D. Warren Justice
case concerns an insurance claim made by plaintiff Kherallah
Salleh with respect to fire damage at the location where
Salleh maintained an auto repair business.
the court are four motions: (1) a motion for summary judgment
by defendant Travelers Casualty Insurance Co.; (2) a motion
for summary judgment by defendant Michals Insurance Agency
Inc.; (3) a motion by Salleh to strike an expert witness
designated by Travelers; and (4) a motion in limine by the
Michals Agency to exclude a recorded out of court statement
by Nick Lotfey, an employee of the Michals Agency.
judgment should be granted if there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law. In considering a motion for summary
judgment, the court is required to consider only the portions
of the record referred to and the material facts set forth in
the parties' Rule 56(h) statements. E.g., Johnson v.
McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts
must be considered in the light most favorable to the
non-moving party. Id. Thus, for purposes of summary
judgment, any factual disputes must be resolved against the
movant. Nevertheless, when the facts offered by a party in
opposition to summary judgment would not, if offered at
trial, be sufficient to withstand a motion for judgment as a
matter of law, summary judgment should be granted.
Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d
Summary Judgment Motion Based on Alleged
motion Travelers has assembled a lengthy list of alleged
misrepresentations that it contends void Salleh's
insurance policy. Salleh argues that misrepresentations,
under the policy, have to be "intentional" or
"willful." He acknowledges one misrepresentation
but contends that it was innocent because he was advised to
make the misrepresentation by Nick Lotfey, the insurance
agent from the Michals Agency who sold him the policy. Salleh
contends that under 24-A M.R.S. §§ 2422(1) and (2)
Lotfey was an agent of Travelers and that any information
known to Lotfey (including the information that Omar Martinez
was the actual owner of the two car lifts that Salleh
originally claimed were owned by Salleh) is regarded as
having been known by Travelers.
has also submitted an affidavit disputing all of the other
allegedly willful misrepresentations relied upon by
Travelers. On all of the alleged misrepresentation issues the
court concludes that Salleh has submitted sufficient evidence
to raise disputed issues for trial.
Summary Judgment Motion relating to Coverage for Damage to
addition to seeking reimbursement for alleged losses to his
tools, office furniture and equipment, an allegedly expensive
painting, and car parts (batteries, tires, radios and car
computers), Salleh contends that he is entitled to
reimbursement for damage to the portion of the building which
he leased for his auto repair business. However, the
Declarations to the policy for "property damage" do
not cover damage to the building but only "business
personal property, " business interruption, accounts
receivable, and valuable papers. The policy also provides
that property only qualifies as "covered property"
if a limit on coverage is shown in the Declarations. No such
limit is shown for any buildings.
argues that he is entitled to coverage under a provision
applicable to "newly acquired" property including
"buildings you acquire by purchase or lease at any
premises including those premises shown on the
Declarations." This provision, however, applies to the
future purchase or lease of additional premises. It is
undisputed that Salleh had already leased the property where
the fire occurred and had done so six weeks before the policy
was issued. Travelers SMF ¶ 54.
makes no sense to construe coverage for "buildings you
acquire" to mean coverage for "buildings you have
already leased at the time the policy was issued."
Moreover, the language that the "buildings you
acquire" can be at the premises shown on the
Declarations as well as at other premises demonstrates that
this provision is intended to apply to new premises and not
to the insured's existing premises.
court concludes that even under the principle that
ambiguities are to be construed in favor of the insured,
there is no ambiguity here and coverage is not available for
Salleh's claim of damage to the building. Travelers is
entitled to summary judgment on Salleh's claim for damage
to the building.