Shepperson v. Metropolitan Property and Casualty Insurance Company

Filing 39

Judge Douglas P. Woodlock: MEMORANDUM ORDER entered granting 25 plaintiff's Motion for Partial Summary Judgment; denying 28 defendant's Motion for Summary Judgment. The parties are directed to submit a joint status memorandum and proposed scheduling order on or before June 15, 2018 presenting a process to be followed to bring this case to final judgment. A scheduling conference is hereby set for June 19, 2018 at 2:00 pm in Courtroom 1. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

SUSAN SHEPPERSON,
Plaintiff,
v.
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE CO.,
Defendant.

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CIVIL ACTION NO.
16-12116-DPW

MEMORANDUM AND ORDER
May 22, 2018
The question presented is whether Mass. Gen. Laws ch. 175,
§ 99 assures property damage coverage for an innocent named
insured when an unnamed co-insured resident of the premises they
share intentionally sets those insured premises afire.
Plaintiff Susan Shepperson, the named insured of the insurance
policy before me, seeks to establish that she is entitled to
coverage irrespective of whether the fire which damaged her
residence was caused by her son, who I find to be an unnamed coinsured and also a resident of the premises.

Concluding that

the policy may not exclude coverage for Ms. Shepperson as an
innocent co-insured, I will grant her summary judgment
establishing the insurer’s liability on her contract claim.
In reaching my conclusion that the insurer is liable on the
contract claim, I have followed a somewhat different path from
that pursued by Ms. Shepperson in her motion.

I conclude first

that by its plain terms, the policy does exclude coverage.

I

nevertheless also conclude that such an exclusion is barred
under Massachusetts law.

Once the illegal exclusion is excised

from the policy, Ms. Shepperson is entitled to coverage, so long
as she was innocent of involvement in the fire which caused the
injury for which she seeks damages.
insured entitled to damages.
ripe for resolution.

I find she is an innocent

The amount of damages is not yet

I will consequently look to the parties to

formulate a plan for resolving the issues that remain
outstanding following my grant of Ms. Shepperson’s motion for
partial summary judgment so as to bring this case to final
judgment promptly.
I. BACKGROUND
A.

Factual Background
Ms. Shepperson is the sole owner of the residential

property located at 47 Larchmont Road in Salem, Massachusetts
(“the premises”).

She maintained a homeowner’s insurance policy

(“the policy”) with Defendant, Metropolitan Property and
Casualty Insurance Co., identified as policy number 1190421841;
the policy coverage was effective July 13, 2015 to July 13,
2016.

The policy provided coverage for the premises.

Ms.

Shepperson is the sole named insured on the policy.
1.

The Policy

The policy included, in relevant part, the following

2

language:
The terms of this policy impose joint obligations on all
persons defined as you.

This means that the

responsibilities, acts and failures to act of a person
defined as you will be binding upon another person defined
as you.
“You” and “your” mean:
1. the person or persons named in the Declarations and if a
resident of the same household:
A. the spouse of such person or persons;
B. the relatives of either; or
C. any other person under the age of twenty-one in
the care of any of the above . . . .
SECTION I – LOSSES WE COVER
(SPECIAL PERILS) . . .
COVERAGE A – DWELLING AND COVERAGE B – PRIVATE STRUCTURES
We will pay for sudden and accidental direct physical loss
or damage to the property described in Coverages A and B,
except as excluded in SECTION I – LOSSES WE DO NOT COVER.
COVERAGE C – PERSONAL PROPERTY
We will pay for sudden and accidental direct physical loss
or damage to the property described in Coverage C when loss
or damage is caused by SECTION I – BROAD NAMED PERILS,
except as excluded in SECTION I – LOSSES WE DO NOT COVER.

3

SECTION I – LOSSES WE DO NOT COVER
(SPECIAL PERILS)
1. We do not insure under any Section I coverage for any
loss which would not have happened in the absence of one
or more of the following excluded events.

We do not

insure for any such loss regardless of:
(a) the cause of the excluded event;
(b) other causes of the loss; or
(c) whether such causes acted at the same time or in any
other sequence with the excluded event to produce or
contribute to the loss.
These exclusions apply whether or not the excluded event
results in widespread damage or affects a substantial
area.

The excluded events are listed below.

A. Intentional Loss, meaning any loss arising out of any
intentional or criminal act committed:
1. by you or at your direction; and
2. with the intent to cause a loss.
This exclusion applies regardless of whether you
are actually charged with or convicted of a crime.

In the event of such loss, no one defined as you or
your is entitled to coverage, even people defined

4

as you or your who did not commit or conspire to
commit the act causing the loss.
2.

The Incident and Claim History

On March 4, 2016, a fire caused significant damage to the
premises and to the personal property contained within.

Ms.

Shepperson made a report of the loss to Metropolitan the next
day.

Metropolitan sent Ms. Shepperson a letter on March 7,

2016, acknowledging the receipt of her claim.
On March 9 and again on March 28, Metropolitan sent Ms.
Shepperson a letter informing her of “a potential coverage
problem for [her] recent claim.”

Moreover, in accordance with

its rights under the policy, Metropolitan requested that Ms.
Shepperson cooperate with its investigation into the fire,
provide an examination under oath, and produce pertinent
documentation and information in support of her claim.

Her

examination under oath was conducted on April 21, 2016.
Metropolitan also scheduled the examination under oath of
Scott Shepperson, Ms. Shepperson’s eldest son, for April 21,
2016.

This scheduled examination was the subject of notice

provided in letters dated March 24, 2016 and March 31, 2016,
sent to Scott at the premises and at 3 Whipple Street in
Danvers, Massachusetts.1

When Scott failed to appear for his

1

3 Whipple Street, Danvers, Massachusetts, is the address where
Ms. Shepperson and Scott were living after the fire.
5

scheduled examination under oath, Metropolitan notified Ms.
Shepperson’s counsel that “Scott Shepperson qualifie[d] as ‘you’
under the policy, and as such [wa]s obligated to cooperate with
Metropolitan’s investigation and provide an examination under
oath[,]” and that until that was done Metropolitan could not
“make a final determination on the coverage available to [Ms.
Shepperson].”
3.

Ms. Shepperson’s Examination Under Oath

In her examination under oath, Ms. Shepperson testified
that she owned the premises and that no one else had an
ownership interest in it on the date of the fire.

She said that

on the day of the fire no one other than she, Scott, and another
son Eric Shepperson, were living at the premises.

She testified

that she was not at home at the time of the fire because she,
along with her daughter, Beth DiSessa, and her two
granddaughters, traveled to Holyoke, Massachusetts to visit her
brother for the night.

