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Emery Lee & Sons, Inc. v. Acadia Insurance Group, LLC

Superior Court of Maine, Cumberland

March 9, 2016

EMERY LEE & SONS, INC.
v.
ACADIA INSURANCE GROUP, LLC

ORDER

Joyce A. Wheeler, Active-Retired Justice.

SUMMARY

Pending are cross motions for summary judgment, Emery Lee's motion for summary judgment and Acadia's cross-motion for summary judgment. Plaintiff Emery Lee & Sons, Inc. (Emery Lee) filed a complaint for a breach of contract. Relying on the debris-removal provision in its insurance policy, Emery Lee wants Defendant Acadia Insurance Group, LLC (Acadia) to pay for the removal of the remains of its destroyed building. Emery Lee filed a motion for summary judgment and Acadia filed an opposition and a cross-motion for summary judgment. This Court denies Emery Lee's motion because Emery Lee cannot establish a breach of a material contract term. And this Court grants Acadia's cross-motion because Emery Lee failed to make a prima facie case for a breach of contract.

I. Facts.

Plaintiff Emery Lee is a Maine corporation that had a plant in Millinocket, Maine. (PL's S.M.F. ¶¶ 1-2; Lee Aff. ¶ 3; Def.'s O.S.M.F. ¶¶ 1-2.) On March 16, 2012, fire destroyed the plant. (PL's S.M.F. ¶ 3; Lee Aff. ¶ 4; Def.'s O.S.M.F. ¶ 3.) Defendant Acadia Insurance Group, LLC, (Acadia) insured Emery Lee's plant. (PL's S.M.F. ¶ 4; Lee Aff. ¶5; Def.'s O.S.M.F. ¶ 4, as qualified.) Acadia paid the building limits under the policy, (PL's S.M.F. ¶ 5; Def.'s O.S.M.F. ¶ 5, as qualified), which was $338, 000. (Def.'s O.S.M.F. ¶ 5, as qualified.)

Although both parties agree that the plant was completely destroyed, portions of the destroyed plant remain that Emery Lee wants removed. (PL's S.M.F. ¶¶ 3, 8, Lee Aff. ¶¶ 4, 7, Def.'s O.S.M.F. ¶¶ 4, 8.) Emery Lee wanted to dismantle and remove the remains of the destroyed plant. (PL's S.M.F. ¶ 8, Lee Aff. ¶ 7, Def.'s O.S.M.F. ¶ 8.) Emery Lee received an estimate[1] of $163, 000 from Ideal Recycling, Inc. (Ideal Recycling) to remove the remains. (PL's S.M.F. ¶ 9, Lee Aff. ¶ 8, Def.'s O.S.M.F. ¶ 9, objected, qualified.) The estimate began with the heading, "[C]ost for Demo of Concrete Plant." (Lee Aff. ¶ 8, Exhibit 3.) Ideal Recycling listed the various tasks covered in the estimate, such as "Demo of all Foundations, " "Removal of Demo Debris, " "Take Wall down, " "Cutting up of Steel, " and "Haul Away." (Lee Aff. ¶ 8, Exhibit 3.) Acadia has refused to pay for this removal. (PL's S.M.F. ¶ 6, Lee Affidavit ¶ 6, Def.'s O.S.M.F. ¶ 6.)

"Debris removal" is covered by Section A.4.a of the insurance policy:

(1) Subject to Paragraphs (3) and (4), we will pay your expense to remove debris of Covered Property caused by or resulting from a Covered Cause of Loss that occurs during the policy period. The expenses will only be paid if they are reported to us in writing within 180 days of the date of direct physical loss or damage.
(3) Subject to the exceptions in Paragraph (4), the following provisions apply:
(a) The most we will pay for the total of direct physical loss or damage plus debris removal expense is the Limit of Insurance applicable to the Covered Property that has sustained loss or damage.
(b) Subject to (a) above, the amount we will pay for debris removal expense is limited to 25% of the sum of the deductible plus the amount that we pay for direct physical loss or damage to the Covered Property that has sustained loss or damage.
(4) We will pay up to an additional $250, 000 for debris removal expense, for each location in any one occurrence of physical loss or damage to Covered Property, if one or both of the following circumstances apply:
(a) The total of actual debris removal expense plus the amount we pay for direct physical loss or damage exceeds the Limit of Insurance on the Covered Property that has sustained loss or damage.
(b) The actual debris removal expense exceeds 25% of the sum of the deductible plus the amount that we pay for direct physical loss or damage to the Covered ...

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