-: SJC-13109, the Masonic Temple Association
of Quincy, Inc. v. Jay Patel.
Budd: Okay, so we'll start with attorney Pickering-Cook.
-: Yes, good morning.
May it please the court.
My name is Nina Pickering-Cook.
With me is my partner, Steve Schreckinger.
We represent the Masonic Temple Association of Quincy,
referred to in this case as the Masons.
We're going to be dividing the appellant's time this morning
with 10 minutes for Masons' counsel to dress the DBA issues
and five minutes for Dipika's counsel
to address the claims against Roblin.
With the court's permission, given that I'm going early
in this lineup, I would like to reserve one minute of time.
Budd: Well, you know, we don't do that so.
-: Understood, Your Honor.
Now, Union argues that the policy at issue to Dipika
is limited to the Super 8 in Weymouth based solely
on a single notation on the declaration page
of quote, DBA Super 8, unquote, under the named insured.
That notion, this three letter descriptor
that has no legal significance is decisive,
is inconsistent with the rest of the policy
and inconsistent with the decisions of this court.
Turning first to the policy, Union argues that the policy
doesn't cover Dipika's construction at the Masons Temple,
yet the policy contains two endorsements
that essentially say, we cover you for all
construction projects and we cover you
for operations at all locations.
Those endorsements can be found at record appendix
volume one pages 208 and 210.
-: Aren't the words may in that language,
it's not, it's not a mandatory, it's a may include,
it may be extended, right?
If you read the exact language,
read the exact language about extensions for a second.
Nina: As far as what the endorsements cover?
-: What, you're saying that the policies allow
the extensions, right, for construction, right?
Is that the argument you're making?
-: Correct, that, that, that the policies include
an endorsement that covers all construction projects.
-: I thought it said it may be extended,
the exact language.
Am I misremembering the language?
-: Well, adding, adding the endorsement to the policy
extended that coverage.
This is an endorsement for which
the insured paid a premium.
-: Insured didn't pay an additional premium
for anything, right?
He paid a premium for the Dipika DBA Super 8,
Washington Street, Weymouth, right?
That's what it is.
He didn't get any, he, he, they didn't pay more.
He didn't increase his premium to pay
for the additional coverage you're talking about, right?
-: If you look at the second page is the declarations page,
there is a line item that lists endorsement premiums,
and he pays an additional amount for
the endorsement premiums as listed on that page.
Georges: When you say the premiums, though,
how are the premiums calculated?
-: I can't answer that, Your Honor.
That's, I.
-: Because, is, isn't that part of why they say
that it's not covered that whatever he was doing
at the basin site, if you look at how
the premiums were calculated.
-: Your Honor, that that may well be what
the insurer intended, but what was issued to the insured
here was a policy that was had no limiting language
in it anywhere, right?
So if the insurance company intended to limit the policy
to DBA Super 8, it could have done so in a number of ways.
So first of all, those endorsements could easily
have been written to say, instead of all projects
and all locations, all Super 8 projects,
all Super 8 locations.
It didn't say that.
In addition, the Masons have an expert
in the insurance industry that testified
there is recognized insurance standard language
that you add to policies when you are intending
to limit them to a single operation or a single location,
and the insured did not do that here.
Now, whether they thought they were insuring
just the Super 8, we don't know.
We base our decisions based on the plain language
that's reflected in the policy.
The court, this court has already decided the issue,
although it was not, did not have this DBA notation,
but the Tufts issue is squarely on point
with the underlying issue here, which is,
what does an insurer need to do
to effectively limit coverage?
What do they need to reflect in the policy
to effectively limit coverage?
So in Tufts, the insurer argued that the policy
did not extend to activities of the Tufts subsidiary
because that subsidiary was not listed
on the scheduled hazard under the policy.
Now, the court rejected that argument and it held
that if insurers want to limit coverage
to a specific hazard, they have to do so unambiguously.
In fact, the very quote, which I believe both sides have,
have cited in their briefs, says, quote,
nowhere does the policy unambiguously provide the coverage
is limited to the specific hazards listed in the schedule.
Now that rule is directly applicable here.
Union cannot dispute that nowhere in this policy
does it use the words to the effect that coverage
is limited to the Super 8 in Weymouth.
The court cannot infer a limitation where there is none,
and that is what Union is asking you to do here,
and for one infer, from one mention of a DBA,
a limitation that applies to the entire policy.
-: Can I ask again, I'm focused on exact language,
the newly acquired, are you the newly acquired
or constructed property?
That's, that's the basis 'cause the policy talks about it
as doing business at this particular address,
but I take it you're relying on the, the fact
that the policy also has language that you can,
you can acquire additional buildings
or things like that, right?
-: I'm, I'm sorry, Your Honor,
that you can acquire additional?
-: Additional buildings.
The newly acquired or constructed property provision
in the, is that what you're relying on?
-: No.
What we're relying on is the fact that nowhere
in the policy is it limited, nowhere.
-: The policy describes what it's for, which is this
doing business at a particular address,
but it allows for additional flexibility,
but it, but you're not relying on that either.
-: No, it does, Your Honor, but we're also relying
on the fact that it's settled law in Massachusetts,
that under commercial general liability policies,
as the amicus point out, the insured covers all risks
that are not explicitly excluded, and that includes risks
that the insured may diversify and expand.
What happened here.
Wendlandt: Who, who is the insured under the policy?
Nina: The insured is Dipika, Inc.
If you look at the declaration page.
Wendlandt: But where is that?
-: The declaration page, I believe,
is record appendix one page 82.
The record appendix, that declarations page
lists the insured as Dipika, Inc.
On the line below, it says DBA Super 8,
but the, the declarations page also
has additional descriptions for the form of business
is listed as a corporation.
