United States Court of Appeals
For the First Circuit
No. 01-1074
GRACE LANGILL,
Plaintiff, Appellant,
v.
VERMONT MUTUAL INSURANCE COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Chief Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Dana A. Curhan, with whom William T. Kennedy was on brief,
for appellant.
John C. Skinner, with whom William O. Monahan was on brief,
for appellee.
October 18, 2001
COFFIN, Senior Circuit Judge. In this Massachusetts
diversity case plaintiff-appellant, Grace Langill, the insured
owner of a residential property, challenges the invocation by
defendant-appellee insurance company, Vermont Mutual Insurance
Co., of a statutorily required "vacancy" exclusion in
plaintiff's policy, to deny coverage for fire damage to the
property. Appellant appeals from a partial summary judgment
granted to defendant prior to trial. We affirm.
Factual Background
The insured premises are a rental dwelling at 158 Mansfield
Avenue (158) in Norton, Massachusetts, some thirty-five to forty
feet away from appellant's own residence at 156 Mansfield
Avenue. In February 1999, two tenants who had lived at 158 for
twelve years moved out, leaving the property in a condition
showing considerable wear and tear. Soon after their departure,
appellant's husband undertook to refurbish the house by
cleaning, removing debris, filling nail holes, painting walls,
repairing several windows, and installing Venetian blinds.
During this period, doors were kept locked, utilities were
maintained, and heating oil was supplied. In the premises were
Mr. Langill's tools, a step ladder, two chairs, a mattress,
frame and box spring, a radio and an ash tray.
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It was Mr. Langill's practice to spend one to two hours a
day working at 158 starting at 11:00 a.m. or noon. A longer
time would place undue strain on his arm. He would sometimes
visit the premises at night to smoke or meet with friends; he
had coffee there with a friend six or seven times. On one
night, after an argument with appellant, he had stayed all
night.
On May 4, 1999, Mr. Langill was at 158 from 10:30 a.m. until
approximately noon. He spent the rest of the day at his house,
save a visit to a store to buy a newspaper. At 2:00 a.m. on May
5, he was awakened by appellant and saw "a big orange ball" of
fire at 158. By this time the fire was well advanced on one
wall. The Norton Fire Investigator concluded that the fire was
an arson.
Appellant's "Dwelling Fire Policy" included, as required by
Massachusetts General Laws ch. 175, § 99, the following
exclusionary clause:
27. Vacancy. Unless otherwise provided in writing, we
will not be liable for loss caused by fire or
lightning occurring while a described building is
vacant, whether intended for occupancy by owner or
tenant, beyond a period of sixty consecutive days for
residential purposes of three units or less, and
thirty consecutive days for all other residential
purposes.
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Discussion
The question presented to us and to the district court
is whether under Massachusetts law, the undisputed facts depict
a dwelling that had been, at the time of the fire, "vacant" for
more than sixty consecutive days. This is a matter of law and
our review is de novo. We also are bound by the Massachusetts
rule that "[b]ecause the language of the standard policy is
prescribed by statute . . . , the rule of construction resolving
ambiguities in a policy against the insurer is inapplicable. .
. . Instead, we must ascertain the fair meaning of the language
used, as applied to the subject matter." Bilodeau v. Lumbermens
Mut. Cas. Co., 392 Mass. 537, 541, 467 N.E.2d 137, 140 (1984)
(internal citations and quotations omitted).
Two Massachusetts cases have been called to our attention.
The earlier is Will Realty Corp. v. Transportation Ins. Co., 22
Mass. App. Ct. 918, 492 N.E.2d 372 (1986). After a tenant was
evicted and left a rundown house, the windows were boarded and
the only activity occurred on two days when workmen removed from
the house doors, windows and sinks. A fire destroyed the
building several months later. In reversing a ruling that the
property had not been "vacant," the court said, "the policy
provision reflects the commonplace observation that the risk of
casualty is higher when premises remain unattended. . . .
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[P]remises may be vacant despite sporadic entry." 22 Mass. App.
Ct. at 919, 492 N.E.2d at 373.
A more recent case is helpful, not so much in its precise
holding, as in its discussion of policy underlying the "vacancy"
exclusion. See Aguiar v. Generali Assicurazioni Ins. Co., 47
Mass. App. Ct. 687, 715 N.E.2d 1046 (1999). A restaurant, which
had closed for the season on Labor Day, was destroyed by fire
approximately two months later.1 Before the fire, the restaurant
had been unoccupied and utilities had been shut off. In
affirming the trial court's ruling that the property had been
vacant for the required period, the appeals court "illuminated
why an insurer would be concerned about an unoccupied building"
by explaining that arsonists had attempted to destroy the
building several times in the months before they ultimately
succeeded. 47 Mass. App. Ct. at 689, 715 N.E.2d at 1047.
