Shepperson v. Metropolitan Property and Casualty Insurance Company

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

SUSAN SHEPPERSON, )

)

Plaintiff, ) CIVIL ACTION NO.

) 16-12116-DPW

v. )

)

METROPOLITAN PROPERTY AND )

CASUALTY INSURANCE CO., )

)

Defendant. )

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 co-

insured 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. I find she is an innocent

insured entitled to damages. The amount of damages is not yet

ripe for resolution. 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

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.

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

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.

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

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. When he was in college, he lived

in Newport on campus. 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

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.” The premises address appeared on

his driver’s license. 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

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

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

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.

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, 197-

98 (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. 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”

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.” Boazova, 968 N.E.2d at

390. 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.” Id.

A. 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

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).

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.” 802 N.E.2d

at 595. As Morel observed, the Vaiarella court itself set forth

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

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

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

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

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

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. But in Straker the son had other apartments

he moved among. 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,

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.” 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

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

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

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

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

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

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.

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 co-

insured . . . . 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.”).

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

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.” Id. at

*6. 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

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. 416

N.E.2d at 190 n.9. 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.” Pappas

Enters., Inc., 661 N.E.2d at 83. 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. SJC-

11922 (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.

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

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

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

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. 768

N.E.2d at 542-43. 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. 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

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. 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.

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. Yerardi, 436 F.

Supp. 2d at 244-45. 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

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