First Mercury Insurance Company v. Connie's Silverbrook Cafe, LLC, et al.,

Filing 52

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered: As follows. Based on the disputes of fact, Plaintiffs Motion for Summary Judgment (Dkt. No. 31 ) is hereby DENIED. In addition, the record contains disputed issues of factregarding the good fait h of Plaintiffs investigation of this insurance claim, thereby rendering allowance of Defendants Cross-Motion for Summary Judgment inappropriate. That motion (Dkt. No. 38 ) is therefore hereby DENIED, aswell. Following oral argument, counsel provide d diverse perspectives on where the case should go following rulings on the pending motions. With this in mind, the court orders counsel to confer and to submit, on or before July 22, 2013,a proposed schedule for completion of all additional pretrial proceedings. In the event that disagreements render a joint proposed schedule impossible, individual proposals may be submitted by the July 22, 2013 deadline. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
FIRST MERCURY INSURANCE
COMPANY,
Plaintiff

)
)
)
)
v.
)
)
CONNIE’S SILVERBROOK CAFÉ, LLC, )
CONSTANCE E. D’ANDREA, ANDRE
)
P. D’ANDREA, JOHN DUFOUR, AS
)
ADMINISTRATOR OF THE ESTATE OF )
ERIN DUFOUR, & PAMELA BALSAMO, )
Defendants
)

C.A. No. 12-cv-30079-MAP

MEMORANDUM AND ORDER REGARDING
CROSS-MOTIONS FOR SUMMARY JUDGMENT
(Dkt. Nos. 31 & 38)
June 27, 2013
PONSOR, U.S.D.J.
Counsel for all parties except Defendant Pamela
Balsamo, who has not filed any answer or other responsive
pleading, appeared before this court for argument on the
cross-motions for summary judgment on June 27, 2013.
The record demonstrates that there are clearly disputed
issues of fact regarding the status of the person who served
the liquor to Balsamo on the fatal evening, specifically
whether that person enjoyed the status of an “employee” or a
“volunteer.”

This distinction, so far as the record

indicates at this time, is determinative of coverage in this
case.

If the individual who served the alcohol was an

employee, coverage is unlikely; if she was a volunteer, it
appears that there is coverage.

In addition, disputed

issues of fact exist as to the impact of the alleged
fifteen-day grace period, and the precise significance of
the fact that there was a supplemental application in this
case.

Indeed, during oral argument, it appeared that the

absence of a signature on the original application may have
rendered that document invalid in some way.
Based on these disputes of fact, Plaintiff’s Motion for
Summary Judgment (Dkt. No. 31) is hereby DENIED.

In

addition, the record contains disputed issues of fact
regarding the good faith of Plaintiff’s investigation of
this insurance claim, thereby rendering allowance of
Defendants’ Cross-Motion for Summary Judgment inappropriate.
That motion (Dkt. No. 38) is therefore hereby DENIED, as
well.
Following oral argument, counsel provided diverse
perspectives on where the case should go following rulings
on the pending motions.

With this in mind, the court orders

counsel to confer and to submit, on or before July 22, 2013,
a proposed schedule for completion of all additional
pretrial proceedings.

In the event that disagreements

render a joint proposed schedule impossible, individual
proposals may be submitted by the July 22, 2013 deadline.
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It is So Ordered.

/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

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