Ms. Shepperson testified that Scott, who

was on a scheduled layoff from work at the time, however, was
home when the fire occurred.
Ms. Shepperson learned about the fire around 11:45 PM that
evening during a phone call from her neighbor.

When she spoke

to Scott that night, he told her that he “accidentally set the
house on fire” and that he was “so sorry.”

Ms. Shepperson

testified that Scott told her he had noticed that the snow

6

blower needed gasoline so he filled the gas can, which was
ordinarily kept in the garage, with gasoline and brought it
inside the house.

She said Scott had described to her that as

he was walking through the house, he smelled gas and it appeared
that the gas can was leaking.

Ms. Shepperson further testified

that Scott told her that “[h]e took a cigarette out of the
package, put it in his mouth, walked through the back hall, took
a kitchen match, lit the match and was walking out to the deck
to light his cigarette . . . when he struck the match, . . . the
place exploded.”
When asked whether Scott had always lived at the house, or
whether there was a period of time that he lived somewhere else,
Ms. Shepperson responded, “No.
in Newport on campus.

When he was in college, he lived

But that was many years ago.”

When

asked, “But other than that, he's lived at the house?” she
answered, “Yes.”
On July 28, 2016, after the parties had exchanged several
communications, Ms. Shepperson’s counsel sent a demand letter to
Metropolitan’s legal counsel, pursuant to the provisions of
Mass. Gen. Laws ch. 93A, alleging that Metropolitan’s acts and
failures to act violated the provisions of Mass. Gen. Laws ch.
176D and ch. 93A; the demand letter requested an offer of
settlement within thirty days.

In response, Metropolitan’s

legal counsel sent a letter to Ms. Shepperson’s counsel

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rejecting the demand.

A month later, Metropolitan issued a

letter denying Ms. Shepperson’s claim in its entirety.
4.

Scott’s Deposition

Metropolitan conducted Scott’s deposition in this case on
April 4, 2017.

In that deposition, Scott described the premises

as his “permanent address.”
his driver’s license.

The premises address appeared on

He testified that, prior to March 4,

2016, he had never had an apartment or owned a house of his own.
Scott testified that he worked for DN Tanks and had been
working for the company since 2007.

His job required him to

travel to job sites all over the country.

He testified that he

“basically lived in hotel rooms for the past ten years, nine
years.”

Because of the demands of his job, he effectively

“live[d] out of a suitcase.”
When he came back to Massachusetts from time to time he
would either stay at the premises, at his sister Beth’s house,
at a hotel, or with friends.

Scott testified that he had his

own bedroom at the premises.

He acknowledged that he did not

exclusively use the bed in his bedroom at the premises, but that
his “[u]ncles, family, cousins” did also.

He reported that the

room was used “as a guestroom when [he was] not around.”
Scott testified that “[s]ome of the clothes in [the dresser
in the room] might have been [his].”

He said that he would

leave some of the clothes he did not take with him on his work

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trips in his closet.

Scott testified that his mother would

“keep[] some of her stuff in the closet if she need[ed] room, if
her closet [wa]s full”; she would sometimes even store extra
blankets and pillows in the closet, he said.

Scott testified

that although he kept some of his clothes at the premises, he
did not keep his toiletries in the bathroom of the premises,
rather he carried them in a travel bag and took them with him
wherever he would go.
Scott further testified that he used the premises for
purposes of mail for his official documents.

The documents he

provided to Metropolitan’s legal counsel all included the
premises as his address.

For example, his motor vehicle’s

Registry of Motor Vehicles form had the premises as both his
mailing address and his residential address.

His motor

vehicle’s registration also had his mailing address as the
premises.

Notably, his motor vehicle insurance policy with

Metropolitan included the premises as his mailing address and he
confirmed that he did not have any other residential addresses.
Scott’s 2014 and 2015 tax returns indicated his home
address as the premises.

His 2016 W-2 forms also specified the

premises as his address.

Scott confirmed that he did not have

any tax records that indicated that he lived somewhere other
than the premises.

His credit card statements, Sprint bill, and

excise taxes for his motor vehicle all designated his address as

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the premises.

Scott testified, however, that he paid his bills

online.
Scott testified that, while he did not own the premises and
that his mother did, he was not financially dependent on Ms.
Shepperson.
B.

Procedural History
Ms. Shepperson originally filed this action against

Metropolitan in the Essex County Massachusetts Superior Court on
September 26, 2016.

She alleged five counts against

Metropolitan: (I) declaratory judgment, (II) unlawful invasion
of privacy,2 (III) breach of contract, (IV) infliction of
emotional distress,3 and (V) unfair or deceptive business
practices under M.G.L. c. 176D, § 3 and M.G.L. c. 93A, § 2.
Metropolitan removed the case to this court pursuant to 28
U.S.C. § 1446(a) on the grounds of diversity of citizenship
jurisdiction under 28 U.S.C. § 1332(a)(1).

Ms. Shepperson

presses a motion for partial summary judgment on the declaratory
judgment and breach of contract claims.

Metropolitan presses

its own cross motion for summary judgment, but does not specify
as to which counts.4

2

The privacy count was later dismissed pursuant to a
stipulation in accordance with the provisions of Federal Rules
of Civil Procedure Rule 41(a)(1)(ii).
3
The parties have not as yet sought action by the Court with
respect to the emotional distress count.
4
Metropolitan has, however, indicated that it is not moving for
10

II. STANDARD OF REVIEW
Summary judgment is appropriate when there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

“An issue

is ‘genuine’ if the evidence of record permits a rational
factfinder to resolve it in favor of either party.”

Borges ex

rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4 (1st Cir. 2010).
“A fact is ‘material’ if its existence or nonexistence has the
potential to change the outcome of the suit.”

Id. at 5.

The movant “bears the initial burden of informing the trial
court of the basis for his motion and identifying the portions
of the pleadings, depositions, answers to interrogatories,
admissions, and affidavits, if any, that demonstrate the absence
of any genuine issue of material fact.”

Id. (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91
L.Ed.2d 265 (1986)).

Once such a showing is made, “the burden

shifts to the nonmoving party, who must, with respect to each
issue on which she would bear the burden of proof at trial,
demonstrate that a trier of fact could reasonably resolve that
issue in her favor.”

Id. (citing Celotex Corp., 477 U.S. at

summary judgment on Ms. Shepperson’s G.L. ch. 93A, § 9 claim.
In the absence of further specification, I will treat
Metropolitan as pursuing a cross motion for summary judgment
only as to the counts subject to Ms. Shepperson’s partial motion
for summary judgment.
11

324, 106 S. Ct. at 2553).

“[S]ummary judgment cannot

[, however,] be defeated by relying on improbable inferences,
conclusory allegations, or rank speculation.”

Ingram v.

