Summary Judgment Granted / Arson at Vacant Property


Attorneys Scott Ober and Michael Melville successfully obtained summary judgment in the United States District Court, District of Massachusetts, on behalf of a property insurer in claim for damages following arson at a residential property in Massachusetts.

After moving to Connecticut in 2007, the plaintiffs rented the subject home in Springfield to tenants through December 2010. The plaintiffs then make periodic repairs to the home in an effort to prepare the home for sale. The plaintiffs entered into a purchase and sale agreement in April 2011. Shortly before the sale closing was to occur in May 2011, an arsonist set fire to the house, resulting in substantial damage to the property.

The plaintiffs submitted a claim for property damage to their homeowners carrier. The insurer denied the claim on the grounds that the home had been vacant for more than sixty days prior to the fire and that the insured’s policy expressly excluded coverage under those circumstances.

Unbeknowst to the insureds, the mortgagee had hired a company to perform periodic inspections of the property. This company visited the property on approximately four occasions and prepared reports indicating the property was “occupied” during the relevant period in 2011. The plaintiff used the reports in an attempt to persuade the insurer to reconsider its denial of their claim. The insurer again denied the plaintiffs’ claim and the plaintiffs filed suit against the insurance company alleging breach of contract and violations of M.G.L. c. 93A.

Attorneys Ober and Melville moved for summary judgment on the plaintiff’s breach of contract claim, arguing that there was no genuine issue of material fact as to whether the property had been vacant within the meaning of the policy. Defense counsel argued that the vacancy exclusion contained in the standard homeowner’s policy is based on the fact that vacant homes are more likely to be damaged or destroyed than occupied structures. Defense counsel further argued that to avoid the vacancy provision, an insured’s presence must parallel the conditions of residential living. Defense counsel argued that plaintiff’s husband’s periodic visits to the property during repairs were insufficient to avoid the vacancy exclusion.

Defense counsel also moved to strike the security company’s drive-by inspection reports upon which the plaintiff was relying to prove occupancy, arguing that same were inadmissible as they constituted improper hearsay and contained unsubstantiated, vague and conclusory statements as to the occupancy of the property.

Judge F. Dennis Saylor, IV of the United States District Court, District of Massachusetts, granted the defendant’s Motion for Summary Judgment as to plaintiff’s claims for breach of contract. Further, Judge Saylor dismissed plaintiff’s remaining claim for damages under M.G.L. c. 93A, as the claims were based solely on the underlying claim for breach of contract.


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