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Patriot Insurance Co. v. Quality Home Care, LLC

Superior Court of Maine, Cumberland

November 21, 2014

PATRIOT INSURANCE COMPANY, Plaintiff
v.
QUALITY HOME CARE, LLC, Defendant

ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Nancy Mills Justice.

Before the court is plaintiff Patriot Insurance Company's motion for summary judgment on both counts of its complaint, which addresses a claimed loss under plaintiff's insurance policy. Defendant Quality Home Care, Inc. has filed no opposition to the motion. For the following reasons, the motion is granted.

PROCEDURAL HISTORY

In its complaint filed on July 15, 2013, plaintiff seeks in count I a declaratory judgment that the insurance policy issued to defendant does not cover the claimed loss and alleges in count II a fraudulent insurance act claim under 24-A M.R.S. § 2186 (2013).

Defendant filed an answer on September 9, 2013 and an amended answer and a counterclaim on January 28, 2014.[1] Following an unsuccessful mediation, counsel for defendant moved to withdraw on May 19, 2014 because the attorney-client relationship had broken down. The court granted the motion to withdraw on June 10, 2014, but stated that defendant was obligated to retain other counsel or notify the court that defendant will be representing itself.[2] The court has received no communication from defendant.

On September 22, 2014, plaintiff filed a motion for summary judgment. Plaintiff attached the required Rule 7(b)(1) notice. Plaintiff represents that the motion was mailed to three of defendant's business addresses in Kentucky, including an address where plaintiff had reached defendant before trial. Defendant has not filed any opposition to the motion or any other communication with the court. Accordingly, the motion is considered unopposed.

BACKGROUND

The following facts, supported by record citations, are deemed admitted.[3] On February 24, 2013, a fire caused damage to the property at 23 Virginia Place in Limestone, Maine. (Supp. S.M.F. ¶¶ 7, 11.) At issue in this case is whether plaintiff is liable for the damage under an insurance policy plaintiff issued to defendant.

Defendant is a limited liability company organized in Kentucky that was established to perform in-home care to the elderly. (Supp. S.M.F. ¶¶ 5-6.) Defendant owns the damaged building, a thirty-eight unit apartment complex, which was listed on the insurance policy. (Supp. S.M.F. ¶¶ 7, 9.) The insurance policy was in effect at the time of the fire. (Supp. S.M.F. ¶¶ 10-11.) After the fire, defendant submitted claims for coverage for property loss, frozen pipes and water loss, and business income loss. (Supp. S.M.F. ¶ 12-14.)

Plaintiff investigated the claims and denied coverage on June 24, 2013. (Supp. S.M.F. ¶ 18.) Plaintiff claims that defendant made false statements to plaintiff's investigators in violation of the policy and that the building was vacant for more than 60 days leading up to the fire, which voids coverage for acts of vandalism. According to plaintiffs fire investigator, arson was the cause of the fire at the building. (Supp. S.M.F. ¶¶ 16, 19, 22-50.)

As part of the investigation, plaintiff took statements from Craig Perkins, an owner of Quality Home Care who submitted the insurance claims. (Supp. S.M.F. ¶¶ 16, 19.) In his first recorded statement, Mr. Perkins claimed that Quality Home Care leased the building to Frankco Disaster Recovery, LLC ("Frankco"). (Supp. S.M.F. ¶ 22.) Mr. Perkins presented a lease signed by himself for Quality Home Care and Rex Toler for Frankco. (Supp. S.M.F. ¶¶ 23, 24.) Plaintiff subsequently learned that Frankco was dissolved at the time of the fire or shortly thereafter. (Supp. S.M.F. ¶ 26.) Nevertheless, Mr. Perkins claimed a loss of business income in the amount of $18, 500 per month based on the lease agreement with Frankco. (Supp. S.M.F. ¶ 25.) Mr. Perkins also claimed that Frankco responded to a Craigslist post advertising the availability of the premises for lease. (Supp. S.M.F. 28.) In his first statement, Mr. Perkins denied that he had any relationship with Mr. Toler or the owner of Frankco, Frank Fitzgerald. (Supp. S.M.F. ¶¶ 27, 30.)

Plaintiff continued its investigation after taking Mr. Perkins's recorded statement and decided to conduct an examination of Mr. Perkins under oath. At the examination, Mr. Perkins admitted that Mr. Toler had not signed the lease agreement and that Mr. Perkins had signed Mr. Toler's name. (Supp. S.M.F. ¶ 33.) Mr. Perkins further admitted that he knew Mr. Toler and Mr. Fitzgerald, that Mr. Perkins contributed $15, 000 to the start-up Frankco, and that he was a member of Frankco. (Supp. S.M.F. ¶ 32.) He further explained that Frankco had not responded to a Craigslist ad about leasing the building but that Mr. Perkins had a conversation about the lease with Mr. Fitzgerald in Long Island, New York. (Supp. S.M.F. ¶ 29.)

Leading up to the fire, Mr. Perkins took steps to evict tenants who refused to leave the building, including shutting off utilities to the building sometime in October or November 2012. (Supp. S.M.F ¶¶ 42-43.) The electricity was not switched on again prior to the fire. (Supp. S.M.F. ¶ 42.) By January, only a few tenants remained in the building, ...


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