Moreover, in discussing the insured's argument that he
reasonably expected to be covered under the insurance policy,
the court commented:
[w]hen reasonable expectations analysis comes into
play, it is more likely to do so when the task is to
interpret an ambiguous provision rather than an
unambiguous one whose meaning, as in this case, no one
1
At the time, Mass. Gen. Laws ch. 175, § 99 provided for a
vacancy period of only thirty days before the vacancy exclusion
could be invoked.
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disputes. . . . They could not reasonably have
expected that leaving the building vacant did not
alter the underwriting condition.
47 Mass. App. Ct. at 691, 715 N.E.2d at 1048.
Neither case neatly covers the facts in the case at bar.
In both cases no activity was going on in the premises. In
Aguiar, at least, the premises were not devoid of contents. It
is clear, however, that the court was not equating "vacant" with
"abandonment," as do some jurisdictions. See, e.g., Jerry v.
Kentucky Cent. Ins. Co., 836 S.W.2d 812, 815 (Tex. App. 1992)
("entire abandonment"). It is also clear that having the
building "attended" and "occupied" is the central theme.
The question remains whether this requirement can be
satisfied by regular visits and activities, although of
relatively brief nature, by someone other than a resident of the
building. We are helped by reflecting on the reasons underlying
vacancy exclusions. In considering the vacancy exclusion of a
policy insuring a warehouse, the Fourth Circuit explained:
When a building is not in use, it is more likely that
potential fire hazards will remain undiscovered or
unremedied. Chances are also greater that a fire in
a vacant building will burn for a longer period and
cause greater damage before being detected.
Catalina Enter. v. Hartford Fire Ins. Co., 67 F.3d 63, 66 (4th
Cir. 1993). Surely, these considerations are even more
applicable to one insuring a dwelling.
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When we review the undisputed facts of this case, in light
of these policy concerns, we can readily see their lack of fit.
That is, the approximation to an inhabited abode is not
measurably advanced by the motley and sparse inventory of
chairs, mattress, and step ladder. Nor does the midday hour or
so of work activity convey the appearance of residential living.
And random evening visits hardly provide the appearance of
somebody being at home or effective anti-vandal protection. The
fact is that none of the activities of Mr. Langill or others
changed the fact that at the critical and likely times for
vandalism and arson, there was no one in the house to
discourage, see, or hear marauders, or to hear the activation of
smoke detectors.
A recent New York case seems both apposite and persuasive.
In Lamoureux v. New York Cent. Mut. Fire Ins. Co., 244 A.D.2d
645, 663 N.Y.S.2d 914 (N.Y. App. Div. 1997), the insured
building was a one-family residence located adjacent to and
behind plaintiff’s residence. The premises were destroyed by
fire three months after the plaintiff's tenant had moved out.
The policy excluded coverage for loss if the building were
vacant over 60 consecutive days. Plaintiff’s principal
challenge to a finding of vacancy was that he was personally
renovating the house and was inside the building every day for
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a couple of hours. The court reversed the trial court's denial
of the insurer's motion for summary judgment, “[g]iving the word
vacant its plain and ordinary meaning. . . .” 244 A.D.2d at
646, 663 N.Y.S.2d at 915. It also ruled that because "plaintiff
himself was never an inhabitant of the premises, the fact that
he frequented the premises for the purpose of renovation is not
germane to the issue of vacancy.” Id.
We think the Massachusetts courts would similarly rule on
the record before us. When we consider the nature of the hazard
sought to be guarded against, the sustained presence of a
resident, particularly in the hours of darkness, appears
logically as the critical factor where the premises are a
dwelling. Of course, this also assumes the presence of
furnishings and amenities “minimally necessary for human
habitation.” American Mut. Fire Ins. Co. v. Durrence, 872 F.2d
378, 379 (11th Cir. 1989).
We recognize, as this case illustrates, that there is a wide
continuum between residency and absolute absence of human
presence from the premises. And we do not intend to foreclose
the possibility of a set of facts not involving a resident but
so paralleling the conditions of residency as to avoid
application of the exclusion clause. But we think that in
general the multi-factor approach urged by appellant is
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inconsistent with Massachusetts law. What seems preeminent in
this insurance context, for both insurer and insured, is
predictability. To the extent that a multi-factor approach is
suggested, such as including the presence or absence of tenants,
the habitability or absence thereof, the number, nature,
duration, and regularity of activities and visits by non-
residents, and the proximity of the insured site to the
residence, any predictability is fatally compromised.
