DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28 ARE PRIMARILY ADDRESSED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL'S DECISIONAL RATIONALE. MOREOVER, RULE 1:28 DECISIONS ARE NOT CIRCULATED TO THE ENTIRE COURT AND, THEREFORE, REPRESENT ONLY THE VIEWS OF THE PANEL THAT DECIDED THE CASE. A SUMMARY DECISION PURSUANT TO RULE 1:28, ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR ITS PERSUASIVE VALUE BUT, BECAUSE OF THE LIMITATIONS NOTED ABOVE, NOT AS BINDING PRECEDENT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On December 7, 2011, CE Design, Ltd. (CE), filed a complaint in Superior Court seeking a declaration that Indiana Insurance Company (Indiana) has a duty to defend and indemnify Matrix LS, Inc. (Matrix), in an underlying class action.
The parties informed us at oral argument that Indiana had filed a new United States District Court complaint in Illinois against CE, seeking a declaration that Indiana does not have a duty to defend or indemnify Matrix and that the parties had submitted cross-motions for summary judgment. During the pendency of this appeal, the United States District Court motion judge ordered partial summary judgment for CE declaring that Indiana has a duty to defend Matrix in the underlying action. The judge also concluded that "it would be premature to rule" on indemnity when the underlying action is ongoing and Matrix's liability has not been established.
As a result, CE has already received in United States District Court the relief sought here: further proceedings on its claim that Indiana has a duty to defend and indemnify and a declaration that Indiana has a duty to defend. This appeal and the action below are therefore moot. See Ott v. Boston Edison Co., 413 Mass. 680, 680, 685 (1992) (ordering dismissal of action when "[t]he substantive issue in th[e] appeal is no longer in controversy and is moot because the plaintiff appellants have attained by another process the objective that they sought by the commencement of th[e] action"); Moe v. Sex Offender Registry Bd., 444 Mass. 1009, 1009 (2005) .
Accordingly, the judgment is vacated and a new judgment shall enter dismissing the action not on the merits but because it is moot. See Ott, supra at 685.