National Liability & Fire Ins. Co. v. Jablonowski

          MEMORANDUM OF DECISION ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

          WARREN W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE

         This is an action by National Liability & Fire Insurance Co. and Boat America Corporation for declaratory judgment that there is no coverage for either of the insurance claims submitted by defendant John Jablonowski under his Yacht Policy.

         Plaintiffs have moved for summary judgment. For the following reasons, plaintiffs' motion will be granted.

         BACKGROUND

         Plaintiffs National Liability & Fire Insurance Co. and Boat America Corporation d/b/a Boat Owners Association of the United States issued Yacht Policy No. 3641097-15 to defendant John Jablonowski for his 1962 wooden auxiliary sailboat, PAULA LYNN, with an agreed $90, 000 value covering the boat and boating equipment during the period September 18, 2015, to September 18, 2016.

         On June 20, 2016, defendant reported Claim No. 1604168 under the Yacht Policy for an alleged electrical fire at the PAULA LYNN shore power cord connection, which cut off electricity to an onboard space heater. This allegedly caused immediate consequential property damage in the form of mold or mildew growth in the boat's interior, for which defendant claims he is due $90, 000, with the boat allegedly a total loss.

         On September 23, 2016, plaintiffs declined coverage for defendant's first claim and without waiving any rights agreed to pay a $3, 000 invoice for cleaning mold and mildew, as an investigative cost.

         Three days after that declination (and eight days after the Yacht Policy expired), on September 26, 2016, defendant reported Claim No. 1607652 for alleged vandalism due to an unknown person's sanding of PAULA LYNN's cabin top and V-berth. Defendant claims the vandal's sanding spread mold throughout the boat. Again defendant claims he is due $90, 000 because the boat is a constructive total loss.

         Without waiving any rights, plaintiffs agreed to consider the new, second claim and to reconsider the first claim in light of defendant's continued allegations.

         In accordance with the Yacht Policy at its page 2 ¶ 5, defendant agreed to a pre-litigation examination under oath taken by counsel on October 21, 2016.

         By letter dated December 8, 2016, plaintiffs denied defendant's first and second claims and then filed an Amended Complaint for declaratory judgment on December 13, 2016.

         Regarding his first claim, for the alleged fire, defendant admits that he never saw any smoke but contends that the fire at the electrical cord connection continued and was ongoing all winter until May 2016.

         Defendant did not disclose any expert witnesses regarding the existence of a fire. After looking at the PAULA LYNN shore power cord, the Watertown Fire Chief and the Mystic Fire Marshal, according to defendant, both said, “It was an electrical issue and it caused the burning of the cord, arcing.”

         Plaintiffs timely disclosed Michael K. Higgins Sr. as their expert fire witness in accordance with Fed.R.Civ.P. 26(a)(2). Defendant did not depose Higgins. In his November 30, 2016, report, Higgins concluded that there was no fire. The report supports plaintiffs' December 8, 2016, denial letter:

The boat side connector of the shore power cord has carbonization and melting of the plastic housing which is a direct result of a poor contact and arcing with the male hot lead on the boat connector. No. fire occurred on the connector or male plug. All damage is a direct result of poor maintenance on the insured's part.

         Defendant admitted that he had to repeatedly reconnect the shore power cord in order to restore power ...