Appellant has vigorously invoked dictionary definitions and
case law to serve his purpose. As might be suspected, where a
host of things can be spoken of as “vacant,” from rooms and
houses to stores, positions, and expressions, definitions are
legion. Appellant has relied on those that stress a space being
“devoid of contents.” Webster’s New World Dictionary, 1968 ed.,
p. 1606. This is a perfectly good definition but it has been
impliedly rejected by Aquiar. Moreover, reference to absence of
contents would be more relevant if one were considering whether
a warehouse were vacant. The absence of that for which the
premises were intended to be used would seem to be the proper
object of inquiry. Appellee’s choice of another of Webster’s
definitions seems more of a fit: “untenanted; not in use, as a
room or a house.” Id. We note as well that the language of the
provision, "whether intended for occupancy by owner or tenant,"
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directs us to give no special consideration to purpose of the
building as one to rented rather than one to be used by
appellant.
Appellant’s reliance on cases illustrates the hazard of
focusing on text to the exclusion of context. For example,
cases are cited for the proposition that efforts to rehabilitate
property preclude a finding of vacancy. See Knight v. United
States Fid. & Guar. Co., 123 Ga. App. 833, 182 S.E.2d 693
(1971); Limbaugh v. Columbia Ins. Co. of N.Y., 368 S.W.2d 921
(Mo. Ct. App. 1963). Knight involved installing new equipment,
painting, and making ready a service station and restaurant for
reopening and Limbaugh similar activities to ready a recreation
hall and package liquor store for opening. In both cases there
were policy exclusions if the premises were “unoccupied” for
sixty days. Knight relied on the reasoning of Limbaugh, in
which the court said:
The word “occupancy” itself, as used in insurance
policies, refers to the presence of persons within the
building. This is particularly true as it relates to
dwelling houses. They are expected to be places of
human habitation where people live and dine and sleep.
This cannot be said of a recreation hall and package
liquor store, for the nature of the occupancy does not
warrant the conclusion.
Limbaugh, 368 S.W.2d at 924. The court accordingly held that
cleaning and repainting the interior of the liquor store “would
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be an activity consistent with its occupation as such.” Id. at
925.
Not only does the meaning of “vacancy” depend on the type
of premises involved, but also the type of insurance policy.
Appellant seeks comfort from Ellmex Constr. Co., Inc. v.
Republic Ins. Co., 202 N.J. Super. 195, 494 A.2d 339 (N.J.
Super. Ct. App. Div. 1985), which held that the presence in a
model home of realtors for four days every week constituted
sufficient presence to defeat a thirty day vacancy exclusion
clause. But the court noted that the policy involved was a
“builder’s risk” policy, which should not be interpreted as are
policies insuring ordinary homeowners. 202 N.J. Super. at 204,
494 A.2d at 344. The latter policies, observed the court, “may,
and usually do, require the insured dwelling to be occupied as
a place of abode.” 202 N.J. Super. at 203-04, 494 A.2d at 343.
It consequently felt free to depart from this standard and,
resolving ambiguity against the insurer, held that defendant had
not required that the premises be “occupied” twenty-four hours
per day.
Finally, it is important to distinguish cases according wide
elasticity to the word “occupancy,” after finding the word
ambiguous and construing the term in favor of the insured. See
Smith v. Lumbermen’s Mut. Ins. Co., 101 Mich. App. 78, 300
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N.W.2d 457 (1981); Drummond v. Hartford Fire Ins. Co., 343
S.W.2d 84 (Mo. Ct. App. 1960). In Smith, the court held that
where the insurer knew that a dwelling was under a contract of
sale, a temporary vacancy pending arrival of the new resident-
owner was “not within the vacancy clause, absent a clear
expression of intent in the insurance policy.” 101 Mich. App.
at 86, 300 N.W.2d at 460. Likewise, in Drummond the court,
relying on early precedent, held that the presence of a
caretaker one day and night each week during the specified
vacancy period constituted “possessio pedis” and was sufficient.
343 S.W.2d at 87. Suffice it to say that neither case would be
considered relevant in interpreting the mandatory vacancy
provision under Massachusetts law.
Affirmed.
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