Summary
affirming trial court's dismissal of breach of contract claim for failure to allege "how the contract was breached," as "the extent and nature of [the contractual] obligations are matters of pure speculation."
Summary of this case from McCormick v. LischynskyOpinion
No. 11–P–274.
2012-05-18
Arthur DESKOS v. SHAGOURY INSURANCE AGENCY, INC., & others.
The defendants argue that Tasia's negligence claim accrued no later than August 2005. Tasia died on June 3, 2007, within the three-year limitations period for the claim. G.L. c. 260, § 2A. To the extent the claim sought to recover for damage to real property (as opposed to personal injury to Tasia), it survived Tasia's death. G.L. c. 228, § 1. (actions of tort for “damage to real or personal property” survive death). Thus, the claim was timely because it was brought within two years after Deskos's appointment as executor. See Gallup v. Gallup, 11 Met. 445 (1846).
By the Court (WOLOHOJIAN, MILKEY & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the dismissal, on statute of limitations grounds, of all claims asserted in the second amended complaint (complaint). We affirm in part and reverse in part.
Read as required, see Iannacchino v. Ford Motor Co., 451 Mass. 623, 635–636 (2008), the complaint alleges that the plaintiff's mother (Tasia) lived at 395 Highland Street, Holliston, and that the property was covered at all relevant times under a homeowners policy issued by Travelers. The home was damaged when a tree fell on the roof during a severe storm in October, 2003. Tasia, at that time over 70 years old, submitted a claim to Travelers through Shagoury, her long-time insurance agent. Shagoury, acting as Travelers' agent, was actively involved in adjusting the claim, collected information from Tasia, and acted as a liaison between Tasia and Travelers. Shagoury recommended Servicemaster and, together with Travelers, assigned Servicemaster to perform the necessary repairs. Servicemaster failed to repair the roof properly and instead installed only a temporary plastic patch to the interior of the roof, rather than making the required permanent repair to the exterior of the roof. The patch acted as a hidden water and moisture trap, causing extensive damage to the property and unhealthy levels of black mold. Neither Servicemaster, Shagoury, nor Travelers informed Tasia that the repair was temporary or unsuitable for long-term use. Shagoury did not inform Tasia that additional work would be required to effect a permanent repair, or that extensive water damage would result if nothing further were done.
Nor did Shagoury inform Tasia that if she did not hire a contractor to permanently repair the damage, Travelers would likely cancel future coverage.
We need not resolve whether the inclusion of “never” in the first sentence of paragraph 11 of the complaint is a typographical error because we have set that sentence aside for purposes of our decision.
The defendants knew or should have known that the failure to repair the roof properly would likely result in property damage and in black mold and other contaminants. Given her age, the fact that the repair was in the roof, and that the damage was hidden, Tasia could not have discovered that the repair was performed in an unworkmanlike manner.
The policy was renewed in June, 2004. Around August, 2005, after a routine pre-policy renewal inspection by Travelers, Shagoury informed Tasia that Travelers believed the roof required additional repairs, and was canceling the policy. Shagoury informed Tasia that she would be placed in the “risk pool” and that her premiums would triple.
In the spring of 2007, Deskos moved in with Tasia because of her declining health. Soon thereafter, Deskos was admitted to the hospital suffering from black mold symptoms. He then learned that black mold and extensive property damage had been caused by the infiltration of water from the deficient repair. Tasia died shortly thereafter on June 3, 2007, and Deskos was appointed executor of her estate in October 2009. He filed suit on October 21, 2009.
Discussion. Although the complaint was dismissed only on statute of limitations grounds, the defendants also raised (and argue on appeal) other pleading deficiencies. For ease, therefore, we organize our discussion by each count, keeping in mind that the claims are brought by Deskos individually and as representative of Tasia's estate and asserted against three separate defendants.
1. Count I—breach of contract. Because the essential elements of a breach of contract claim are not sufficiently alleged against any defendant, nor can they be reasonably inferred, this count was properly dismissed. See Harvard Law Sch. Coalition for Civil Rights v. President & Fellows of Harvard College, 413 Mass. 66, 71–72 (1992). The only contract mentioned in the complaint is the homeowners policy, the terms of which are not alleged and a copy of which was not attached. The complaint is silent as to what provision of the policy is alleged to have been breached. There is no basis upon which to infer that Shagoury or Servicemaster had any obligations under the policy; although one might infer that Travelers had obligations under the policy, the extent and nature of those obligations are matters of pure speculation. There is also no allegation as to how the contract was breached, or by whom. Moreover, although one can infer that Tasia was a party to the policy, one cannot reasonably infer that Deskos was. In short, the complaint does not sufficiently allege the existence, terms, or parties to any contract, how it was breached, or by whom.