Super 8, DBA Super 8 is not a corporation.
Only Dipika is a corporation, and the insured business
is described as hotels and motels.
What Dipika did was doing at the Masons' Temple
was a permitted construction project.
-: So counsel, let me test you on that,
push back a little bit on that.
One of the, the counterarguments here is that
you are referring to Mr. Patel and Dipika as if
they're one in the same and that what was undertaken
at the, at the Masons or at this, this project
was by Mr. Patel, not Dipika.
-: Your Honor, that's a disputed issue of fact
that is yet to be resolved in this case,
whether Dipika, Inc. is, is the liable party here.
What, what is in front of the court now
is what does the policy cover?
The policy clearly covers Dipika, Inc.
The Masons have alleged that Dipika, Inc. caused that fire,
but that liability is, is yet to be determined.
Lowy: But the assignment was to Patel.
Georges: Right.
-: Correct that, that the assignment was to Patel.
There is other evidence that Dipika, Inc.
undertook the construction, including the testimony
of Jay Patel himself as a principal of Dipika, Inc.,
as well as the payments made to the workers that caused
the fire were from checks issued by Dipika, Inc.
So that is very much a disputed fact that, that.
Lowy: On the call to the broker,
how did he identify himself on the call to the broker?
-: On the call to the broker, he said, this is Jay Patel.
I need coverage for Dipika, Inc.
If you look at the exact quoted language, he said,
I need coverage for Dipika, Inc. for the Mason,
to cover the Masons as a loss payee.
He says nothing about the Super 8 Motel.
Clearly the insured here thought that his corporate entity
under which he was doing work for the Masons
was covered under this policy.
Now, even if Your Honors find that the.
Wendlandt: I'm sorry, can you tell me again?
Where is the, the identification of the insured?
-: The declarations page, which I believe
is record appendix volume one, page 82.
-: 82, okay thank you.
Kafker: I think it's, it's 81, isn't it?
-: 81, I apologize.
Now.
-: And so in this declarations page, what is your position
that DBA Super 8 means?
-: Well, that's a good question.
It is at the most, I can say it is their choice
of how they describe the insured.
At most, it clarifies perhaps that the Super 8
is also covered under Dipika, Inc.,
but it does not limit. -: But it would be redundant.
Nina: I'm sorry.
-: It would be redundant to say DBA Super 8
as exemplary, right?
Why would you, if it's all Dipika,
why would you DBA Super 8?
-: It, purely as a clarification.
There's nothing in the policy that tells us.
-: Clarification of who is the insured.
-: Or a clarification that is extended.
It's certainly not an unambiguous limitation.
-: Why not?
Why not?
-: Because it does not say this policy coverage
is limited to DBA Super 8.
-: Well, it does say that that is the named insured.
I guess I'm trying to figure out what does it mean
if it's not just Super 8.
-: Nothing in this policy tells us what that means.
-: But I'm asking you about this.
This, this declarations page is telling me something,
and I'm wondering under your construction of this policy,
what does DBA Super 8 mean?
You're just saying it's exemplary.
-: I'm saying it. I think it's inconsistent to give it
any legal significance under the policy,
where Massachusetts law does not recognize
a DBA as a legal entity.
Dipika, Inc. is the entity that is liable
for the payment premium.
-: So you're saying under Massachusetts law, this Tufts case,
the named insured must be a legal entity.
-: Yes, Your Honor.
The named insured it is, is a legal entity.
It's described as a corporation on the declarations page.
What we are saying is that notation of DBA,
unless it's otherwise addressed in the policy,
that one designation is not enough to unambiguously
limit the policy as required by this court and Tufts.
-: But, what does it mean?
Every word in a policy means something,
and I'm trying to figure out what your position is
as to what DBA Super 8 means.
-: Sure, to the extent it, it means anything.
-: And it must under our rules of construction.
-: I think the only explanation we can have is,
well, there's two.
It could clarify that the Super 8
is actually included in the coverage, or it is.
-: So why, can we stop there?
Why would that make any sense if Dipika, Inc.
does business as Super 8, why would it clarify that?
Why wouldn't you just say Dipika, Inc.?
-: Well, 'cause that's all DBAs are, right.
All DBAs are.
-: I know what a DBA is, but presumably Dipika, Inc.
does more than just the Super 8 business.
Kafker: That's a, is that true?
Does it do more or not?
-: No, I don't think it does.
I think it, I think the named insured is just,
the named insured is a description.
The DBA within that named insured is a description.
It is not a limiting factor under the policy.
If you look at the entire policy.
-: I'm aware of that, but I'm trying
to figure out what it means.
So, Dipika, Inc.
-: Honestly, I, I, I think it, it is,
if in fact the insurance company intended it
to be a limiting factor,
they did not do so appropriately, right,
and to the extent they made a mistake and they did not
limit it, they use that as a limiting,
to try to limit coverage, they didn't do so appropriately,
and the insured in this case cannot pay
for that sloppy drafting by the insurer.
-: Can I ask, you don't you don't make anything
of the next page?
I'm just going to page 82.
So on page 81, there's also at the bottom of the page goes,
location of all premises you own, rent, or occupy.
On the next page, it goes hotel, motels without pools
or beaches less than four stories.
Nina: Yes.
-: Is the Mason building, how many stories is that?
-: It is two stories and a basement.
I would also point out again that there's.
-: So, but you don't make an argument based on that.
You don't make an argument based on that, right?
I mean, I read a lot of briefs over the weekend,
but you don't, did you ever say, oh,
because of this second provision we're covered or no?
-: Well, that's certainly, it's all consistent
with our argument that nothing, it's not limited
to just one hotel or motel.
