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Van Hoesen v. Lloyd's of London

Supreme Court of Rhode Island

March 24, 2016

Mark Van Hoesen et al.
v.
Lloyd's of London, alias

          Washington County Superior Court. (WC 14-180). Associate Justice Kristin E. Rodgers.

         For Plaintiffs: James E. Kelleher, Esq.

         For Defendant: James T. Huggard, Esq., Thomas B. Farrey, III, Esq.

         Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

Page 179

          Francis X. Flaherty, Justice.

          This case came before the Supreme Court on January 21, 2016, pursuant to an order directing the parties to appear and show cause why the issues raised by this appeal should not summarily be decided. The plaintiffs, Mark and Pamela Van Hoesen, appeal from the grant of summary judgment in favor of the defendant, Certain Underwriters at Lloyd's of London, after Mr. Van Hoesen was injured in a fall after a deck railing gave way and he plummeted to the ground below.[1]

Page 180

          On appeal, plaintiffs argue that the hearing justice erred when she (1) failed to find that, as a matter of public policy, the terms of the contract insured the work of the building contractor who built the deck; and (2) failed to determine whether the terms of the insurance contract violated the statutory minimum for coverage requirements. Although prevailing below, Lloyd's filed a cross-appeal in which it argues that the hearing justice erred when she denied its motion for summary judgment on the basis that plaintiffs improperly substituted Lloyd's for the original defendant, Brian Leonard. After considering counsels' oral and written arguments, we are of the opinion that cause has not been shown and that this case can be decided without further briefing or argument. For the reasons given below, we affirm the judgment of the Superior Court.

         Facts and Travel

         The plaintiff, Mark Van Hoesen, was seriously injured when he fell from a deck on July 23, 2012. Two years later, Mr. Van Hoesen, along with his wife, Pamela, filed a complaint in Washington County Superior Court, alleging that a contractor, Brian Leonard, negligently constructed the deck.[2] When the constable returned the summons marked non est inventus, plaintiffs moved to substitute Leonard's insurer, Lloyd's of London.[3] The Superior Court granted the motion to substitute and plaintiffs filed an amended complaint, removing Leonard and naming Lloyd's as defendant.

         Lloyd's filed an answer, admitting that it had issued the insurance policy in question and that the policy provided coverage to Leonard from March 8, 2007 until the policy was canceled on August 29, 2007. However, the carrier denied that the policy afforded coverage for plaintiffs' injuries because, even had it not been canceled, the policy, by its unambiguous terms, had expired long before the injuries alleged in plaintiffs' complaint occurred. Soon afterwards, defendant filed a motion for summary judgment, arguing that it did not insure Leonard " for Plaintiff's alleged accident and injuries, because [the policy] applies to bodily injury only if the bodily injury occurs during the policy period, and there is no issue of material fact that Mark Van Hoesen's alleged bodily injury did not occur during the policy period." Specifically, defendant argued that the insurance policy it issued to Leonard was effective from March 8, 2007, to March 8, 2008, but that it had nonetheless canceled the policy on August 29, 2007, because the premiums had not been paid.

         Lloyd's further argued that it was not properly named as a defendant to the lawsuit because plaintiffs had not made reasonable efforts to locate the original defendant, Leonard. Although G.L. 1956 § 27-7-2 allows an injured party to proceed directly against an insurer when the constable returns process non est inventus, defendant maintained that substitution was not proper in this case because plaintiffs failed to make ...


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