Lacasse v. Wells Fargo Bank, N.A. et al

Cross MOTION for Summary Judgment

D. Mass.February 17, 2017

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS THOMAS J. LA CASSE Plaintiff(s) vs. Civil Action No. 15-CV-13503-MGM WELLS FARGO BANKS, N.A. AS TRUSTEE FOR SOUNDVIEW HOME LOAN TRUST 2007-0PT4, ASSET- BACKED CERTIFICATES, SERIES 2007 OPT4, OCWEN LOAN SERVICING, LLC HOMEWARD RESIDENTIAL, INC., and AMERICAN SECURITY INSURANCE COMPANY Defendant(s) DEFENDANT, AMERICAN SECURITY INSURANCE COMPANY'S CROSS-MOTION FOR SUMMARY JUDGMENT Now comes the defendant, AMERICAN SECURITY INSURANCE COMPANY (“American Security”), and hereby cross-moves pursuant to Fed. R. Civ. P. 56 that summary judgment be granted in its favor as to Counts II and III of Plaintiffs Fourth Amended Complaint, and for declarations as to Counts I and II of its Counterclaim for Declaratory Relief.1 In a separate filing, American Security opposes Plaintiffs Motion for a Ruling of Law and Whether to Stay the Proceedings in Favor of a Reference on Damages. More specifically, this matter should not be ordered to reference and American Security is entitled to judgment as a matter of law because: l. The claims against American Security relate to a dispute over the value of damages claimed under an insurance policy issued by American Security following a water damage loss allegedly occurring on July 23, 2013. 2. Both M.G.L. c. 175, § 99 and the applicable insurance policy provisions require a 1 American Security's Counterclaim was asserted with its Answer to Plaintiff’s First Amended Complaint. Case 3:15-cv-13503-MGM Document 117 Filed 02/17/17 Page 1 of 3 dispute over the amount of damages be submitted to a reference proceeding and that suits be brought within two years. 3. While the Plaintiff demanded reference in August of 2014, he subsequently failed to comply with the requirements for proceeding to reference and filed suit against American Security on July 22, 2015 (when he amended his Complaint against Wells Fargo, N.A., Ocwen Loan Servicing, LLC and Homeward Residential, Inc. to assert claims against American Security). 4. Proceeding to reference is a condition precedent to an insured such as the Plaintiff filing an action against his insurer. See M.A.S. Realty Corp. v. Travelers Cas. & Sur. Co. of Illinois, 196 F.Supp.2d 41, 44 (D. Mass. 2002). and 5. Plaintiff has waived his right to now proceed to reference. American Security submits that pursuant to Fed. R. Civ. P. 56 there are no genuine issues of material fact presented relative to its cross-motion. The issues involve interpretation of statutory and insurance policy provisions. American Security is entitled to summary judgment as a matter of law. As further grounds, American Security relies on and incorporates hereto its Memorandum in Support of its Opposition to Plaintiff’s Motion for Ruling of Law and Cross-Motion for Summary Judgment, Defendant’s Concise Statement of Material Facts pursuant to Local Rule 56.12, and affidavits of Mary Beth Bergeron and James P. McLarnon, Jr. that are included as part of the Defendant’s Appendix of Supporting Exhibits. WHEREFORE, Defendant, American Security, respectfully requests that this Honorable 2 American Security’s Concise Statement of Material Facts will be converted into a single consolidated statement of facts upon receipt of the Plaintiffs response to this statement and any additional statement of facts. Case 3:15-cv-13503-MGM Document 117 Filed 02/17/17 Page 2 of 3 Court 1) deny Plaintiffs Motion for Ruling of Law, 2) enter Summary Judgment in its favor as to Counts II and III asserted against it in Plaintiffs Fourth Amended Complaint, and 3) enter Summary Judgment in its favor as to Counts I and II of Its Counterclaim for Declaratory Relief and declare: La Casse has waived the right to have the dispute over the value of his claim arising out of an alleged water loss occurring on July 23, 2013, determined in a reference proceeding (Count I); and The applicable two-year limitations period has run (Count II). Respectfully submitted, American Security Insurance Company, By its Attorneys, /s/ Thomas B. Farrey, III. THOMAS B. FARREY, III/BBO#l59880 Burns & Farrey, P.C. 446 Main Street, 22nd Floor Worcester, Massachusetts 01608 Telephone 508-756-6288 Email: Farrey@ BurnsandFarrey.com CERTIFICATE OF SERVICE I, THOMAS B. FARREY, III, hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF). Dated: February 17, 2017 /s/ Thomas B. Farrey, III THOMAS B. FARREY, III (MotionSJ) Case 3:15-cv-13503-MGM Document 117 Filed 02/17/17 Page 3 of 3