Lusalon, Inc. vs. The Hartford Accident and Indemnity Company & others, 400 Mass. 767

08/17/1987 Posted By: Corwin & Corwin LLP

court: SUPREME JUDICIAL COURT OF MASSACHUSETTS
Citation: 400 Mass. 767
Parties: LUSALON, INC. vs. THE HARTFORD ACCIDENT AND INDEMNITY COMPANY & others 1.
County: Suffolk
Hearing Date: April 9, 1987
Decision Date: August 17, 1987
Judges: WILKINS, LIACOS, LYNCH, & O'CONNOR, JJ.

In a civil action in which a subcontractor on a construction project sought a declaration that its insurer had a duty to defend and indemnify in an action brought by the general contractor for damage to another subcontractor's work, the judge correctly ruled, in granting summary judgment for the insurer, that a provision in the general liability insurance policy excluding coverage for damage to "that particular part of any property" needing repair on account of the insured's faulty workmanship excluded coverage for damage to not only the plaintiff subcontractor's work but also for damage to other property, where there was no ambiguity in the policy or uncertainty in the factual circumstances to justify denying effect to the exclusion. [770-771] In a civil action in which a subcontractor on a construction project sought a declaration that its insurer had a duty to defend and indemnify in an action brought by the general contractor for damage to another subcontractor's work, the judge correctly ruled, in granting summary judgment for the insurer, that the insurer had no duty to defend where, on the basis of a statement of agreed facts, there clearly was no

CIVIL ACTION commenced in the Superior Court Department on October 25, 1979.

A motion for summary judgment was heard by James J. Nixon, J., and entry of final judgment was ordered by William G. Young, J.

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1 Summer Fox, Lusalon's former corporate attorney; Louis Karp, Lusalon's trial counsel; CBM Insurance Agency, Inc.; and Donald L. Moors, an insurance agent who operates CBM Insurance Agency.

Page 768

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Peter J. Gagne (Lisa H. Harrod with him) for the plaintiff.

Joseph J. Walsh for The Hartford Accident and Indemnity Company.

LIACOS, J. On October 25, 1979, Lusalon, Inc. (Lusalon), brought an action under G. L. c. 231A (1984 ed.). Lusalon sought a declaration that The Hartford Accident and Indemnity Company (Hartford), had a duty to defend and to indemnify Lusalon (a masonry subcontractor) in an action brought by Blount Brothers Corporation -- Fontaine Bros. (general contractor). This latter action had been brought against Lusalon for damages caused to another subcontractor's work during construction of a high school in Boston.

On April 17, 1984, the case was referred for a pretrial hearing limited to two issues: "1. Does Hartford have an obligation to defend [Lusalon]?" and "2. Does the Hartford policy cover this loss?." The parties submitted a statement of agreed facts consisting of Lusalon's liability policy and a September, 1978, master's report. Hartford moved for summary judgment.

2 A Superior Court judge allowed the motion. He ruled that "Hartford did not provide coverage for losses alleged nor were they obligated to defend." In a memorandum, the judge stated, "There is no dispute in the facts. The insurance furnished was not intended to indemnify the plaintiff for damages resulting because the plaintiff furnished defective materials or workmanship in the cleanup and related work."

Lusalon then moved for entry of final judgment for the other named defendants. The grounds were that Lusalon could not, as matter of law, recover against any of the defendants after the judge had allowed Hartford's motion for summary judgment. Judgment was entered for all defendants, and Lusalon

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coverage under the policy. [772-774]