Brink’s, Inc., 414 F.3d 222, 229 (1st Cir. 2005).

“[T]he facts

are viewed in the light most favorable to the nonmovant . . .
and all reasonable inferences are drawn in the nonmovant’s
favor.”

Id. at 228.

It is settled that “[c]ross-motions for summary judgment do
not alter the basic Rule 56 standard, but rather simply require
[the court] to determine whether either of the parties deserves
judgment as a matter of law on facts that are not disputed.”
Adria Int’l Grp., Inc. v. Ferre Dev., Inc., 241 F.3d 103, 107
(1st Cir. 2001).

Consequently, “a court must rule on each

motion independently, deciding in each instance whether the
moving party has met its burden under Rule 56.”

Dan Barclay,

Inc. v. Stewart & Stevenson Servs., Inc., 761 F. Supp. 194, 19798 (D. Mass. 1991).
III. ANALYSIS
Ms. Shepperson argues that her son, Scott, was not “a
resident of the same household” for insurance purposes, and that
she and Scott did not have a joint and nonseverable interest in
the policy.

She also argues that the provisions of Mass. Gen

Laws ch. 175, § 99 preclude a homeowner’s insurer from declining
coverage to an innocent insured, such as her.

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For its part,

Metropolitan contends that Scott was a “resident” of the
premises covered by the policy and, under the policy definition
of “you”, was an unnamed insured on the policy.

Metropolitan

contends that Ms. Shepperson is not entitled to recover for
damages caused by the March 4, 2016 fire if it is determined
that Scott intentionally set the fire because under the policy
no insured — whether named or unnamed — is entitled to coverage
for an intentional loss even if they “did not commit or conspire
to commit the act causing the loss.”
Interpretation of “the language of an insurance contract is
a question of law for the trial judge[.]”

Cody v. Conn. Gen.

Life Ins. Co., 439 N.E.2d 234, 237 (Mass. 1982).

“Like all

contracts, if the language of an insurance policy is
unambiguous, then . . . the words [are construed] ‘in their
usual and ordinary sense.’”

Boazova v. Safety Ins. Co., 968

N.E.2d 385, 390 (Mass. 2012) (quoting Citation Ins. Co. v.
Gomez, 688 N.E.2d 951, 952 (Mass. 1998)).

However, “if the

contract is ambiguous, ‘doubts as to the meaning of the words
must be resolved against the insurance company that employed
them and in favor of the insured.’”

Cody, 439 N.E.2d at 237

(quoting August A. Busch & Co. of Mass., Inc. v. Liberty Mut.
Ins. Co., 158 N.E.2d 351, 353 (Mass. 1959)).

Furthermore,

“[e]xclusions from coverage are to be strictly construed”

13

against the insurer.

Vappi & Co. v. Aetna Cas. & Sur. Co., 204

N.E.2d 273, 276 (Mass. 1965).
The burdens of proof regarding coverage shift depending
upon the nature of the provision at issue.

“An insured bears

the initial burden of proving that the claimed loss falls within
the coverage of the insurance policy.”
390.

Boazova, 968 N.E.2d at

Once this initial burden is met, “the burden then shifts

to the insurer to show that a separate exclusion to coverage is
applicable to the particular circumstances of the case.”

Id.

Lastly, “where the insured seeks to establish coverage through
an exception contained within an exclusion to coverage, the
burden shifts back to the insured to prove coverage for the
claimed loss.”
A.

Id.

Ms. Shepperson’s Motion for Partial Summary Judgment
Ms. Shepperson bears the initial burden of proving that a

loss within the coverage of the policy occurred, specifically,
she must show that her damages resulted from “sudden and
accidental direct physical loss or damage to the property.”
Further, she must prove that the fire was not caused by someone
defined as “you” under the terms of the policy.

Ms. Shepperson

asserts that (1) she is the named insured on the policy, (2) the
policy provides coverage for loss caused by fire, unless
otherwise excluded, and (3) a fire occurred on March 4, 2016,
damaging the dwelling, rendering it uninhabitable, and causing

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personal property loss.

These facts are undisputed for purposes

of her motion for partial summary judgment.

Metropolitan,

however, contends an exclusion is applicable for intentional
loss caused by a relative of Ms. Shepperson resident at the
premises.
1.

Resident of the Same Household

Ms. Shepperson contends that Scott is not an insured under
the policy because he is neither a “resident” of the premises
nor a member of her “household.”

She characterizes Scott as “an

independent adult who merely stayed at the [p]remises on
occasion, but did not live there regularly so as to fairly be
considered a member of her household.”

Alternatively, Ms.

Sheppperson contends more broadly that “[e]ven if Metropolitan
were able to prove that Scott intentionally caused the [f]ire,
his actions would have no bearing on [her] contractual right to
coverage.”
The central issue on this branch of her motion is whether
Scott meets the definition of “you” or “your” as defined by the
policy.

The policy outlines the terms as, “The person or

persons named in the Declarations and if a resident of the same
household: . . . The relatives of either . . . .”

Resolution of

this question, through application of the facts, is a question
of law.

Vaiarella v. Hanover Ins. Co., 567 N.E.2d 916, 919

(Mass. 1991).

15

Unlike the terms “resident” and “household,” the definition
of “relative” is straightforward.

The term has been defined as

“a person connected with another by blood or affinity.”

Andrade

v. Aetna Life & Cas. Co., 617 N.E.2d 1015, 1017 (Mass. App. Ct.
1993) (quoting Black’s Law Dictionary 1289 (6th ed. 1990)).

It

is undisputed that Scott is Ms. Shepperson’s son; therefore, he
is her relative.
By contrast, “[t]he Supreme Judicial Court has held that
because ‘modern society presents an almost infinite variety of
possible domestic situations and living arrangements, the term
‘household member’ can have no precise or inflexible meaning.’”
Metro. Prop. & Cas. Ins. Co. v. Morel, 802 N.E.2d 592, 595
(Mass. App. Ct. 2004) (quoting Vaiarella, 567 N.E.2d at 920).
“Consequently, determining whether someone is a member of a
‘household’ must ‘proceed on a case-by-case basis with an
evaluation and balancing of all relevant factors.’”

Id.

(quoting Vaiarella, 567 N.E.2d at 920).
In Morel, the court noted that the inquiry into whether
someone is a member of the same household is “more subtle” than
“mechanical . . . particularly since, as the Vaiarella court
noted, it is possible, in some circumstances, to have a
residence in more than one place at the same time.”
at 595.

802 N.E.2d

As Morel observed, the Vaiarella court itself set forth

several factors relevant for such a determination and “[a]mong

16

the nonexclusive factors mentioned . . . are whether the
putative member of the household has an established connection
to it; whether he receives mail at that address; whether he
keeps possessions there; and whether his relationship to other
household members involves financial support.”

