The plaintiff (Bennett) seeks to recover under
The insured premises were on a golf course. At the time of the vandalism, there were in force various policies of fire insurance, all of which included extended coverage and vandalism indorsements ("direct loss caused by [v]andalism and [m]alicious [m]ischief, being only wilful and malicious damage to or destruction of the described property and including damage to the building[s] covered hereunder caused by burglars"). Each policy also contained "[a]lterations and [r]epairs [c]lauses."
One other provision is of significance, that defining "[b]uilding [c]overage" in what is entitled the "[g]eneral [f]orm," which reads: "Building Coverage: When this policy covers buildings, it shall cover the basic structure and additions, including foundations ... and ... shall include building service equipment ...; property of the following kinds belonging to the Insured as building landlord [then are listed various types of building parts or equipment, such as refrigerating equipment, window shades, etc.] ... and all property fastened to and made a part of the building."
Originally there was a small building on the site of the clubhouse. In 1955 Bennett as general contractor reconstructed this building into a much larger country club with clubhouse, terraces, and a swimming pool (40 by 100 feet) set in the middle of a concrete terrace. In the rear of the large building was a concrete terrace extending thirty feet from the building for almost the whole width of the building, where the members would sit and have refreshments. At the outer edge of this, twelve to fifteen steps led down a slight incline to the second concrete terrace containing the swimming pool. The large building and the terraces were used together as a unit by the members, and, from a side view they appeared to be one unit set off from the golf course.
The building reconstruction started in late 1955 and was finished before the summer of 1956. Bennett took a mortgage from the club for money owed to it. On November 8, 1957, Bennett became mortgagee in possession.
The earlier policies were issued as of November 8, 1957, "so far as listing ... Bennett ... as ... owner." In addition to the three policies, already mentioned, issued in 1954, 1955, and early 1956, four more were issued in October, 1956, two in October, 1957, and one in February, 1958.
On the evening of October 15, 1958, when all the policies were in effect, boys "broke into the Pro shop ... [and] stole some" articles. They then went to the pool and damaged it to the extent of $29,000, and threw articles into the pool. Within two days notice of loss was given. No settlement has been made by the insurance companies of Bennett's claims.
1. In passing upon the motion for a directed verdict upon an opening, the facts stated by counsel must be considered as true. The motion must be denied "if the statements ... together with all rational inferences of which those facts are susceptible, can, upon any reasonable view ... be deemed sufficient to support the ... cause of action."
2. The vandalism coverage in these policies is that listed in the fire policies and extended coverage provisions, which do not purport to describe the swimming pool as property covered. Bennett, however, seeks to recover on the theory that the "additions" clauses (footnote 1, supra) and the conversations between Bennett's president and representatives of Boylston (the insurance agency) sufficed to bring all the new construction, including the swimming pool, within the policies. The earlier policies (probably those of 1954, 1955, and May, 1956) were issued before the reconstruction of the clubhouse was completed. Bennett contends that, as to these policies, the swimming pool was an "addition," and that the later policies should be interpreted in the same way. Bennett also contends (largely on the basis of Upper Columbia River Towing Co. v. Glens Falls Ins. Co. 179 F.Supp. 705, 707 [D. Ore.]) that the insurance companies, through the knowledge of their general agents, knew that Bennett wanted vandalism coverage on the swimming pool. This desire, Bennett contends, was verified by the approximately $27,000 valuation placed upon the pool and pool area by Bennett's president.
The policies "must be reasonably construed by giving to ... [their] words ... their usual and ordinary significance ... but if the terms ... are ambiguous then every doubt is to be resolved against the insurer[s]." Woogmaster v. Liverpool & London & Globe Ins. Co. Ltd. 312 Mass. 479, 481. See Schroeder v. Federal Ins. Co. 343 Mass. 472, 475. See also MacArthur v. Massachusetts Hosp. Serv. Inc. 343 Mass. 670, 672. "Where the language permits two rational interpretations, that more favorable to ... the insured is to be taken. The insurer chose the words to express the contract of indemnity and whichever of two warranted interpretations ... best effectuates the
These policies insure, so far as the clubhouse is concerned, a "Frame bldg. (Country Club)." The additions clauses (footnote 1, supra) permit "additions, alterations and repairs" to the buildings or structures described and the construction of "new buildings on the premises." The policies "in so far as ... [they] cover buildings or structures" will "also cover such additions ... and new buildings ... when not otherwise covered by insurance." If the swimming pool is either a new building or an addition to the clubhouse building, the language of the policies covers it. If the pool is not a new building or an addition, the policies do not cover it.
The pool cannot be regarded as a new building. Although it is below ground, that in itself is not fatal to the contention that it is a building. See Jenney v. Hynes, 285 Mass. 332, 335. It certainly is not a structure designed for human occupancy or use except for a limited and specialized purpose, it is not covered with a roof, and it does not come within the ordinary concept of a building. See Truesdell v. Gay, 13 Gray, 311, 312.
The term "addition"
Bennett places great reliance on several Federal decisions. See Pearl Assur. Co. Ltd. v. School Dist. No. 1, 212 F.2d 778, 780-782 (10th Cir.), where a large separate gymnasium connected by a steam line, water line, sewer, electric power line, and wooden passageway, was held to be within the "additions" clause of a policy, as applied to the main school building first constructed and first insured; Fidelity-Phenix Fire Ins. Co. v. Farm Air Serv. Inc. 255 F.2d 658, 662-663 (5th Cir.), where extrinsic evidence was admitted
Although an open, uncovered swimming pool may be a "structure" (cf. Manchester v. Leahy, 336 Mass. 158, 160), it does not seem to us to come within the usual meaning of the term "addition," which in ordinary usage refers to buildings or parts of buildings. We perceive no such obscurity in the term "addition" as to warrant extrinsic evidence of negotiations as an aid to interpretation of a standard provision of the complete, integrated expression of the parties' agreement in the policies. See Stoops v. Smith, 100 Mass. 63, 65-67; Freeman v. Sieve, 323 Mass. 652, 654-655; Dekofski v. Leite, 336 Mass. 127, 128-129; Siegel v. Shaw, 337 Mass. 170, 172; Wigmore, Evidence (3d ed.) §§ 2425, 2452; McCormick, Evidence, §§ 219, 220. See also Whitbeck v. Aldrich, 341 Mass. 326, 329. Compare Cotty v. Meister, 339 Mass. 202, 204-205; Caputo v. Continental Constr. Corp. 340 Mass. 15, 18-19. This is not a suit to reform the contracts contained in the policies (cf. DeVincent Ford Sales, Inc. v. First Mass. Corp. 336 Mass. 448), or an action for failure to place requested insurance (cf. Rayden Engr. Corp. v. Church, 337 Mass. 652). It is an action at law upon the insurance policies as they were issued. Whatever might be the situation in other types of litigation about these policies, in this action, extrinsic evidence of the negotiations between Bennett and Boylston would not have been admissible. We hold that the statements in the opening in this case with respect to such negotiations were irrelevant, and do not aid Bennett.