Dipika, Inc. was expanding.
It was the same coverage, hotel operations.
-: I'm confused.
So this guy operates a hotel somewhere.
Nina: Sure.
-: And then he buys, he be, he becomes an investor
in the Bellagio in Las Vegas.
So he's covered?
He, you know, so he buys some gigantic casino in Macau.
He's covered?
I mean, I'm just like, I, it doesn't make any sense to me.
You gotta pay for something if you want
more coverage, don't you?
-: He, if he is the, I think if he's just the investor there,
then that's a different circumstance, but if he is
the owner and it is bought under Dipika, Inc.
-: So let's do an example.
He buys the Ritz in Back Bay.
He becomes the owner of the Ritz,
some giant hotel that's brand new.
Is he covered under your interpretation?
-: Under Massachusetts law, commercial general
liability insurers take the risks that their insured
is going to expand businesses.
That's why these renewals come up every year, right?
Every year there's a renewal where the insurer steps in
and takes another look at the risk, but in the meantime,
as long as it's, we're talking about hotels and motels,
expanding to a hotel and motel under four stories,
and construction projects related thereto,
that's covered under this policy.
There's nothing that says it's not covered.
Wendlandt: How, in your view, could Union have limited
its coverage to the Super 8?
-: How could Union have covered it?
Sure, so we have an expert
who provided testimony that there.
-: I'm just dealing with contracts.
I'm not interested in, you know,
extra non-contractual evidence.
Why, how could he have limited?
-: Sure, there were three separate standard.
-: You're saying Super 8 was not a corporation, right,
and under your view of the Tufts case law,
the named insured must be a legal entity.
Super 8 is not a legal entity.
How, how does Union identify, we're,
we're covering Super 8 and that's it?
-: I understand, Your Honor.
Quite easily in, in two different ways.
The first way is under the endorsements.
Instead of, you know, again, endorsements
are pre-printed policy, pre-printed pages, right,
and then they type in, the insurance company types in
for each policy, what they want to cover
under that endorsement, and under these endorsements
Union typed in, all projects in all locations.
Gaziano: But that could refer back to the DBA, right?
-: They very easily could have said all,
all Super 8 projects, all Super 8 locations.
Gaziano: But they wouldn't have to,
they wouldn't have to, if the premise is that it's insuring
and you pay for insurance for just the DBA.
-: But the second reason, Your Honor, is that
there's also standard recognized insurance language
that gets added if you are trying to limit it
to a specific hazard or a specific operation
or a specific location.
We've outlined.
-: But if I, if I'm Union, and I want to do all projects,
all hazards, everything, but it's just the Super 8.
-: Sure.
There is, there is a specific provision,
I believe it's called the,
designated operations endorsement that they could put in
and say, I designate the coverage here to be limited
to the operations of the Super 8 in Weymouth.
That would unambiguously limit this policy to,
as the, as Union argues it's so limited.
That is not in this policy.
All we have is, is referenced in the DBA Super 8,
that no one knows what it means.
If we are looking at Massachusetts law, as.
-: When you say nobody knows what it means,
can you articulate what you mean by that?
-: Well, what I mean is we believe
it has no legal significance.
Wendlandt: Well, of course.
What's the legal argument? -: They, they believe
it's a limiting factor.
Under Massachusetts law, if Your Honors believe
that creates an ambiguity, then the insurance.
-: Oh yeah, then we get into all sorts of parole evidence
and yada, yada, yada, but if we think
it's clear, what's your position?
-: We think, we think it's clear because under
the Tufts case and under the GRE case, there needs to be
an unambiguous, specific limitation to the effect of,
coverage is limited to the Super 8 in Weymouth.
That, those, those words don't appear
anywhere in this policy.
Under GRE, to your point of what could they have done,
under the GRE case.
-: I, you know, the GRE case is really not helpful for you
because that just defined business type as office,
which was, you know, relative to whether or not
it was a hockey rink, not a particular office location.
How is that helpful to you?
-: The GRE case found that, although there were many more
descriptions of limitations than we had here,
it found that with the failure of the insurance company
to use specified insurance length,
standard insurance language, and an endorsement
to limit the policy was fatal to their argument
that the policy was limited.
That's exactly what we're saying here.
Budd: Okay, you got more than that,
more than you bargained for there.
Thank you very much.
Why don't we have Attorney Lawler now?
-: Good morning, Your Honors.
David Lawler on behalf of Dipika, Inc. and Jay Patel,
and I'm here to address the issues specifically
involving Dipika and Roblin, and really,
in reviewing the situation, you know, the first issue here
is the disclaim coverage by, by the insurance company Union,
with respect to the claim for coverage and whether or not
they should have actually indemnified and also provided
at a, at a very minimum of defense, you know,
to this matter.
The statual circumstances are very important.
Here, you have an issue where you have,
Dipika paid his premium, purchased a product.
It's a insurance, an invisible product,
but a product nonetheless, and comes and makes a,
a claim for relief under that product, and within a matter
of days, receives a letter threatening a lawsuit
from that insurance company to its own client saying,
if you persist with this particular avenue,
we're going to sue you.
My client at that point in time, Dika, Dipika found itself
in a very difficult situation where it was being threatened
to be sued by the Masons and various other individuals
and entities and clearly Union had not done
its due diligence and conducted a proper analysis in this
and issued a denial based upon the limited facts, you know,
in, under these circumstances and the claim at a minimum,
it had a duty to defend Dipika and then file a Dec action,
if, if that was, you know, that was the appropriate avenue
of, of relief and they failed to do so.
