The Appeals Court has overturned a trial judge’s order dismissing a lawsuit against Norfolk & Dedham Mutual Fire Insurance Company.
The lawsuit was filed by Angeliki Papadopoulos who used Norfolk to insure her commercial real estate on 1-3 Commercial Street in Braintree, Massachusetts.
The building was joined to a neighboring property by a party wall. That wall was demolished in February 2017, just one month before Angeliki’s side of the building became vacant.
When the party wall was demolished, the interior walls of Angeliki’s property became exposed to the elements and this resulted in extensive water damage. Angeliki did not notice the water damage until January 2018–nearly one year after the property became vacant.
She filed a claim with Norfolk. Unsurprisingly the insurance company scoured Angeliki’s policy and found several reasons for denying her claim.
Norfolk argued, in part, that the “vacancy provision” of their contract with Angeliki freed them from liability. That provision states
If the building where loss or damage occurs has been vacant for more than [60] days consecutive days before that loss or damage occurs, [Norfolk] will not pay for any loss or damage caused by…water damage.
Angeliki, by her own admission, vacated the property in January 2017. The water damage was not discovered or reported for over a year. Accordingly, Norfolk’s lawyers filed a motion to have her lawsuit dismissed. The motion was allowed by the trial judge and this appeal followed.
While the Appeals Court agreed that the “vacancy provision” absolved Norfolk from water-damage liability, the same was not true for the damage done to the roof when the party wall was demolished.
Angeliki vacated the insured building in January 2017. The demolition causing the damage was done in February 2017–within only 30 days of vacancy.
The Appeals Court writes,
While we agree with the judge that the water damage is barred by the vacancy provision, the same is not true with respect to any damage that the demolition caused to the roof itself. Norfolk has not presented any other viable theory for why Papadopoulos’s claim for damage to the roof fails as a matter of law. We therefore vacate so much of the judgment as dismissed Papadopoulos’s claims that Norfolk was liable for damage to her roof (including those claims based on alleged violations of G. L. c. 93A and c. 176D that relate to such damage) and remand this case for further proceedings consistent with this
The full opinion is attached below.