2. Count II—negligence. The defendants primarily argue that the negligence claim is time-barred.
We disagree. Deskos's individual negligence claim accrued in May 2007, when he first suffered symptoms of illness caused by black mold and learned of the presence of black mold in the house. Doherty v. Admiral's Flagship Condominium Trust, 80 Mass.App.Ct. 104, 107–108 (2011). The complaint was filed in October, 2009, well within the three-year limitations period. G.L. c. 260, § 2A.
In addition, Shagoury argues that it owed no duty to Tasia. Although an insurance agent does not ordinarily owe a duty to advise the insured, special circumstances may give rise to such a duty. Baldwin Crane & Equip. Corp. v. Riley & Rielly Ins. Agency, Inc., 44 Mass.App.Ct. 29, 32 (1997). See McCue v. Prudential Ins. Co., 371 Mass. 659, 661–663 (1976). The allegations of the complaint were sufficient to state the existence of special circumstances, including the relationship between Shagoury and Tasia, the fact that Shagoury undertook and supervised the repairs and located Servicemaster, and the fact that Shagoury reported to Tasia that the repairs had been adequately completed. “Whether the'special circumstances of assertion, representation and reliance' which create an insurance agent's extended liability, including liability for breach of contract, exist ‘is a jury question.’ “Schwartz v. Travelers Indem. Co., 50 Mass.App.Ct. 672, 680 (2001), quoting from McCue, supra at 661.
The limitations period for claims brought by Deskos in his capacity as executor are subject to the provisions of G.L. c. 260, § 10, which provides in relevant part:
“If a person entitled to bring ... any action before mentioned dies before the expiration of the time hereinbefore limited, ... and the cause of action by law survives, the action may be commenced by the executor or administrator at any time ... within two years after his giving bond for the discharge of his trust.”
The defendants argue that Tasia's negligence claim accrued no later than August 2005. Tasia died on June 3, 2007, within the three-year limitations period for the claim. G.L. c. 260, § 2A. To the extent the claim sought to recover for damage to real property (as opposed to personal injury to Tasia), it survived Tasia's death. G.L. c. 228, § 1. (actions of tort for “damage to real or personal property” survive death). Thus, the claim was timely because it was brought within two years after Deskos's appointment as executor. See Gallup v. Gallup, 11 Met. 445 (1846).
3. Count III—misrepresentation. The elements for a misrepresentation claim are: “a false statement of a material fact made to induce the plaintiff to act, together with reliance on the false statement by the plaintiff to the plaintiff's detriment.” Zimmerman v. Kent, 31 Mass.App.Ct. 72, 77 (1991). The claim must be pleaded with particularity. Mass.R.Civ.P. 9(b), 365 Mass. 751 (1974). The complaint fails to state a misrepresentation as to Deskos individually for the simple reason that no statement to him is alleged. For the same reason, the claim against Servicemaster brought by Deskos in his representative capacity fails.
The complaint does, however, state a misrepresentation by omission claim by the estate against Shagoury and Travelers, on whose behalf Shagoury is alleged at all times to have acted as agent. The defendants argue that the claim is time-barred. Although it is true that a misrepresentation claim that results only in pecuniary loss does not survive death, such a claim does survive if damage is done to some specific personal or real estate of which one is the owner. Piper v. Childs, 290 Mass. 560, 565–566 (1935). As a result, for the same reasons set out above in section 2, the misrepresentation claim is not time-barred to the extent it seeks to recover for damage caused to the real estate.
4. Counts IV and V—violation of chapters 176D and 93A. The claim for violation for G.L. c. 176D, § 3, was properly dismissed because the statute creates no private right of action. Morrison v. Toys “R” Us, Inc., 59 Mass.App.Ct. 613, 617–618 (2003). Likewise, the failure to send a legally sufficient pre-suit demand letter, G.L. c. 93A, § 9, requires the dismissal of the chapter 93A claim.
No demand letter was sent in the plaintiff's individual capacity. And the demand letter sent in his representative capacity demanded only access to Shagoury's files, does not mention chapter 93A or any unfair or deceptive business practice, and does not demand damages or other relief.
Although the plaintiff's demand letter was not attached to the complaint we can consider its contents on a motion to dismiss where it was attached to the defendants' motion. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 224, 228–229 (2011).
5. Travelers' cross appeal. Relying on Saltmarsh v. Saltmarsh, 395 Mass. 405, 408 n. 4 (1985), Travelers asks that we strike footnote 6 of the judge's decision. Although the footnote was not well-advised, it does not contain any objectionable fact finding of the sort in Saltmarsh.
So much of the judgment as dismisses Count II of the second amended complaint, and so much as dismisses Count III as to defendants Shagoury and Travelers, is reversed. The judgment is otherwise affirmed. The case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.