They issued, they got a claim, they issued a denial
and left their insured, you know, just hanging out to dry,
for lack of a better term but the,
the real meat of my argument, I want to address
towards the agency itself and Roblin
and the simple negligence.
I'm not, I want to be clear up front.
We're not claiming a special relationship here
with respect to the agent and the broker,
I mean, the, the client and the broker.
What we're claiming is that the actions of Roblin
in dealing with my client's request,
Dipika's request for coverage.
That's what they requested, he requested coverage.
Now he was inarticulate in requesting coverage.
-: What did he, why don't you use his exact words
and the exact response, the words of the response too,
'cause any, and then also get into the follow-up,
which he never bothered to respond to.
-: I think the exact words are, I have 'em written down here.
I need a rider for Dipika, Inc., Dipika,
naming the Quincy Masonic Temple Association
as a loss payee.
Those are the exact words.
-: He doesn't say to them, I just bought a hotel,
I mean, I just bought a giant building.
I need you to get me coverage
for this giant building, right.
He says, I got, I need something in 30 minutes
and I need them to become the loss payee for that, right.
-: But he never said, I need a certificate of insurance
and that's what he was given, and if you look
at the totality of the.
-: But that's 'cause that's all they could give him
based on the information they had.
-: I respectfully disagree.
They could've given him nothing.
Then that would have prompted.
-: Here's the problem though.
The problem is everyone gets in trouble
when they don't return telephone calls,
(justices laughing)
and she doesn't, they don't know what they want.
They're not sure, and then there's no return call back.
-: What they gave, they didn't, that's the issue,
and that's an issue of fact, Judge, as to simple negligence
and that's, and that's not for the trial judge.
That's for a jury, or a trier,
or a trier of fact respectfully.
What they did is, and this is important,
because you asked the response.
COI attached, okay, but the next three words.
For your records.
Not for the Masons, not for this or that, for your records.
He had requested something that he
reasonably thought an insurance matter.
Yes, yes, he used incorrect and un-insurancelike language,
but certainly language that a lay person, a person
in the hotel business might use, and the person
who should know the proper insurance language just guessed,
oh, you need a certificate of insurance,
and they gave him that and the totality of these actions,
the circumstances in themselves lead itself
to negligence because he asked for something.
They didn't know what it was so they gave him something
he didn't need and didn't want and said,
it's for your records.
Wendlandt: And then, and then
didn't they follow up though?
-: She, there was one email, but the, he received it.
There's a following email the other, the next day.
He thought he had received what he was asking for.
It didn't say, this is urgent, call me back.
It didn't say any of this.
It's almost, Judge, you know, I, you know, you know,
when you, you know, when do you stop looking for your keys?
When you find them, and in this situation,
he thought that he found what he needed
because the insurance broker gave it to him and said,
these are for your records.
He thought he was done.
He's trying to develop a hotel.
He's a busy guy and it's, it's hard to, you know,
and I know it's one of the faults of lawyers.
You need to return phone calls.
I couldn't agree with you more, Your Honor,
but the, the issue is simply, it's a, it's a negligent,
it's a negligence issue, and it's an issue of fact,
and I don't think that respectfully,
that the trial judge had the ability to, to judge that fact,
because here you have the actions.
It's not, I'm not alleging it's a certificate of insurance.
I understand the case law on that.
What I'm alleging is the total, the total circumstances
was, was negligent.
You have someone who comes to their agent, a professional,
and they made a mistake and they acknowledged
they made a mistake.
They gave him the wrong thing, and the simple transaction.
-: I don't think, they don't acknowledge they made a mistake.
They say the opposite, right?
They don't know what he wants.
He's left them a message.
He's also given them like 30 minutes
to respond or something.
What does he, how much time does he give them to respond?
Gives them, I need something right away.
What is his language?
-: I need a rider for Dipika, the email.
I don't think there was a time limit.
That's why I don't think there was a time limit.
I think we stressed.
-: I need to do a loss payee name of Quincy Masonic Temple,
and this is something I need right away.
-: But, but he didn't say I need a certificate of insurance
right away, and that's what they gave him.
-: I'm having trouble understanding why he would think
that he wouldn't have to pay anything extra, or there
wouldn't have to be some sort of discussion
about how he would get this.
I can't imagine, I mean, I know nothing about this insurance
and business and stuff like that,
but I would assume that if I'm asking for somebody,
for something completely different to be insured.
Well, I might have to pay extra for that.
-: I can't, I don't have a.
Well, I'll, I'll give an analogy.
I have a vehicle.
If I can give a true righ, I live in Cape Cod.
My child took her vehicle to Boston.
The premium goes up, they give notice.
They don't demand money right away.
They send your bill in the mail for the additional premium.
I mean, that could be the same circumstance.
-: What if you buy a race car, 'cause that's what this is?
It's not, you didn't, they didn't just add like,
a shack to their existing hotel.
They bought a gigantic building
and they're going to renovate it.
That's like, don't you have to pay for something that big?
It's different, and don't you have to let
the insurance company know, hey, I'm about to build,
I'm about to gut an old historic building,
and I want you to extend my insurance to this.
That's, that's a big deal in the insurance world.
-: But, also can I just add one part
to, to Justice Kafker's question?
The other part is, he's calling the broker.
This is a change to the policy, right?
So why is it even reasonable for him to think
that the broker can just amend the policy in this way
and not the company, not Union has to do it?
So the, the two parts to that.
You're, you're, you're, you're built, you're taking
this other thing on, and then you call up and say,
you got to change this for me, and it's not
the company he's calling.
It's, he's expecting that the broker is going to do this.
-: These are all great questions, and those conversations
may have happened had the broker not sent the certificate.
That's the issue.
It's the sending of the certificate
which makes him thinks he's covered.
