VERMONT MUTUAL INSURANCE COMPANY vs. PAUL POIRIER & others.
Yesterday the SJC issued this case which is of importance to Massachusetts Landlords:
Douglas and Phyllis Maston hired Paul Poirier DBA as Servpro to clean a sewage spill in their basement. Servpro workers removed contaminated material, cleaned the basement, and applied disinfectants. Although they warned Phyllis to stay out of the basement while they applied the products, they did not warn her that being in the basement could be dangerous until the disinfectants dried. (my naïve question here – would not any adult know that without being specifically warned?) Phyllis continued cleaning the basement in the days following the application of the disinfectants. Shortly after, she developed ongoing respiratory problems, which her doctors determined was caused by exposure to chemicals that were used in Servpro’s cleaning products.
The Mastons sued Servpro for breach of contract, negligence, and violations of G. L. c. 93A based on breaches of the warranty of merchantability and the warranty of fitness for a particular purpose. Shortly before trial, the Mastons waived their contract and negligence claims and proceeded to a bench trial on the c. 93A claims alone.
The judge ruled that Servpro had to pay the Mastons about $272,000 plus about $231,000 in attorney fees and costs and the Appeals Court added to that another $23,500 in attorney fees and costs.
(My funny side note here: “In evaluating the work done by the prevailing attorneys, the judge noted that “[d]ue in no small part to the very capable defense presented by defendants’ counsel, the plaintiffs’ counsel had to work long and hard to overcome numerous hurdles and to build their case.” This reminded me of the Russian argument that if Ukraine had just given up all of its territory voluntarily there would not have been the need for such extra costs and the war would have ended so it’s Ukraine’s fault for the high costs of the war and for the war itself)
Vermont Mutual Insurance refused to pay the attorney fees. The Lower Court ordered it to pay them but the Supreme Judicial Court on its own initiative transferred the case from the Appeals Court and ruled that the insurance policy provision covering damages caused by bodily injury does not cover the award of attorney’s fees under G. L. c. 93A.
I am going to spare you all the legal pretzel twisting that the SJC had to do in order to find the hair-splitting difference between “costs” and “costs taxed”.
I will just say:
Under 93A the losing party pays the attorney fees so since with this Decision the SJC rules that the Insurance Company is off the hook when it comes to paying attorney fees under 93A, it looks like this means that if a landlord is found liable for 93A they need to pay the attorney fees of the tenant out of pocket as that apparently is not covered by the Insurance any more.
P.S. Strange but I was not able to find a Friend of the Court Argument by MassLandlords that Insurance Companies should be covering attorney fees under 93A. I am sure they must be working hard to defend the landlords’ rights in MA on some other cases.