Preferred Mutual Insurance Company v. Daniel T. Meggison and Debra A. Meggison

United States Court of Appeals
For the First Circuit
No. 00-1553
PREFERRED MUTUAL INSURANCE COMPANY,
Plaintiff, Appellee,
v.
DANIEL T. MEGGISON AND DEBRA A. MEGGISON,
Defendants, Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Lynch, and Lipez,
Circuit Judges.
Harold I. Resnic on brief for appellant.
Patrick Markey and Robinson, Donovan, Madden & Barry, P.C.
on brief for appellee.

-- 1 of 7 --

-2-
April 11, 2001

-- 2 of 7 --

-3-
PER CURIAM. On March 20, 1996, Daniel and Deborah
Meggison notified their insurer, Preferred Mutual Insurance
Company, that their home had suffered two types of damage:
water damage and damage from a partial collapse under the
weight of snow. Preferred paid the water damage claim but
denied the remaining claim. The denial was based in part on
an exclusion for errors, omissions, or defects. A re-
inspection of the home, at the Meggisons' request, did not
change Preferred's position.
Preferred then sought a declaratory judgment that
its denial was appropriate. The Meggisons counterclaimed for
breach of contract and violation of M.G.L. ch. 93A and ch.
176D. A jury returned a verdict for the insurance company; in
two special interrogatories, it found that the snow load was
the proximate cause of the damage but also that the damage
resulted "in some significant way, from an act, error, or
omission relating to the design, specification, construction,
workmanship or installation of the property, or the
maintenance of the property, or a defect in the materials used
in the construction of the property." The court had
instructed the jury that losses in which such excluded events

-- 3 of 7 --

1 The concurrent causation preamble and exclusion in the
policy read:
We do not pay for loss if one or more of the following
exclusions apply to the loss, regardless of other
causes or events that contribute to or aggravate the
loss, whether such causes or events act to produce the
loss before, at the same time as, or after the
excluded causes or events. . . .
12. Errors, Omissions and Defects - We do not pay for
loss which results from one or more of the
following:
a. an act, error, or omission (negligent or not)
relating to:
. . .
(2) the design, specification,
construction, workmanship or installation of
property;
. . .
b. a defect, a weakness, the inadequacy, a
fault or unsoundness in materials used in
construction or repair whether on or off the
insured premises.
-4-
played a "significant" role were not covered by the policy.1
Accordingly, the district court ruled for the insurer. The
Meggisons sought a new trial, or to alter or amend the
judgment; the district court denied the motions.
This appeal is from the denial of those motions. We
review for abuse of discretion the denial of a motion for a
new trial. Sheils Title Co. v. Commonwealth Land Title Ins.

-- 4 of 7 --

-5-
Co., 184 F.3d 10, 19 (1st Cir. 1999). The Meggisons argue
that there was insufficient evidence to support the jury's
answer to the second special interrogatory. Specifically,
they claim that Preferred proffered evidence only that the
porch of their house was inadequately supported, but not that
this defect caused the damage for which they claimed. That is
simply not so. Preferred's expert testified that the house
depended on a cantilever system of support, which in turn
depended on the front porch being adequately supported; he
concluded that had the front porch been adequately supported,
the Meggisons' home would not have partially collapsed under
the weight of the winter's snowfall. This conclusion was
further supported by other evidence and by the jury's own view
of the home during a visit to the site. The district court
thus did not abuse its discretion in denying the new trial
motion.
The Meggisons next claim a series of errors in the
court's jury instructions. The gist of their argument is that
the policy must be construed as a matter of law to cover the
loss even if it was caused by an error, omission or defect; in
particular, they argue that the "policy covers a loss if [a]

-- 5 of 7 --

-6-
non-excluded peril is the efficient proximate cause of the
damage, even though an excluded peril contributed to the
loss."
To the same effect, the Meggisons argue that all
insurance contracts, like theirs, are contracts of adhesion
and therefore their exclusions should not be enforced if
unreasonable or contrary to public policy. They contend that
the operative exclusion in this case runs afoul of these
limitations, in that the doctrine of efficient proximate cause
better accords with public policy and the reasonable
expectations of insureds.
These last two sets of arguments were not, as the
Meggisons' reply brief to this Court implicitly concedes,
raised before the trial court. The Meggisons have thus waived
the arguments, and by no means can we say that plain error
resulted. Indeed, much of this appeal is frivolous. The
place to try a case and to present one's arguments for the
first time is at the trial court, not the court of appeals.

-- 6 of 7 --

2 Preferred's Rule 38 Motion for Sanctions was opposed by
a filing from opposing counsel and we have considered the
arguments made.
-7-
Affirmed. Double costs, but not the attorneys fees
as sought by Preferred in its Rule 38 Motion, are awarded to
Preferred, against counsel for the Meggisons.2

-- 7 of 7 --