Maybe he wasn't sophisticated insurance.
It's the sending of the certificate,
not the certificate itself.
It's the action, the physical action of sending
the certificate that places my client in a.
-: On that element, relying on that has, going back
to Chief Justice Budd's question, relying on that,
that came over pretty quickly, that certificate,
it has to be reasonable.
-: Well, I think it is reasonable because he asked for,
you know, a, I need, you know, essentially coverage.
I need to be a loss payee.
He was reasonable, and what he received.
Lowy: Is it reasonable to rely on that?
Are you sure? -: Absolutely, because it came.
-: On a huge new property.
-: Absolutely, Your Honor, because it came from his broker
and again, and it said for your records,
not, you know, here's something.
Wendlandt: Oh, isn't. -: That doesn't,
that makes it less likely that it's something
that's gonna be helpful to him.
If it's just for your records, that means,
you know, here's what you have.
Here's what you've already got.
David: I disagree, I disagree, Your Honor.
-: Doesn't it go even further?
In capital letters,
"this certificate is issued as a matter of information only
"and confers no rights upon the certificate holder.
"This certificate does not affirmatively
"or negatively amend, extend, or alter the coverage
"afforded by the policies below.
"This certificate of insurance does not constitute
"a contract between the issuing insurer's
"authorized representative and the certificate holder,"
right?
That's in bold print and the insurance company's
spoken clearly. David: With Witkowski.
I mean, the broker's spoken clearly, hasn't?
-: I mean, and according to Witkowski, I, I, I believe,
again, I believe it's the actions.
I'm not arguing.
I understand the statute on the certificate.
I'm not arguing that the certificate itself provides.
What I'm saying is, is that the action is,
this is a simple negligent case.
When you get a request and you don't understand
what that request is, and you assume something
and you provide some, a person who is not
in the insurance industry with a document,
that's the negligence, that's, that's the catch,
and I do think it's reasonable for him to rely upon
the fact, the fact that he has retained the services
of this business, he's provided the document at his request,
and I, and again, I think it's a, it's an issue of fact
and that, and it's not an issue of law, Your Honors.
I mean, now a jury could come back and say,
well, maybe that's not reasonable, but the question is,
that's not for the trial judge, I mean, the, the judge
who wrote the summary judgment opinion.
So that is an issue, and I keep going back to it,
but a fundamental basis of summary judgment,
we're not going to get into that.
We all know the standard and that.
Budd: Okay, we get it.
It's your fact that he shouldn't have
decided for himself, okay.
Thanks.
David: Thank you so much.
-: All right.
Okay, Attorney Maselek.
-: Good morning, Your Honors.
If it please the court.
My name is Robert Maselek and I represent
Union Insurance Company and Acadia Insurance Company.
We would urge the court to affirm the trial court's
granted summary judgment in this matter and hold that trust.
The big, the issue is that the insured risk here
is the Super 8 motel, and that since the allegations
in the underlying case didn't involve operations
of the hotel or allegations that the hotel
was involved somehow, that there was no duty to defend.
Just to clarify a quick point.
It was raised in page 82 of the record on the policy.
This 81 and 82 are the declarations pages.
Now this, this policy is for a business.
It's a combined first party property
and third-party general liability policy.
So there's actually a declarations page.
They all say they all identified the insured
as Dipika, Inc. DBA Super 8, but there's
a property-specific one, a general liability,
and then an overall common one, and so this one
that we were looking at earlier is the right one,
it's the commercial general liability one,
and so there's the Masons indicated,
well, there's no evidence as to how
the premium is calculated.
The premium as is reflected in 82 is calculated
based on the motel's revenue.
So that's the rating classification.
That's the type of building that the Super 8 is.
That's where it fits into.
There's multiple classifications,
depending on what type of business is.
-: It's not the clearest thing in the world though.
I mean, the, I mean, we, everything relates to this page 81,
although maybe it doesn't, but it goes named insured
and address, so that kind of borders it a little bit,
doesn't it, and cause we also go to on the corner of it,
says agency name and address and it's
Roblin Insurance, 144 Gold Street.
You know, it's, it's not drafted as clearly as possibly,
and I'm not saying it's not clear enough,
but there is, by putting the insured and the address
in the same thing, it gets a little weird,
a little harder to interpret doesn't it?
-: Yeah, I mean the property coverage covers that location.
It covers the Super 8 location.
There's a first party loss there.
If the roof blows off, if.
-: Yeah, but then let's turn to the next page for a second.
Why does it have plural hotels and motels,
less than four stories?
Is that the, is that, it's a classification?
Is that, it says Massachusetts location.
I'm just trying to get a sense of why.
-: If you look at the top, it's for Massachusetts location
number one and location number one on page 91 of the policy
is identified as the Weymouth Hotel.
It's to clarify that the premium, so this is
the general liability premium.
-: There's only, meaning there's only one location.
Location schedule, location number one
when we turn to page 91, is that?
-: Yes, the policy covers on the property, that location,
and for general liability, it covers
the operations of that hotel.
Now just to quickly get into it, there's an argument that,
oh, we might have intended to use
a designated premises endorsement,
which would limit the scope of the coverage to incidents
that happened at the hotel.
Someone slips and falls in the lot or something like that,
and the Union underwriter testified at 30(b)(6) deposition
that that really wasn't the intent at all.
It's to cover the operations of the hotel, right,
and I'll concede the hotel.
-: If they have a shuttle bus that goes somewhere,
and the shuttle bus hits somebody, they're covered.
-: It's hard to envision what a hotel could do out,
but, but there are, there are things that could happen,
and that's the GRE case where, that would be the GRE case
if the hotel people were out doing things,
other, other places, and that likely you can't tell
who likely would have been covered.
