006 from Hingham Mutual characterized the August 24, 2006 letter as a second formal demand for a Proof of Loss. No Proof of Loss was ever submitted by the Davids. On October 18, 2006, Hingham Mutual's lawyer wrote to the plaintiffs' lawyer to notify him that the claim had been denied.

Before the claim was denied, the plaintiffs did not protest that they had not received the formal demand for a Proof of Loss when it was sent in July, 2006. In particular, plaintiffs' counsel did not specifically object to the recitation in the letters of August 24 and September 14 that the Proof of Loss form enclosed in the July 19th letter had not been received or that, contrary to the demands being made by Hingham Mutual's counsel, the obligation to furnish such a Proof of Loss had been waived. Even the denial of the claim in October on the basis that the Proof of Loss had not been submitted did not bring a protest. Sometime later, apparently after the case was in litigation, the plaintiffs took the position that they had not received the July 19 demand for a Proof of Loss, because they had moved from the California address to which it had been sent to another California address. They now disclaim knowledge as to who had signed the return receipt for the letter.

1. Rule 9(c)

First, the plaintiffs assert that Hingham Mutual cannot object that the plaintiffs are barred from recovery for failure to file formal Proof of Loss because Hingham Mutual failed to comply with Federal Rule of Civil Procedure 9(c), which requires that a denial of the performance of a condition precedent "be made specifically and with particularity." The plaintiffs point to paragraph six of the answer (dkt. no. 2), which simply states "Denied" in response to the complaint's assertion that the plaintiffs satisfied all conditions precedent.

While it is true that a general denial is insufficient for denying performance of a condition precedent, Hingham Mutual's answer includes a "First Affirmative Defense" that the "plaintiffs failed to comply with policy requirements, specifically (and without waiving other policy requirements not adhered to) paragraph 4 on page 12 of the policy." (Answer 3.) Paragraph Four of the Policy states:

4. Other Duties — Property Coverages —

. . .

The Insured must give to us a statement of loss (under oath if we request) within 60 days after the loss.

At our request the insured must:

a. give us a proof of loss, within 60 days after our request, that shows:

1) the time, place and the details of the loss;

2) the interest of the insured and of all others in the property. This includes all mortgages and liens

3) other policies that may cover the loss;

4) changes in title or use;

5) available plans and specifications of buildings;

6) detailed estimates for repair; and

7) in detail, the quantity, description, cost, amount of loss and actual cash value of the personal property involved in the loss. The insured must give us copies of all bills, receipts, and related documents to confirm these;

b. submit to examination under oath in matters that relate to the loss or claim as often as we reasonably request. If more than one person is examined, we have the right to examine and receive statements separately from each person and not in the presence of the others;

Homeowners Policy, "What You Must Do in Case of Loss," ¶ 4. The First Affirmative Defense satisfies Rule 9(c) and preserves this defense for this motion.

2. Proof of Loss

As a matter of law, compliance with Hingham Mutual's demands for the Proof of Loss and for the Examination under Oath are conditions precedent to recovery on the plaintiff's claim. See Mello v. Hingham Mut. Fire Ins. Co., 656 N.E.2d 1247, 1250 (Mass. 1995) ("It is the law in most jurisdictions that the submission to an examination, if the request is reasonable, is strictly construed as a condition precedent to the insurer's liability. . . . This court agrees with these authorities.") (citations omitted); Smith Beverages, Inc. v. Metropolitan Cas. Ins. Co., 149 N.E.2d 146, 147-48 (Mass. 1958) ("The seasonable filing of the prescribed proof of loss was a condition precedent to the defendant's liability upon the policy. Failure to file such proof within the sixty-day period mentioned in the policy 'bars recovery unless the failure is excused or has been waived.'") (citations omitted). The Policy in question clearly states that both must be complied with if requested by Hingham Mutual. See Homeowners Policy, "What You Must Do in Case of Loss," ¶ 4(a)-(b).