Id. at 596.

See

also Vermont Mut. Ins. Co. v. Stevens, 882 N.E.2d 870 (Mass.
2008) (unpublished) (Vaiarella factors to be considered are:
“(1) whether the individual has an established connection to the
named insured’s household; (2) whether the individual uses the
same address as the named insured’s household for perfunctory
matters, such as receiving mail, registering a car, or on a
driver’s license; (3) in the case of an accident, whether the
individual went to the named insured’s household or to a
different address after the accident; (4) whether the individual
has a financially dependent relationship with the named insured;
and (5) the subjective intent of the individual to become a
member of the named insured’s household.”).
The question for the court in Morel was whether, at the
time of the accident, the named insured’s son resided in his
father’s household, even though the father lived apart from the
family home, i.e. the insured premises.

802 N.E.2d at 594.

When he was still in high school, the named insured’s son
intermittently lived on his own, with friends, or with his
grandmother, but at some time before his accident he moved back

17

into the family home, the insured premises, to live with his
mother.

Id.

At the same time, the named insured remained

actively involved with his family at the insured premises, where
he was frequently present, and of which he was the co-owner.
Id. at 596.

The named insured received mail at the address,

performed substantial household tasks, and retained significant
financial responsibility for his wife and sons, including the
continued purchase of insurance for their benefit.

Id.

These

facts were held to establish the named insured’s household at
the premises.

Id.

The Morel court found that “the only

remaining inquiry [wa]s whether, at the time of the accident,
[the son] was a relative residing there” and answered that he
“[u]nquestionably” was “since that was where he had lived,
received mail, and kept his belongings.”

Id.

Consequently, the

court concluded that the named insured’s son was an insured
under the policy.

Id. at 597.

A similar question was presented in Vaiarella where the
court determined a mother was not a member of her son’s
household for the purpose of receiving underinsured motorist
coverage under her son’s automobile insurance policy.
Vaiarella, 567 N.E.2d at 917.

She and her husband lived in a

mobile home in Florida for half of the year and in Brockton,
Massachusetts with their son for the other half of the year.
Id. at 918.

The mother and her husband were not financially

18

dependent on their son and her husband had registered the car in
Florida and obtained a driver’s license there.

Id.

They

received mail both at their Florida home and at their daughter’s
home in East Boston.

Id.

While driving from Florida to

Massachusetts, the mother was involved in an automobile accident
in which her husband was killed.

Id.

The Vaiarella court concluded that the mother only spent
roughly four months living with her son before moving to Florida
and prior to that, had maintained a separate household for over
forty years.

567 N.E.2d at 919.

“The plaintiff’s claim to

membership in her son’s household [wa]s based almost entirely on
future intentions and not on an established arrangement to
which she was returning.”

Id. at 919-20.

The court noted that

the mother and her husband did not receive any mail at their
son’s home.

Id. at 920.

The Florida license and car

registration were also considered factors.

Id.

Moreover, the

court noted that the mother returned to her daughter’s home
after the accident, not to her son’s.

Id.

More ambiguously,

the court determined that the mother did not depend on her son
for financial support.

Id.

The court reasoned that “[i]t is

normally to be expected that, when one member of a family
provides financially for other members of the family, that
person will also provide insurance coverage for those other
members of the family.”

Id.

While it is true that economic

19

dependence is of significance in such a context, it remains only
one factor in a multi-factor analysis.
In the record before me, Ms. Shepperson has explained that
Scott lived at the premises, except for when he was in college.
Scott corroborated this explanation when he testified that the
premises was his “permanent address,” the same address that
appeared on his driver’s license.

While Scott testified that

when he came back to Massachusetts sometimes he would either
stay at the premises, at his sister Beth’s house, at a hotel, or
with friends, it is important to note that at the time of the
fire, he was following his usual practice while in Massachusetts
of living with his mother at the premises.

Furthermore, unlike

in Vaiarella where the mother was not returning to a household
where she had long been a member, Scott remained a putative
member of his mother’s household because he did not have his own
household.
Although Scott may not have had an exclusive room at the
premises, since other family members would often stay in the
room when they were visiting and he was not present, he did have
a room that he considered as his own.

He kept some of his

clothes that he did not take with him on his work trips at the
premises.
Scott also used the premises for purposes of mail for his
official documents.

Notably, his own motor vehicle insurance

20

policy with Metropolitan included the premises as his mailing
address.
To be sure, in Straker v. Commerce Ins. Co., 811 N.E.2d 525
(Mass. App. Ct. 2004) (unpublished), a son did not qualify as
insured under his mother’s policy because he used his mother’s
address only as the equivalent of a post office box because he
moved frequently.
he moved among.

But in Straker the son had other apartments

Scott had no such practice.

Similarly, I

recognize that in Holyoke Mut. Ins. Co. v. Carr, 546 A.2d 1070,
1071 (N.H. 1988), the son was held not insured under his
father’s policy as a resident of his father’s household for
insurance coverage purposes, despite his association with his
parents’ residence, listing his parents’ address on his driver's
license, visiting his parents frequently, and continuing to
receive mail at his parents’ home.

What differentiates Scott’s

circumstances from those cases is that Scott had not procured an
apartment elsewhere.
In Vermont Mut. Ins. Co. v. Stevens, 882 N.E.2d 870 (Mass.
2008) (unpublished), the court concluded that the son’s
financial independence of his parents for living expenses
weighed in favor of concluding that he was not a “resident”
under the policy.

Similarly here, Scott testified that he was

not financially dependent on Ms. Shepperson.

Scott, however,

also testified that he did not pay rent at the premises; thus,

21

his mother was financially supporting him (to some degree) by
providing housing allowing him to live rent-free at the one
location he could, his home.
Scott’s travel requirements for his job introduce a
variable into the equation for calculating whether he is a
resident of the same household as Ms. Shepperson.

In its

opposition, Metropolitan contends that Ms. Shepperson points to
no other residence, in the world, that could be considered
Scott’s “residence” at the time of the fire.

Metropolitan

states that Scott has never owned property in his life, and,
other than for less than two years when he was in college, has
never had anything approximating a residence other than the
insured premises.

There is considerable merit to this argument.

The cases that Ms. Shepperson has included in her memorandum of
law in support of her partial summary judgment motion involve
more than one viable premise where the party could be a
resident.

Here, the only other “residences” that Scott can

point to are the motels and hotels where he stayed when he was
on the road working.

Scott explained that due to the demands of

his job, he effectively “live[d] out of a suitcase.”
Allstate Ins. Co. v. Patterson, 344 S.E.2d 890 (Va. 1986),
also speaks to this issue.