So that's just to clarify that the premium is in there,
and this other notion that this whole coverage determination
is based on a sole or single reference to it,
and I'll concede, well, there's multiple in
the declarations pages, but if you look at the second
most important part of the policy, which is
the basic coverage form, which is the,
it contains the insuring agreement and it's
a standard industry form, in the preamble.
It identifies within that form, you and your,
and, and defines those terms as the named insured,
and then it defines the term, insured, refers back
to the different part of the policy also
would include the named insured.
So every time in the, in the form, not to be flippant,
there's hundreds and hundreds of reference.
You know, if you do this regular contract interpretation,
incorporate that definition, every time the form says you,
it's putting Dipika DBA Super 8 right in there, you know,
so the basic coverage grant is we will pay those sums
that Dipika, Inc. DBA Super 8 becomes
legally obligated to pay as damages.
-: From this record, do we know
anything more about Dipika, Inc.?
Does it have other activities?
-: There's, there's a lot of discovery about that.
I believe when it first got the policy, no.
I would contend that, you know, Mr. Patel wears
his Dipika hat, his Super 8 hat, and his personal hat,
and as, as the Masons recognized, when we get,
if the case gets remanded, we will have
to litigate whether he was.
-: Does this record indicate that you also
insure these other entities of his?
Robert: No.
-: So you're only insuring Dipika, e, Dipika, Inc.
doing business as, in your mind.
-: Yes, there's a, there is a citation in the record.
-: And can I ask a followup question?
In this record, and I haven't read this record yet,
in this record, is there going to be indications
that other aspects of his business
are insured by someone else?
-: Yes.
In fact, he testified at his deposition that he is involved
in multiple other, either only himself or with other people,
I believe it's five or six other endeavors and that it was
his practice to have a separate policy for every endeavor.
-: With different insurance companies.
-: But not with, not with Union, Your Honor.
-: But again, I'm just relying on the record.
The record will show that Mr. Patel or Dipika, Inc.
has different insurance policies
for different parts of its business.
-: I don't know that those other businesses
are owned by Dipika, Inc.
I don't believe they are.
I believe when this policy incepted that this was the only,
it was the only thing that Dipika did, but, you know, so,
so, you know, we would rely on some recent cases
of this court, the.
-: Before you do that, can I ask you
one other follow up question?
The motion judge points out that there's not builder's risk
and that this is really a builder's risk type of insurance.
Does, if there was building on this property,
on the Super 8 in Weymouth, would it be covered?
The building, would it be covered under your policy?
-: Well, see, I believe that it's at that sort of
conflating the, the property, first party property,
but third party liability.
So arguably be covered by the first party liability,
if that covers the property, if it gets.
-: You're not talking to insurance lawyers,
so slow that down.
-: So coverage for the building itself, even if
it's caused by Mr. Patel or somebody else,
would be likely a covered loss under the property
without regard to fault or anything.
It's just, you know, there was a roof blew off
and it gets fixed.
This coverage we're dealing with today
is general liability policy.
So it would cover the general liabilities
of the Super 8 motel, that's what we are.
Again, shuttle, something else, or somebody sues them,
you know, it's designed for somebody suing them for,
and so here, you know, we basically say you don't get
to those other endorsements
or anything because you just,
you just don't get in through the front door.
The first thing you have to consider is who is the insured
in this case, and here, there was just no allegations
that the Super 8 was involved in any of that,
and recently in Dorchester Mutual versus Krusell
and earlier in First Specialty versus Pilgrim is to,
the two principals that I think, although,
although this is a matter of first impression,
if you apply these rules, I believe the answer is obvious,
and that's that every word in insurance policy
should be given effect if, if possible,
and that an interpretation of the policy that gives effect
to everything is favored over one that would render
language meaningless, and so at the end of the day,
you just have to ask yourself,
if, if, if the policy wasn't intended to be limited
to the operations of the Super 8,
why would you ever put the DBA limitation in there
and to address why, and the fact that nobody knows
what it means, it's, it's, it's,
there is evidence in the record that they do.
When Roblin obtained the policy, the application
for quotations indicated Dipika DBA Super 8,
and the testimony was that that was done to make it clear
that they were just seeking quotes
for the operation of the Super 8.
So ultimately, because the Super 8 wasn't involved,
that's why there's no coverage here.
-: The problem though with your argument is that
at the time the policy was obtained or issued,
the only operation of Dipika, Inc. appears
to be the Super 8.
-: True, but I don't believe that
that should be determinative.
It's the Super 8, which Dipika was free to do.
It could have been maybe, maybe it might be in this case
that it went and got itself involved
in this Masonic Temple project, and in that case,
our argument is it just, you know, it just doesn't fit
under the insuring agreement because it wasn't operating
as the, he wasn't wearing his Super 8 hat when he
was doing it, and there were no allegations that he was.
-: But if you hit it right, so say in your view,
I know you say he didn't do it here, but if Mr. Patel
had called up Union Insurance and his broker and said,
I bought a new property.
I want to insure it.
Does the insurance policy cover how that should be done?
Does it require that you add the location?
Does it require additional premium?
Do we have guidance from the document itself
about how to do that?
-: No, 'cause I believe earlier there was a reference
to this newly acquired property issue,
and that's in the property coverage.
So yes, if he, if he bought a new building and he wanted it
to be insured under this policy,
he would have to go out and tell the insurance company
about it and pay a premium for it to get
property coverage for it, and whatever entity was,
you know, he'd had to have general liability coverage
for whatever entity was doing the work
over at the Masonic Temple.
-: So, but what if he decided,
you know what I'm going to call that entity?
Super 8, then what?