The plaintiffs argue that there is a genuine question of material fact as to when, and even if, Hingham Mutual made formal demand for a Proof of Loss. There may be a question of fact as to whether the plaintiffs received the July 19 letter, but there is no question that their lawyer was notified of Hingham Mutual's demand for a formal Proof of Loss by Hingham Mutual's lawyer in his August 24 letter, along with the reminder that there was a 60 day time limit for its submission. Furthermore, the plaintiffs do not, and cannot, argue that there is a question of fact as to their knowledge that the defendant made a formal demand for an Examination under Oath. It is undisputed that the plaintiff's counsel received both the August 24, 2006 and September 14, 2006 letters. The request was clearly made in the August 24, 2006 letter, and it was reiterated in the September 14, 2006 letter.

The Massachusetts courts have held that if one is requested, an Examination under Oath is a condition precedent — separate from the condition precedent for a Proof of Loss — that must be satisfied prior to recovery. See Mello, 656 N.E.2d at 1250. In this case, it was entirely reasonable for Hingham Mutual to have requested that the plaintiffs submit to an Examination under Oath. Not only were the factual circumstances of the claim somewhat suspicious, but in addition Hingham Mutual's repeated attempts to obtain documentary evidence from the plaintiffs had been unsuccessful. An Examination under Oath was a reasonable step to collect additional information regarding the claim. Having failed to comply with the condition precedent of submitting to an Examination under Oath, the plaintiffs committed a material breach of the Policy, and are therefore barred from recovery as a matter of law. See Lorenzo-Martinez v. Safety Ins. Co., 790 N.E.2d 692, 695-96 (Mass.App.Ct. 2003).

Similarly, the plaintiffs' failure to submit a Proof of Loss would likewise bar recovery. Taking the facts in the light most favorable to the plaintiffs, it may be assumed that they never received the July 19, 2006 letter first making the demand for a formal Proof of Loss in accordance with the policy. Nonetheless, the plaintiffs were aware of the demand upon their lawyer's receipt of the August 24, 2006 letter, and they were aware that Hingham Mutual's position was that the 60 day period for the submission of such a Proof of Loss should be computed from July 19.

Even if the August letter should be considered the starting point for the 60 day period, that period expired on October 23, 2006 without a Proof of Loss having been submitted. Strictly speaking, on this time calculation the claim denial on October 18 was a bit premature, but that should only matter if a Proof of Loss had been submitted after the 18th but before the 23rd. The plaintiffs never objected that the denial was five days earlier than justified. Indeed, they made no immediate response to the denial. Accordingly, giving the plaintiffs the benefit of the doubt by computing the 60 day period for the filing of a Proof of Loss from the August, rather than the July letter, it still expired with the condition unfulfilled. See Smith Beverages, 149 N.E.2d at 147-48.

3. Prejudice

Finally, the plaintiffs argue that Hingham Mutual's motion should be denied because it has not demonstrated prejudice from their failure to submit a Proof of Loss. See Johnson Controls Inc. v. Bowes, 409 N.E.2d 185, 188 (Mass. 1980). However, Massachusetts courts have not applied the Johnson Controls prejudice requirement when an insured has failed to comply with a condition precedent, such as submission to an examination under oath. See, e.g., Mello, 656 N.E.2d at 1249-50 (declining to applyJohnson Controls on the basis that it "affected only the notice provisions of the G.L. c. 175, § 99's duty to cooperate" so that the insured's failure to comply with the reasonable request for an examination under oath would release the insurer from its obligations without evidence of actual prejudice);Lorenzo-Martinez v. Safety Ins. Co., 790 N.E.2d 692, 696 (Mass.App.Ct. 2003) ("[A]n insured's wilful, unexcused failure to submit to an examination under oath constitutes a breach of the standard automobile insurance contract resulting in forfeiture of coverage for uninsured motorist benefits without proof of actual prejudice resulting to the insurer's interests."). Moreover,Johnson Controls involved a third-party insurance policy, not a first-party policy as in this case; both Mello andLorenzo-Martinez involved first-party insurance provisions. As explained above, the plaintiffs have offered no excuse for their failure to submit to an Examination under Oath or to furnish a formal Proof of Loss — both conditions precedent to recovery under their policy. Under Massachusetts law, Hingham Mutual is not required to show it was prejudiced by the defaults in order to deny coverage.

For the foregoing reasons, the defendant's motion for summary judgment (dkt. no. 6) is GRANTED and judgment shall enter in favor of the defendant.

It is SO ORDERED.