Opinion
18-P-549
05-06-2019
ADALEY SAEZ v. LIBERTY MUTUAL FIRE INSURANCE COMPANY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2014, the plaintiff (Saez) sued Terrance Wilson, pursuant to G. L. c. 140, § 155, and in negligence, for injuries caused by two pit bulls belonging to him. Wilson did not seek to be defended or indemnified in that suit by the defendant (Liberty Mutual), which had issued a homeowners policy to Wilson's aunt, Marva Charles (Marva), who owned the two-family residence where the dog attack occurred. Saez, however, notified Liberty Mutual of her suit against Wilson, taking the position that Liberty Mutual owed Wilson both a defense and indemnification for her claims against him. Liberty Mutual disagreed; Wilson defaulted; judgment entered in favor of Saez. Thereafter, in exchange for Saez agreeing not to pursue her judgment against him, Wilson assigned to Saez his rights (such as they might be) under the homeowners policy. This suit followed, in which Saez, as Wilson's assignee, sued Liberty Mutual for breach of contract, violation of G. L. c. 175, §§ 112 & 113, G. L. c. 176D, and G. L. c. 93A. All of Saez's claims depend on whether Wilson was an "insured" under the homeowners policy. A Superior Court judge entered summary judgment in Liberty Mutual's favor on this question. Saez has appealed, and we affirm.
Years earlier, in 2004, Saez had sued Marva and her sister, Charla Charles (Charla), Wilson's mother, over the same injuries. That suit terminated by stipulations of dismissal, and no payments were made by any party. Marva was defended by Liberty Mutual in the 2004 suit.
We review a decision on summary judgment de novo, based on the record presented to the motion judge. Kiribati Seafood Co., LLC v. Dechert LLP, 478 Mass. 111, 116 (2017). Where, as here, the parties filed cross motions for summary judgment, we view "the evidence . . . in the light most favorable to the party against whom judgment is to enter" (citation omitted). Eaton v. Federal Nat'l Mtge. Ass'n, 93 Mass. App. Ct. 216, 218 (2018). "Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). Where the opposing party has the burden of proof, the moving party must demonstrate that the opposing party "has no reasonable expectation of proving an essential element of that party's case" (citation omitted). Ravnikar v. Bogojavlensky, 438 Mass. 627, 629 (2003).
Liberty Mutual moved for summary judgment on all counts in Saez's complaint; Saez cross-moved on count one (breach of contract) and count two (G. L. c. 175, §§ 112 & 113).
Liberty Mutual issued a homeowners policy to Marva for the period September 11, 2003 to September 11, 2004. The policy defines an "insured" as "[Marva] and residents of [Marva's] household who are . . . [Marva's] relatives." Thus, as the party seeking coverage, Saez bore the burden of demonstrating a triable issue that Wilson was a resident of Marva's household. See Andrade v. Aetna Life & Cas. Co., 35 Mass. App. Ct. 175, 176-177 (1993). That question is to be analyzed "on a case-by-case basis with an evaluation and balancing of all relevant factors." Vaiarella v. Hanover Ins. Co., 409 Mass. 523, 527 (1991). Metropolitan Prop. & Cas. Ins. Co. v. Morel, 60 Mass. App. Ct. 379, 382 (2004) (Morel).
The insured premises was a two-family house located at 69-71 Ranney Street, Springfield. Each residential unit was accessed by a separate door. Marva owned the building and lived with her children in the upstairs unit, which had the street address "71." Marva's sister, Charla, rented the downstairs unit (street address "69") and lived in the downstairs unit with her two daughters. Marva and Charla treated the two units as completely separate, and considered Wilson to be a member of Charla's household -- not Marva's.
Wilson is Charla's son and Marva's nephew. After graduating from college in 2003, Wilson moved to Atlanta. When things did not work out in Atlanta, Wilson returned to Springfield while he looked for work in New York. He was living in Springfield in February 2004, when Saez was attacked by his dogs. At some point after the incident, Wilson found work in, and moved to, New York. He has lived there ever since.
During the period he was in Springfield, Wilson stayed with his mother, sleeping on the couch in her living room. Wilson considered himself a resident of his mother's unit, not of Marva's. He considered the two households to be separate: "I mean, we all used the same backyard and the same driveway, but her house was her house and ours was ours. You know, she would eat in hers and cook and watch TV in hers. It wasn't like she came down and cooked in our house, you know." His mail was addressed to number 69, and his driver's license gave that as his street address. Although Wilson never considered himself a resident of Marva's household, he began using one of the third-floor bedrooms in Marva's unit to entertain guests, to store his clothes, and to play music. In addition, taking the record in the light most favorable to Saez, we accept that Wilson slept in the third-floor bedroom half of the time. Eventually, Marva asked Wilson to pay rent for the use of the third-floor bedroom, and "[he] may have paid her once or twice" before he moved to New York. Wilson had a key to access Marva's apartment so he could get to the third-floor bedroom. He never ate with Marva or her children in her unit, he performed no chores for Marva, he did not babysit for Marva's children, and Marva never gave him any money. Contrast Morel, 60 Mass. App. Ct. at 383-384 (putative insured resided full-time in household and was economically dependent on insured).
Even accepting, as Saez asks us to do, that Wilson's connection to the third-floor bedroom was sufficient to find he resided there temporarily in 2004, she nonetheless failed, under the "pragmatic balancing approach adopted in Vaiarella," Morel, 60 Mass. App. Ct. at 383, to raise a triable issue as to whether Wilson was a resident of Marva's household or to raise any ambiguity in applying the term "household" to these facts. See Andrade, 35 Mass. App. Ct. at 178 ("Although there may be many definitions which fit the terms 'household' and 'relative,' none allows for Andrade's desired construction"). Although "modern society presents an almost infinite variety of possible domestic situations and living arrangements, [such that] the term 'household member' can have no precise or inflexible meaning," the resolution of how a particular set of facts applies to that policy language is a question of law. Vaiarella, 409 Mass. at 526-527.
Here, Wilson's use of the third-floor bedroom appears to have been a matter of convenience to him while he was temporarily in Springfield. There is nothing to suggest he or Marva expected or intended it to be a long-term arrangement or to extend beyond the use of the bedroom. Wilson did not spend time with Marva or her children, shared no activities with them, and was not economically dependent on Marva. The fact that Wilson had a key by which he could access other parts of Marva's unit does not mean that he did so or that he or Marva intended him to. See Vaiarella, 409 Mass. at 528 (membership in household cannot be based on future intentions rather than on an established arrangement). In short, there is nothing to suggest that Wilson was part of a family living together in Marva's unit. See Black's Law Dictionary 808 (9th ed. 2009) ("household" defined as "[a] family living together"). By contrast, he received his mail at his mother's unit, used it as his address (including on his driver's license), met his friends in the living room there, slept on the living room couch, considered himself a resident, and kept his dogs there.
The fact that one of the dogs was removed to the upstairs unit after the attack in order to remove it from the scene adds little, if anything, to the calculus.
Because Saez did not raise a triable issue that Wilson was a resident of Marva's household, she failed to demonstrate that she could meet her burden to establish that he was an insured under the policy. Her claims against Liberty Mutual accordingly fail as a matter of law, and we affirm the entry of summary judgment in Liberty Mutual's favor.
Judgment affirmed.
By the Court (Vuono, Wolohojian & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 6, 2019.