-: Well, I would, I'd argue that, that if Super 8 knew,
I believe, there's no question as to Super 8 knowing.
So I would still say that.
-: Oh, but that's as to the location, as you explained
about the general liability insurance
and your general liability insurance covers
doing business as Super 8.
So if he said, I'm doing business as Super 8,
while I'm working on the Temple, why, what, what's the,
what's your argument in response?
-: That would be if, if there was, or we're only
really dealing with duty to defend.
So if there was allegations that the Super 8,
when he, that he was wearing his Super 8 hat
when he was doing this Masonic Temple project,
they likely would have been a duty to defend.
You know, there just were no allegations.
It was just, it was just Dipika that was doing it,
or that was alleged to do it, and there are sort of
dueling cases from other jurisdictions that we've raised,
I think ours.
-: Can you flesh that out a little bit, 'cause I'm trying to,
I wanna, is it just the name, it's just using the words.
So I'm, I'm confused by that particularly in light of
his request to the insurance broker, right?
Is it, what does this request to the insurance broker is,
does it use the word Super 8 in there?
-: No, he uses the word loss payee on his policy,
which is that, I'll admit, this is,
I'll concede this was the only policy
he had that was at issue.
-: But if he called up and said, I've turned the Mason,
I just bought the Mason property and I'm running that.
I'm going to run that as the Super 8 of wherever
the town, the Mason property is in.
That's, is that create a duty to defend on your part?
-: No, what to, what creates a duty to defend
are the allegations.
So if the allegations against him were that somehow
the Super 8 motel was involved, even though
those allegations would be meritless,
there's still a duty to defend.
-: But if he's expanding his brand,
he's creating another Dipika, Inc. Super 8,
and he's gonna do it out of the Mason hotel,
and that was what is in his head,
that I've created Super 8, you know, like the Hilton.
I've got another Hilton going on here.
Do you have a duty to defend under this policy
if that's what he alleged?
-: Well, no, because the focus isn't on what he.
The disconnect, I think, is it's not the focus on
what he's alleging, it's on what the person
suing him is alleging.
So it would depend on what they alleged,
and I'd submit if he was making a different Super 8
someplace else that, that there still
wouldn't be a duty to defend.
This policy is related to the risks arising out of
the operation of that Super 8 in Weymouth.
So if it's alleged that the Super 8 in Weymouth
was doing something wrong.
-: 'Cause didn't they, aren't they sort of alleging,
I understand they're not saying the Super 8 doing business
with that particular address, cause they're cutting off
the address, but are they arguably alleging that
he was doing business as Dipika Inc. Super 8
in the Mason area, or are they not alleging that?
-: My argument, my response would be that.
-: Again, we have to take the facts in the light
most favorable to them from this record.
-: But my argument is that they, they cut off
the Super 8 DBA in their arguments here, in every argument.
You know, they, they don't like the DBA Super 8,
but they didn't allege it in the underlying case,
and so just real quickly, there are cases
from other jurisdictions.
I think they're more, ours are more in the core
of the Massachusetts where people got involved
in two different businesses.
The insurance was related to one
and got in trouble in the other.
There was no coverage because it was on,
the bottom line is there is no need to put that language
in there if, it has to mean something.
Budd: Okay, thank you very much.
Robert: Thank you.
Budd: And finally, we have attorney Chapman.
-: Good morning.
May it please the court.
I'm William Chapman, I'm counsel for the appellee Roblin.
Over the last 40 years, the Supreme Judicial Court
and the Mass. Appeals Court have bestowed us
with a significant body of case law which defines the rights
and responsibilities of insurance agents and brokers
and producers in Massachusetts, and these cases
provide the practitioner, the public, and the professional
with a pretty clear roadmap.
It's a, it's a roadmap which pretty clearly defines
when an agent may or may not be found liable
to its customers, such as Dipika, or to a third party,
such as the Masons, and we respectfully suggested
in this appeal the appellants,
both the appellants ignored this road map.
As a matter of fact, as I stand before you, what we've heard
so far is not a single word from the Masons.
Now we, because we have two very distinct claims here,
we have a third-party Bishop beneficiary claim made
by the Masons, and we have a, a direct E&O claim by Dipika.
Wendlandt: Why isn't your client's negligence
a question of fact?
-: It's not a question of fact because there was no
genuine issue of material fact here.
-: Well, you're, you know, the, the insured leaves,
right over here, insured leaves a message
that's unintelligible, you provide a document
that is non-responsive, and then you leave
a message or an email, and again it's not responded to.
Why isn't that a question of fact
that needs to go to the jury?
-: Because it's an extreme departure from the type
of request that is actionable in a case like this,
and I believe what the judge found is that
Mr. Patel's request on the telephone,
and again, I'm going to quote from it,
"I need to do a name loss payee
"of Quincy Masonic Temple Associates,
"and this is something I need right away."
Kafker: Well, he actually said,
I need a rider for Dipika, Inc., right?
-: That's the email.
The phone, the phone message was,
"I need to do a name loss payee
"of Quincy Masonic Temple.
"This is something I need right away."
The email was,
"I need rider for Dipika, Inc.,
name Quincy Masonic Temple Association, loss payee."
So I, I believe the judge found that, that's not the type
of request that's actionable, and, and, and the judge
was also considering that phone message and that email,
we agree that those are the only two communications,
in light of the records surrounding the request, okay,
and we start with, there's extensive evidence
in the record of what led to that phone call and that email.
It starts with the Masons' own lawyer, Mr. Levin.
This is at record, Roman numeral 466.
I need an insurance certificate.