There the son was not insured under

his father’s policy because of the “erratic nature of his
residential contacts with his father’s household.”

22

Id. at 893.

The Patterson court concluded that “[f]rom the time [the son]
became a member of the Renegades [motorcycle gang] until the
moment of the accident, he led an existence best described as
nomadic, with no regular place of residence, either at his
parents’ home or elsewhere.”

Id.

Unlike Scott’s situation, the

son in Patterson had specific places, the Renegades’ clubhouses,
where he would stay.

Scott, on the other hand, would stay at

hotels and motels, premises designed specifically for
unaffiliated transients.
After taking all of the factors into consideration and
weighing them inter sese, I find that the totality of the
factors fully establishes that Scott was a resident of the
premises under any current and common sense definition of that
term.

Consequently, in the absence of some supervening legal

principles, the policy by its terms would provide no coverage
for Ms. Shepperson.
2.

Innocent Co-insured & M.G.L. c. 175, § 99

Ms. Shepperson contends alternatively that even if Scott
were considered an insured under the policy, any intentional
acts which he may have committed would not preclude recovery by
an innocent insured, such as herself.

Specifically, she claims

that “[t]o the extent that the language of the [p]olicy purports
to exclude coverage for an innocent insured for a loss caused by
the intentional acts of another insured, it is inconsistent with

23

the scope of coverage afforded by the standard fire policy
dictated by statute in M.G.L. c. 175, § 99, and must therefore
be deemed unenforceable as a matter of law.”
The legislative development of § 99 is important.

“By

St.1951, ch. 478, Massachusetts adopted a statutory policy based
upon what is known in the insurance field as the ‘standard
policy’, a form originally adopted in New York in 1943.”

In-

Towne Rest. Corp. v. Aetna Cas. & Sur. Co., 402 N.E.2d 1385,
1389 (Mass. App. Ct. 1980).

The statute, in relevant part,

provides:
No company shall issue policies or contracts which, . .
. insure against loss or damage by fire . . . to property
or interests in the commonwealth, other than those of
the standard forms herein set forth [inapplicable
exceptions omitted]. G.L. c. 175, § 99.
Ms. Shepperson claims that the provisions of M.G.L. c. 175,
§ 99 prescribe a statutory form for fire insurance policies.
She maintains that because of this statute, Metropolitan may not
limit coverage for fire damage beyond what is permitted by the
statute.

Ms. Shepperson further contends that Scott did not

have a joint and nonseverable interest in the policy and that
Metropolitan’s reliance on Kosior v. Cont’l Ins. Co., 13 N.E.2d
423 (Mass. 1938), is misplaced.
At the outset, I must determine whether the 1938 Kosior
decision survived the 1951 modification of Mass. Gen. Laws ch.
175, § 99.

The court in Kosior held that the policy at issue

24

was joint and that the innocent co-insured could not recover
because of her husband’s intentional act of burning the insured
buildings.

13 N.E.2d at 425.

The decision acknowledged the

standard form of fire insurance policy provided by Mass. Gen.
Laws ch. 175, § 99, in its pre-1951 form.

Id. at 424.

The

Kosior court qualified its acknowledgment by noting that “[e]ach
party to a contract of insurance is entitled to have it
interpreted according to the words used.”

Id.

Mass. Gen. Laws ch. 175, § 99 does not unambiguously
reference an innocent co-insured’s coverage under the standard
policy, nor does it concern itself with joint interests in
insurance policies.

Consequently, it is appropriate to conclude

that Kosior’s narrow holding, finding the innocent co-insured
could not recover due to the joint nature of the policy,
survived the 1951 modification of Mass. Gen. Laws ch. 175, § 99.
Kosior and the statute coexist.
The Supreme Judicial Court has not explicitly overruled, or
otherwise refined Kosior, although, the issue has been raised.
See Baker v. Commercial Union Ins. Co., 416 N.E.2d 187, 190 n.9
(Mass. 1981) (“[W]e do not reach the issue whether the rule that
an innocent insured is barred from recovery by the intentional
burning of the property by another insured is still sound
policy.”); USF Ins. Co. v. Langlois, 12 N.E.3d 1034, 1037 (Mass.
App. Ct. 2014) (“We do not address the defendants’ argument

25

regarding the Massachusetts standard form policy because this
issue was raised for the first time on appeal and therefore is
deemed waived.”).
When the issue was raised in federal court in Yerardi v.
Pacific Indem. Co., 436 F. Supp. 2d 223, 247 (D. Mass. 2006),
Magistrate Judge Dein also declined to address the issue and
reiterated that the Massachusetts courts have not reassessed
whether the rule set forth in Kosior “that an innocent insured
is barred from recovery by the intentional burning of the
property by another insured is still sound policy.”

She

nevertheless concluded that the holding in Kosior “has remained
the state of the law in Massachusetts, despite the fact that
other jurisdictions now diverge from this construction.”

Id. at

248 (quoting Courtney v. The Commerce Ins. Co., 1993 WL 818906,
at *2 (Mass. Supp. Aug. 27, 1993)).
This is a less than fully developed area of Massachusetts
state law that must be evaluated with care, caution and
deference.

“[A] federal court exercising diversity jurisdiction

is the functional equivalent of a state court sitting in the
forum state.”

Ticketmaster-New York, Inc. v. Alioto, 26 F.3d

201, 204 (1st Cir. 1994).

Moreover, “[i]t bears noting that

only one Massachusetts court, the Supreme Judicial Court, may
definitively prescribe binding rules of decision on matters of
Massachusetts law” for both state courts and federal courts

26

sitting in diversity.

Vertex Surgical, Inc. v. Paradigm

Biodevices, Inc., 648 F. Supp. 2d 226, 231 n.2 (D. Mass. 2009).
If the Supreme Judicial Court has not had the opportunity to
speak on the issue, “the federal court must make an informed
prophecy as to the state court’s likely stance.”

Id. (quoting

Andrew Robinson Int’l, Inc. v. Hartford Fire Ins. Co., 547 F.3d
48, 51 (1st Cir. 2008)).

Lower state court decisions are not

binding although they may provide guidance to the federal court,
and are entitled to some weight.

Id.

Therefore, federal courts

sitting in diversity take on a role similar to that of the lower
state courts in the “articulation and application of state law
on issues not directly and authoritatively addressed by the
SJC.”

Id.
Ultimately, the question before me is what would the

Supreme Judicial Court do if this case was before it?

Cf.

Icenhour v. Cont’l Ins. Co., 365 F. Supp. 2d 743, 748 (S.D. W.
Va. 2004) (“Inasmuch as there is no controlling authority, the
court must forecast how the supreme court of appeals would treat
the exclusion at issue in this case vis-a-vis the Standard
Policy.”).

