PAROULIDIS v. COMM. INS., No. 95-01874 (Ma.Super. Mar. 28, 1997)

No. 95-01874Commonwealth of Massachusetts Superior Court CIVIL ACTION WORCESTER, ss.
March 28, 1997

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TOOMEY, JUSTICE.

The plaintiff, Nickolaus Paroulidis (“Paroulidis”), brought this action against the defendant, Commerce Insurance Company (“Commerce”), alleging failure to pay for the damage to his insured vehicle after it was stolen.[1] Commerce now moves for summary judgment on the ground that material misrepresentations made by Paroulidis on his automobile insurance application justify Commerce’s failure to pay Paroulidis’ claim resulting from the theft of his vehicle. After hearing and the Court’s consideration of the written submissions of the parties, Commerce’s motion for summary judgment is DENIED.

BACKGROUND
It is undisputed that, on or about February 8, 1995, Paroulidis, who neither reads nor writes English, answered some questions posed in Greek by his insurance agent, and the agent completed an automobile insurance application on Paroulidis’ behalf. Paroulidis then signed the application. It is further undisputed that a policy was issued and a premium paid by Paroulidis based upon the information contained in his application.

On April 3, 1995, Paroulidis’ insured vehicle was stolen. The next day, the Paroulidis vehicle was recovered by the Worcester Police, and declared a total loss. Commerce, relying on a notice appearing on the Paroulidis policy above the signature line,[2] denied coverage to Paroulidis for the theft and loss of his vehicle.

DISCUSSION
This court should grant summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Nashua Corp. v. First State Ins. Co., 420 Mass. 196, 202 (1995); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass. R. Civ. P. 56. The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party’s case or by showing that the nonmoving party is unlikely to submit proof of that element at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The nonmoving party cannot defeat the motion for summary judgment by resting on its “pleadings and mere assertions of disputed facts . . .” LaLonde v. Eissner, 405 Mass. 207, 209
(1989) (citing Community Nat’l Bank v. Dawes, 369 Mass. at 554). The nonmoving party’s failure to prove an essential element of its case “renders all other facts immaterial” and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Vague and general allegations of expected proof are not enough to defeat a motion for summary judgment. Cherella v. Phoenix Technologies, Ltd., 32 Mass. App. Ct. 919, 920 (1992).

Commerce asserts that it is entitled to summary judgment because Paroulidis intentionally gave false, deceptive, misleading or incomplete information to Commerce on his application for insurance concerning each listed operator’s percentage of use of the vehicle in question.[3] Specifically, Commerce contends that, insofar as (1) both Paroulidis and his son, Theofanis, testified in their depositions that Maria Paroulidis was unable to operate a vehicle with a standard transmission and (2) Maria Paroulidis was listed on the policy as a 60% user of the insured vehicle, there can be no dispute that Paroulidis intentionally misrepresented the percentage of time that each listed operator would be using the insured vehicle. Therefore, Commerce concludes, there is no genuine issue of material fact requiring determination at trial.

Paroulidis responds, however, that he can neither read nor write in English, did not fill out the insurance application on his own, and had no intention of deceiving the insurance company. Citing Quincy Mutual Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86
(1984), Paroulidis further argues that, where state of mind or motive is in issue, summary judgment should not be granted.

In Massachusetts, pursuant to M.G.L.c. 175, § 186, “[a] misrepresentation in an application for insurance will enable the insurer to avoid the policy if the misrepresentation was made with actual intent to deceive, or it is material.” Hanover Ins. Co. v. Leeds, 42 Mass. App. Ct. 54, 57 (1997) (emphasis added).[4]
Such an avoidance cannot be readily obtained on summary judgment, however, because “[t]he issue of a party’s intention or knowledge, raised by the pleadings, often cannot be resolved adequately from a consideration of the limited materials which accompany a summary judgment motion.” Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86 (1984) (citations omitted). “When intent is at the core of a controversy, summary judgment seldom lies.” Madden v. Estin, 28 Mass. App. Ct. 392, 395 (1990). Here, although both Paroulidis and his son have admitted that Maria Paroulidis, who was listed as a 60% operator of the vehicle, is unable to drive a standard transmission vehicle (and therefore did not drive the vehicle in question), and that Theofanis Paroulidis drove the vehicle in question most days, I find that Paroulidis’ inability to read and write English raises a litigable question as to whether or not Paroulidis intended to deceive Commerce when his insurance agent filled out an application for coverage on his behalf.

Commerce, assuming arguendo that Paroulidis’ misrepresentations were not intentional, argues that it is nevertheless entitled to summary judgment because Paroulidis’ misrepresentations were material and increased its risk of loss. More particularly, Commerce maintains that, had it known that the plaintiff’s son, Theofanis Paroulidis, would be the principal operator of the car, the Paroulidis’ premium would have been $ 251.00 higher for the coverage period in question, an accretion that evidences an increased risk of loss to Commerce.

“Whether a misstatement in an application for insurance increased the risk of loss and was, therefore, `material’ is ordinarily a question of fact on which the insurer bears the burden of proof.” Hanover Ins. Co. v. Leeds, 42 Mass. App. Ct. 54, 57 (1997). Here, in support of its motion for summary judgment, Commerce did submit an affidavit stating that, had Theofanis Paroulidis been listed as the primary operator of the 1987 Nissan 300ZX, the Paroulidis premium would have increased by $ 251.00 for the coverage period in question. Based on the record before me, however, I find no dispositive indication that Paroulidis’ misrepresentations as to each listed operator’s percentage of use of the insured vehicle did in fact increase Commerce’s risk of loss concerning theft of the insured vehicle. I find, therefore, that whether Commerce has met its burden of proving that Paroulidis’ misrepresentation was “material” with respect to theft of the insured vehicle constitutes a “genuine issue of material fact” resolvable only by trial.

ORDER
For the foregoing reasons, Commerce’s motion for summary judgment is DENIED.

______________________________ Daniel F. Toomey Justice of the Superior Court

DATED: March 28, 1997