Mark Van Hoesen et al.
Lloyd's of London, alias
Washington County Superior Court. (WC 14-180). Associate
Justice Kristin E. Rodgers.
Plaintiffs: James E. Kelleher, Esq.
Defendant: James T. Huggard, Esq., Thomas B. Farrey, III,
Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia,
Francis X. Flaherty, Justice.
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
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.
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. When the constable returned the
summons marked non est inventus, plaintiffs moved to
substitute Leonard's insurer, Lloyd's of
London. The Superior Court granted the motion
to substitute and plaintiffs filed an amended complaint,
removing Leonard and naming Lloyd's as defendant.
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.
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 ...