It is necessary for me to forecast what the state of

the law in Massachusetts is.

In this connection, however, it

does not escape me that Metropolitan removed this case from
state Superior Court to federal District Court but is now
suggesting that I should not consider the current scope of

27

coverage for innocent co-insureds under developing Massachusetts
law as articulated recently by two state Superior Court judges.
The Defendant cannot use removal to escape confrontation with
that developing state law.5

5

I recognize that “[f]ederal courts faced with a determinative
legal issue that is close or difficult, where no controlling
Supreme Judicial Court precedent exists and policy issues of
general applicability are implicated, may certify questions to
the Supreme Judicial Court.” Vertex Surgical, Inc., 648 F.
Supp. 2d at 231 n.3. The First Circuit has directed that
“[b]efore this discretionary decision is even considered,
however, [the federal court] must first undertake [its] own
prediction of state law for [it] may conclude that ‘the course
[the] state court [ ] would take is reasonably clear.’” Nieves
v. Univ. of Puerto Rico, 7 F.3d 270, 274-75 (quoting Porter v.
Nutter, 913 F.2d 37, 41 n.4 (1st Cir. 1990)). In performing
this undertaking, “the federal courts may refer to analogous
decisions, considered dicta, scholarly works, or other reliable
sources to ascertain how the highest court would rule.” Losacco
v. F.D. Rich Constr. Co., Inc., 992 F.2d 382, 384 (1st Cir.
1993).
The First Circuit when confronted with a similar
circumstance as is before me, characterized the defendant’s
“effort to cram this square peg of a diversity case into a round
state-law hole [a]s particularly disconcerting under the
circumstances . . . .” Putnam Resources v. Pateman, 958 F.2d
448, 470 n.25 (1st Cir. 1992). The court emphasized that “[i]t
was [the defendant] which chose a federal forum, electing to
bring suit against [the plaintiff’s insurance broker] in Rhode
Island’s federal district court instead of suing in a New York
state court[,]” id., and then observed “[w]e are reminded once
again ‘that litigants who reject a state forum in order to bring
suit in federal court under diversity jurisdiction cannot expect
that new trails will be blazed.’” Id. (quoting Ryan v. Royal
Ins. Co. of Am., 916 F.2d 731, 744 (1st Cir. 1990)).
Metropolitan, a sophisticated litigant that has rejected a state
forum — perhaps because analogous Massachusetts Superior Court
decisions in Hall v. Preferred Mut. Ins. Co., No. HDCV201400781,
2015 WL 4511760, at *3 (Mass. Supp. May 1, 2015) and Liberty
Mut. Ins. Co. v. Gonzalez, No. ESCV20151794B, 2017 WL 3080565,
at *4 (Mass. Supp. June 12, 2017), have evidenced an
unwillingness to embrace its theory of innocent insured
28

It is undisputed that several jurisdictions, other than
Massachusetts, have addressed the language of the Standard
Policy by closely analyzing the distinction between the terms
“a(ny) insured” and “the insured,” and have taken the view that
an innocent co-insured should not be barred from coverage.

See

Streit v. Metro. Cas. Ins. Co., 863 F.3d 770, 773-74 (7th Cir.
2017) (“The term ‘the insured’ is not defined in the Standard
Fire Policy.

But as noted by many states interpreting identical

language, the inclusion of the word ‘the’ as opposed to ‘an’
serves as a limitation.”); Icenhour, 365 F. Supp. 2d at 750, 751
(“The overwhelming number of courts confronting the issue have
held there is a significant distinction between a standard
policy’s use of ‘the insured[,]’ and the typical fire insurance
policy’s use of the phrases ‘an insured’ . . . in a coverage
exclusion . . . .

[Therefore,] [t]he Standard Policy exclusion,

as construed, permits an innocent co-insured to recover policy
proceeds even when a fellow insured engages in arson that
destroys the insured property and premises.”); Century-Nat’l

exclusion, see infra 31-33 — sought a different court system to
pursue its theory. As the First Circuit has held to be the
proper course, I now undertake my own prediction of state law by
referring to “analogous decisions, considered dicta, scholarly
works, or other reliable sources to ascertain how the highest
court would rule.” Losacco, 992 F.2d at 384. I do not find it
necessary in making that prediction under the circumstances to
resort to certification, with its attendant delay and needless
imposition on the resources of the Supreme Judicial Court.

29

Ins. Co. v. Garcia, 246 P.3d 621, 624 (Cal. 2011) (“unlike
policy exclusions that refer to ‘an’ insured or ‘any’ insured,
exclusions based on acts of ‘the’ insured are construed as not
barring coverage for innocent coinsureds”); Trinity Universal
Ins. Co. v. Kirsling, 73 P.3d 102, 106 (Idaho 2003) (“The great
weight of persuasive authority shows that courts have found
language referring to ‘the insured,’ such as that found in the
standard policy exemptions, provides coverage to an innocent coinsured . . . .

We too hold that the language of the standard

policy provides coverage for an innocent co-insured.”); Watson
v. United Servs. Auto. Ass’n, 566 N.W.2d 683, 691 (Minn. 1997)
(“the legislature’s use of ‘the insured’ in the Minnesota
standard fire insurance policy evinces a general intent to
compensate an innocent co-insured spouse despite the intentional
acts of the other insured spouse.”); Lane v. Sec. Mut. Ins. Co.,
747 N.E.2d 1270, 1272 (N.Y. 2001) (“Through use of the language
‘the insured’ in the standard policy, the statute delineates
independent liabilities and obligations as to each insured to
refrain from incendiary acts.”); Nangle v. Farmers Ins. Co. of
Ariz., 73 P.3d 1252, 1257 (Ariz. Ct. App. 2003) (“The increased
hazard provision in Arizona’s Standard Policy, by using the term
‘the insured’ rather than ‘any insured’ or ‘an insured,’
evidences an intent to allow recovery by innocent coinsureds.”).

30

While it is prudent to be in alignment with other
jurisdictions interpreting the Standard Policy, Massachusetts
would not be bound by their decisions.

Nevertheless, when

reviewing standard policy provisions, the Supreme Judicial Court
has expressed an interest “in giving § 99 the same treatment
that is given to identical language in policies issued in other
States.”

Pappas Enters., Inc. v. Commerce & Indus. Ins. Co.,

661 N.E.2d 81, 83 (Mass. 1996).
To be sure, Magistrate Judge Dein was correct in her 2006
Yerardi decision when noting that “Massachusetts courts ha[d]
not considered whether the legislature’s use of the term ‘the
insured’ demonstrate[d] an intent to apply the policy exclusions
only to a specific insured who ha[d] engaged in misconduct and
not to innocent insureds.”