(paper rustling)
Then they, then we have the Mason's principals,
Mr. Elsner and Mr. Smith testifying,
we stopped the work that Mr. Patel was doing in the building
until he provided a certificate of liability insurance,
and that was Mr. Smith's testimony.
Mr. Elsner testified, you have to stop work
until we have a copy of the insurance certificate,
and then we have Mr. Patel.
Now this is very important.
Mr. Patel testifies, and I'm now referring
to record appendix three, 595.
"'I got a phone call from Mr. Elsner,
"'and Mr. Elsner, he asked me to send him
"'a certificate of insurance.'
"'And so Mr. Elsner called you?'
"'Yes.'
"'And he said he needed you to send him
"'a certificate of insurance?'
"'Yes.'
"'And are you saying as a result of getting that phone call
"'from Mr. Elsner, you then placed that voicemail
"'phone call to Roblin?'
"'Yes.'"
-: But counsel, there's a problem here.
You have all of these folks in to, to allude
to Justice Kafker's earlier point
that aren't in the insurance business.
Okay, they're not in the insurance business,
and it's clear that what the concern the Masons have
are that we are covered if something goes wrong.
They're not necessarily interested in making sure
that Patel has the certificate of insurance
that covers anything that he's doing covers him.
They want to know that they're covered, right?
-: I disagree with that, Your Honor.
That's typically not the purpose of a certificate
of insurance and Lauren Luke testified to that.
-: Sure, but Lauren Luke's testifying
in favor of your position.
I'm talking about for, for the other side, right?
So in the conversations that they had with Patel,
they wanted to be sure that they were somehow covered
if something were to go wrong.
-: No, that's not the record, Your Honor.
They, that, that's one of the
interesting things about this case.
The Masons were unanimous in their testimony.
We're just asking for a certificate.
We do not, we want to be covered, and that's,
that's, that's not unusual.
-: They don't want a certificate in an abstract way.
They want, they've got some guy doing construction
work on their historic, giant building and they will,
they want to know if he sets the place
on fire, that they're covered.
William: Sure.
-: That's what they're asking.
Now, they may, they may not, they may be
negligent themselves in how they respond to all this,
but they want coverage for the construction
going on in their building.
That's obviously what they're asking, and, and then
Mr. Patel calls up, your client, to give them that,
but he doesn't explain that to your client.
He just says, I need a Dipika paying loss to the Masons.
Does your client have an obligation to say, huh?
-: We say, absolutely not, Your Honor, and,
and the case law is crystal clear.
The, the, the Masons, what their motivation is,
what they want from Patel is irrelevant,
unless there's evidence in the record on summary judgment,
that, that, that Roblin has actual knowledge of that.
Roblin has to know, and this is the Quigley case
that I was personally involved in.
-: Is that all that's left, the liability
between Roblin and the Masons?
Isn't there a separate question of, of the liability
of Roblin to, to, to Dipika?
-: Sure, yeah, that's, and that's.
Wendlandt: So sticking with that liability.
William: Okay, so.
-: Why isn't there still a question of fact as to
whether or not your client was negligent when they get
a voicemail and an email that's unintelligible,
they provide what they think is responsive,
and then they send an email and then nothing.
-: Well, the first thing I'd say to that, Your Honor,
is we're talking about a claim that was not pleaded.
The negligence claim of Patel was premised upon
a specific request that Roblin bind sufficient
builder's risk coverage to cover the cost of replacement
of the building and contents of the Masonic temple.
That's not what Mr. Patel said on that voicemail,
and that's not even close to anything Roblin
knew of or agreed to, and, you know, again, it's, it's,
summary judgment is to discover whether or not
there's a genuine issue of material fact.
Patel's voicemail and his email, they don't raise
a genuine issue of material fact because what he was asked,
what he had just been asked to produce and what was
in his mind, Mr. Schreckinger's own questions elicited this,
what was in his mind when he said those words was,
he wanted a certificate of insurance,
and then he got a certificate of insurance,
and then Roblin followed up to say, are you sure,
you know, this is what you want?
What's, what is the relationship?
Mr. Patel freely admits I didn't get back to them
because I got what I wanted, a certificate of insurance.
So, you know.
-: Is there a duty?
I'm over here.
Is, is, is there a duty to, to, to nudge a little more
than a, a call and an email when the stakes might be?
-: No, no, Your Honor.
That's Rayden versus Church and all the cases
that come after it since 1958.
The duty that applied here, and we heard Mr. Lawler
acknowledge that this is not a special circumstances case,
and if it's not a special circumstances case,
the duty is to obtain the requested insurance,
and that's what was done.
Mr. Patel admitted that in his deposition.
He admitted that he came to us, he asked us
for motel insurance for the Super 8 in Weymouth,
and we got that for him.
He also asked for worker's comp for that operation.
We got that from him.
We at all relevant times fulfilled the duty.
We obtained the requested insurance,
and in this situation with this certificate,
you know, we, we, we went one step further
than we needed to.
We did a follow-up call and, and Mr. Patel didn't bother
to respond because he got what he had been asking for,
which was a certificate of insurance,
not separate coverage for a Masons' building,
not separate coverage, which he knew he needed.
He testified to that, and that's in
the summary judgment record.
You go into a new business, you've got a new operation,
you get a new policy.
He did testify, and Mr. Maselek was correct,
that there's a whole list of other operations
he was involved with, other motel operations,
none of them through Roblin, none of them through Union,
and, but he knew for all those other operations,
he had to get a new policy every single time.
He did that, and does this voicemail, and does this email,
does that amount to a request for insurance for,
for this Masons, significant Masons project?
Not even close, Your Honor.
Budd: Okay, thank you very much.
William: Thank you, Your Honor.
Budd: We'll take our morning break.
Bailiff: Court, all rise.