Attorney William Rose represented the Endlar Insurance Agency of Dedham in the case of Witkowski v. Richard W. Endlar Insurance Agency, Inc., Essex Superior Court C. A. No. 2007-00958-A, (“Endlar”). He represented the agency throughout the original summary judgment proceedings in the Superior Court, the subsequent appellate proceedings as well as the jury trial and 93A proceedings.
He recently provided an update to Agency Checklists, an industry website which reports on Massachusetts insurance news and legal developments. The article was published on May 3, 2015 and can be found online here. The following is an excerpt.
Attorney Rose’s summary of the trial and decision of the Superior Court on certificates of insurance and liability under G.L. c. 93A
In Witkowski v. Richard W. Endlar Insurance Agency, Inc., Essex Superior Court C. A. No. 2007-00958-A (“Endlar”), Judge Feeley rendered a detailed and well-reasoned 25 page opinion concerning the issuance and interpretation of certificates of insurance.
In Endlar, the Plaintiff brought claims of common law misrepresentation and under Mass. Gen. L. c. 93A, based on that alleged misrepresentation. As is mandated by Massachusetts law, Judge Feeley reserved the c. 93A claim for his own determination. The jury heard, but could not decide, the misrepresentation claim, as it deliberated for several days without being able to reach a verdict. However, this did not affect Judge Feeley’s ability or authority to decide the c. 93A claim.
Issuing certificates may be outside c. 93A
In his decision, Judge Feeley questioned whether Endlar was conducting “trade or commerce” as required for liability to attach under c. 93A when it issued the certificate of insurance. In this regard, Endlar was the broker for a condominium trust, and Witkowski had requested a certificate of insurance to establish that master policies had been issued to the trust, including flood insurance, in connection with his purchase of a unit at this condominium building. In fact, Witkowski had his own broker who procured his unit owner’s policy. Thus, Witkowski was not Endlar’s customer, and Endlar was not paid to issue the certificate. Rather, it issued the certificate as a service to the trust. While expressing his doubts as to whether Endlar was thus engaged in “trade or commerce,” Judge Feeley concluded that he need not decide the case on these grounds. Instead, he found that Endlar did not make any false statements of fact in the certificate and/or did not make any statements knowing them to be false or in reckless disregard of the truth (the first two elements of a viable misrepresentation claim). Thus, he found in favor of Endlar.
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