436 F. Supp. 2d at 250.

That,

however, is no longer the case; the issue has been addressed
more recently by two thoughtful Superior Court decisions.
In Hall v. Preferred Mut. Ins. Co., No. HDCV201400781, 2015
WL 4511760, at *3 (Mass. Supp. May 1, 2015), Judge Ferrara noted
that insurers may not limit coverage for fire damage beyond what
was permitted by the statute.

He examined the language of the

standard policy as well as the relevant statutory scheme to
determine whether the insurer could exclude coverage.

Id.

He

found that the Legislature intended the term to be bounded by
its deliberate use of “the insured” in lieu of a more inclusive

31

term, such as “any insured,” or a more restrictive term, such as
“named insured.”

Id. at *6.

He concluded that the innocent co-

insureds were entitled to coverage under the insurance policy.
Id. at *7.

Judge Ferrara, of course, was parsing policy

language somewhat different from that before me, but it is
apparent his analysis was influenced by the developing consensus
that an innocent insured may not be deprived of coverage under
these circumstances.
In Liberty Mut. Ins. Co. v. Gonzalez, No. ESCV20151794B,
2017 WL 3080565, at *4 (Mass. Supp. June 12, 2017), the insured
argued that if the policy was interpreted to bar coverage for an
innocent co-insured, it must be reformed to provide the level of
coverage allowed for by M.G.L. c. 175, § 99, which he claimed
allowed recovery by an innocent co-insured.

Judge Lang reviewed

appellate authority in other states and noted that he was
“satisfied that, although not unanimous, the overwhelming weight
of appellate authority in other states addressing the very issue
presented . . . support[ed] [the insured’s] position.”
*6.

Id. at

Consequently, he adopted the reasoning of those other

courts and held that the insured was entitled to judgment as a
matter of law that the policy covered the loss.

Id.

Focusing on the facts before me and considering carefully
what the Supreme Judicial Court would be expected to do, I
predict that the SJC would conclude that M.G.L. c. 175, § 99

32

provides coverage for innocent co-insureds in these
circumstances.

Needless to say, there has been substantial

development in this area of the law since the Supreme Judicial
Court’s 1981 decision in Baker to refrain from addressing the
issue whether a broad reading of Kosior is sound policy.
N.E.2d at 190 n.9.

416

The clear trend has been in favor of

allowing innocent co-insured coverage.

I see no reason why the

Supreme Judicial Court would not join in the reasoning of its
sister jurisdictions, especially when it has expressed an
interest “in giving § 99 the same treatment that is given to
identical language in policies issued in other States.”
Enters., Inc., 661 N.E.2d at 83.

Pappas

In this connection, I find

both Hall and Gonzalez to be persuasive as expressions of
current Massachusetts law.6
The language of the policy here states that “no one defined
as you or your is entitled to coverage, even people defined as
you or your who did not commit or conspire to commit the act

6

I note that the insurance defendants in Hall and Gonzalez
chose not to pursue to the Supreme Judicial Court the question
of whether their policies could exclude innocent insureds. The
Hall court reported its decision for review, and it was taken up
by the Supreme Judicial Court for direct appellate review. See
Hall v. Preferred Mut. Ins. Co., No. HDCV201400781, 2015 WL
4511760 (Mass. Supp. May 1, 2015), appeal docketed, No. SJC11922 (Mass. July 30, 2015). However, the case was thereafter
dismissed based on a stipulation between the parties. The
Gonzalez case was also apparently resolved without appellate
review.
33

causing the loss.”

This language is clear and unambiguous.

The

provision suspends coverage for all insured parties — even those
who were innocent of any wrongdoing — when any insured party
causes an intentional loss.

The gravamen of the issue on this

branch of the motion, however, is not whether the policy
language is clear, but rather whether the policy provision
complies with the mandate of M.G.L. c. 175, § 99.

I conclude

the exclusion, while clearly expressed, appears prohibited in
this circumstance by § 99.

Accordingly, Ms. Shepperson, if

found to be innocent of causing the fire to her premises, would
presumably be able to recover under the policy.
B.

Metropolitan’s Motion for Partial Summary Judgment
At this point in my analysis, I have agreed with

Metropolitan’s contention that Scott was an unnamed co-insured
on the policy.

From this premise, Metropolitan relying on

Kosior — which I have observed, see supra at 25, can coexist
with § 99 — argues that if Scott intentionally set the fire, it
has no obligation to make insurance benefits payments to or for
Ms. Shepperson under the policy for the fire.
In essence, Metropolitan contends that Ms. Shepperson
cannot be covered under an innocent co-insured theory because
her interests and Scott’s interests in the policy are
necessarily joint and nonseverable.

Metropolitan’s heavy

reliance on Kosior is the foundation for its contention that

34

because “Scott qualifies as ‘you’ for purposes of the
intentional or criminal acts exclusion, . . . his obligation to
avoid intentionally damaging the insured premises was joint with
[Ms.] Shepperson’s.”

I view this contention as a leap too far.

In Kosior, both co-insureds were named parties to the
policy allowing for their readily apparent joint interests.

As

my colleague Judge Hillman observed when serving on the
Massachusetts Superior Court, “the determination of the question
whether an innocent coinsured may recover on fire insurance
after another coinsured has intentionally burned the covered
property ordinarily depends upon whether the interests of the
coinsured are joint or severable . . . .

In the instant case,

the obligation to refrain from intentional loss is a joint
obligation, as it applies to loss caused by any named
[insured].”

Theriault v. Mut. Fire Ins. Co, No. 960074, 1999 WL

791926, at *2 (Mass. Supp. Aug. 27, 1999) (emphasis supplied).
Here, Scott was not a named insured.

Metropolitan relies upon

case law where the policy expressly names both the innocent
insured and the putative wrongdoer as insureds.

It has not

provided authority where the putative wrongdoer has been found
to hold a joint interest in the policy as an unnamed insured
under the policy, such that it precludes an innocent insured’s
coverage under the policy.

Metropolitan has also failed to

adduce any evidence to establish that Ms. Shepperson and Scott

35

have a joint and nonseverable interest in the policy.

In fact,

the two plainly have separate interests in what they can claim
under the policy.
The alignment of named insureds, who jointly agree to an
insurance policy, may justify holding each named insured
responsible for the acts of the other.

Such an alignment does

not exist between a named insured and an unnamed insured
sufficient to find the named insured, without more, jointly and
severally responsible for any insurance loss of which she is
innocent.
Metropolitan contends that M.G.L. c. 175, § 99 does not
define the term “the insured” and thus does not restrict how it
may be contractually defined.

As explained in Section III.A.2.

of this memorandum and order, the general trend has been in
favor of allowing innocent co-insured coverage, regardless of
the standard policy’s absence of the definition for “the
insured.”

Accordingly, Ms. Shepperson, if found that she is

innocent of causing the loss, would be able to recover under the
policy because of the consensus, which I find to have been
adopted in Massachusetts, supporting coverage for an innocent
co-insured.
C.

Ms. Shepperson’s Established Innocence
Given the legal rulings I have made to this point, I now

turn to focus analysis on whether Ms. Shepperson is an innocent

36

co-insured as a matter of law who can recover under the policy,
despite the purported exclusion.

While not extensively briefed

by the parties, the innocent owner issue as to Ms. Shepperson
herself has been adequately presented to me.
I find no evidence in the record — whether offered by
Metropolitan, or otherwise — to suggest that Ms. Shepperson
herself committed, directed, or conspired in any intentional or
criminal act to cause the fire.
To be sure, in opposition to Ms. Shepperson’s motion,
Metropolitan, in a footnote, observes that when Scott was asked
at his deposition whether he told Ms. Shepperson that he was
going to set the fire before doing so, Scott asserted his
constitutional rights against self-incrimination.

Metropolitan

states that under Massachusetts law, I may draw a negative
inference against Ms. Shepperson under those circumstances.

In

Lentz v. Metropolitan Property and Casualty Insurance Co., the
SJC used the factors outlined in LiButti v. United States, 107
F.3d 110 (2d Cir. 1997) to determine whether to admit a
nonparty’s invocation of the privilege substantively.
N.E.2d at 542-43.

768

The court found that the defendant there had

introduced sufficient evidence to establish a joint venture
between the plaintiff and the two nonparty witnesses who invoked
their privileges against self-incrimination.

37

768 N.E.2d at 543.

The Lentz court stated that “[i]n criminal cases, each
member of a joint venture is deemed to be the agent of the other
when acting in furtherance of the common objective . . . [and
concluded that] [t]here is no reason why the same principle
should not apply in civil cases.”

Id.

Because of the

relationship between the parties and this principle, the court
found that “a jury could reasonably infer that invocations of
the privilege [by the nonparty witnesses] in the circumstances
were made on [the plaintiff’s] behalf, rather than mere personal
invocations of their right not to testify.”

Id.

Nonetheless,

the court emphasized that “the jury need only be instructed that
they are permitted, but not required, to draw an inference
adverse to a party from a witness’s invocation of the privilege
against self-incrimination, and that they should not draw such
an inference if they find that the witness invoked the privilege
for reasons unrelated to the case on trial.”

Id. at 545.

Ultimately, the Lentz court concluded that the lower court
judge’s decision was not erroneous because the defendant
provided sufficient evidence to establish a joint venture
between the plaintiff and the two nonparty witnesses
Metropolitan has not met the Lentz predicate here.

There

is no evidence to establish a joint venture between Ms.
Shepperson and her son, Scott, sufficient to draw an unfavorable
inference against Ms. Shepperson based on Scott’s invocation of

38

his privilege against self-incrimination.

Unlike in Lentz, the

record makes clear Ms. Shepperson was entirely unaware of
Scott’s incendiary activities and did not endorse them directly
or by implication.
By contrast to Metropolitan, Ms. Shepperson has actually
provided evidence not turning on some strained construct of
adverse inference regarding the question of her innocence.

The

record shows Ms. Shepperson was away from the insured premises
at the time of the fire and that she had no involvement in
causing the fire.

Metropolitan has adduced no evidence to

suggest otherwise and did not even bother to ask about her
involvement during her examination under oath.

In fact, Ms.

Shepperson testified during her examination under oath that
Scott told her that he accidently caused the fire.

Whether

Scott’s actions that resulted in the fire were accidental or
intentional is of no consequence to Ms. Shepperson’s claim,
given her own lack of involvement in the fire and consequent
lack of any intent, actual or constructive, to cause it.
The record before me establishes as a matter of law that
Ms. Shepperson is an innocent insured.

Metropolitan has not

contested this issue sufficiently to identify a genuine issue of
material fact.

Accordingly, I will grant Ms. Shepperson’s

motion for summary judgment with respect to Metropolitan’s
liability as to Count Three, her breach of contract claim.

39

The

correlative effect is also to grant summary judgment of Count I,
Ms. Shepperson’s request for a declaratory judgment on the
issue.
D.

Chapter 93A Claim
Although Metropolitan has not expressly moved for summary

judgment on Chapter 93A, §9 claim made in Count V of Ms.
Shepperson’s Complaint, it maintains that “[t]he very existence
of the legal debate [Ms.] Shepperson asked this Honorable Court
to join militates in favor of dismissal of her c. 93A, §9
claim.”

Metropolitan’s argument appears persuasive at this

point in the litigation.
In Peterborough Oil Co. v. Great Am. Ins. Co., 397 F. Supp.
2d 230, 244 (D. Mass. 2005) (citing Polaroid Corp., 610 N.E.2d
at 916), Judge Saylor noted that “[i]f [the defendant insurance
company] improperly denied coverage but its disclaimer was based
on a reasonable or plausible interpretation of the policy, it
did not violate chapter 93A.”

Similarly here, Metropolitan’s

interpretation of the scope of Kosior, while erroneous, was not
unreasonable or implausible.

Under the circumstances, Ms.

Shepperson will have great difficulty demonstrating
Metropolitan’s decision to litigate this matter to this point
was an unfair or deceptive business practice within the meaning
of ch. 176D or ch. 93A.

40

E.

Emotional Distress Claim
Neither party has as yet addressed the emotional distress

claim made in Count IV of Ms.

Shepperson’s Complaint.

As with

the Chapter 93A claim, this claim does not appear promising for
Ms. Shepperson at this point in the litigation.

I share the

views expressed by Magistrate Judge Dein in Yerardi regarding
such a claim in the insurance coverage context.
Supp. 2d at 244-45.

Yerardi, 436 F.

Nothing in the record of which I am now

aware suggests Ms. Shepperson will be able to establish all the
elements either of intentional or negligent infliction of
emotional distress.
IV. CONCLUSION
For the reasons set forth above, it is hereby ORDERED that
Ms. Shepperson’s motion [Dkt. No. 25] for partial summary
judgment is GRANTED to the degree that she has established
Metropolitan is liable for breach of contract, as claimed in
Count III, and that she is entitled to a declaratory judgment so
holding, as claimed in Count I.

For the same reasons

Metropolitan’s motion [Dkt. No. 28] for summary judgment is
DENIED.

The parties are directed to submit a joint status

memorandum and proposed scheduling order on or before June 15,
2018 presenting a process to be followed to bring this case to

41

final judgment.

A scheduling conference is hereby set for June

19, 2018 at 2:00 p.m. in Courtroom 1.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

42