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Vol. 7, Iss. 4
May 9, 2018

 

The New England Patriots Hater
And Insurance Coverage


 

 

Sports fans’ passion for their teams often runs deep. Some fans will go to extreme measures to satisfy it, sometimes even filing a law suit. Litigation has arisen over such things as fans’ unhappiness with their season tickets, inability to get Super Bowl tickets, a belief that they did not get their money’s worth from the play on the field and a host of other situations.

But what happened in Connors v. Hamilton, No. 17-0224 (Mass. Super. Ct., Essex Cty., Nov. 17, 2017) is hard to believe, even in the world of sports -- and especially pro football -- fanaticism. Then, that this remarkable case gave way to a coverage decision, can only be described as an embarrassment of riches.

Elizabeth Connors and Ethel Hamilton were septuagenarian next door neighbors in Swampscott, Massachusetts. Connors was a long-time New England Patriots fan, going back to the days of Jim Nance. Fifteen feet away lived Ethel Hamilton, a life-long Atlanta Falcons fan, who liked to recount her time watching Claude Humphrey play.

Connors and Hamilton spent many years talking football and good-naturedly taking shots at each other’s team, as sports fans are wont to do. But innocent ribbing ended in February 2017, after Super Bowl LI. From that point on the two women stopped speaking to each other. As sports fans know, in Super Bowl LI, the New England Patriots came back from a 25 point deficit to beat the Atlanta Falcons, 34-28, in overtime. It is one of the greatest comebacks in sports history. For Falcons fans it caused unimaginable heartbreak.

Shortly after the Patriots epic win, Connors hung a Patriots flag on the 20 foot flag pole outside her home. The flag pole had been dormant for years but Connors decided that the time to resurrect its use had now come. Hamilton was incensed by Connors’s flag flying. She was grieving over the Falcons loss and Connors knew it. As Hamilton saw it, flying the Patriots flag was insensitive, a tremendous insult and, as she put it, “rubbing a salt mine in an open wound.” Connors, for her part, insisted that she meant no insult by the flag. It was simply a way to express her excitement for the greatest Patriots win of all time.

Hamilton asked Connors to take down the flag. Connors refused. So Hamilton did what aggrieved people -- even septuagenarians in Swampscott, Massachusetts – do. With her grandson serving as her lawyer, Hamilton filed suit against Connors, alleging trespass, and seeking damages for intentional and negligent infliction of emotional distress.

Hamilton’s theory was a novel one. While acknowledging that neither Connors, nor her flag or flag pole, physically encroached on Hamilton’s property, the offending flag cast a shadow on Hamilton’s front lawn at certain times of the day. Hamilton alleged that the shadow of the flag, which she knew contained the Patriots logo, even if the logo was not visible on the shadow, served as a trespass, being an intentional and unauthorized entry upon Hamilton’s property.

Connors sought coverage for “the crazy lawsuit,” as she called it, from her homeowner’s insurer -- Chowda Mutual Insurance Company. But Chowda disclaimed coverage, alleging that the suit did not seek damages because of “bodily injury,” “property damage” or “personal and advertising injury.” With no defense forthcoming from her insurance company, Connors turned to her grandson to represent her. So it was the battle of the grandsons, who grew up playing together at their respective grandparents’ homes.

Connors’s grandson filed an answer to the complaint and then a motion for summary judgment, arguing that, as a matter of law, a shadow cast on one’s property cannot qualify as a trespass. Hamilton’s grandson cross moved for summary judgment. The court denied Connor’s motion and granted Hamilton’s.

The court ordered Connors to remove the flag from the pole and, following a damages hearing, in which Hamilton’s psychiatrist testified to his patient’s emotional injuries caused by the flag, awarded Hamilton $37,500. In support of the damages award the court stated: “While the claim is certainly unusual, Connors must take the plaintiff as she found her. And Connors found this plaintiff as a devastated Falcons’ fan.”

Connors, upset with her grandson’s performance, retained another lawyer and filed suit against Chowda Mutual, seeking recovery of the defense costs paid to her grandson, $37,500 paid to Hamilton and a claim for violation of General Laws c. 93A.

The parties filed cross motions for summary judgment. Connors’s motion was granted and Chowda’s motion was denied. In finding that the Chowda Mutual policy provided coverage for defense and indemnity for the Hamilton suit, the court in Connors v. Chowda Mutual Insurance Company, No. 17-0412 (Mass. Super. Ct., Essex Cty., Apr. 27, 2018) looked to the policy’s Liability section, which provided coverage for “personal and advertising injury,” defined, in part, as “the wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies.”

The court held that the shadow cast upon Ethel Hamilton’s property, by Elizabeth Connors’s offending flag, unquestionably resulted in the invasion of the right of private occupancy of the dwelling or premises that Hamilton occupied.

As the court explained: “If the right of private occupancy means anything, it means that a Falcons’s fan has the right not to be subjected to the shadow of a New England Patriots flag, not to mention just days after Tom Brady’s performance for the ages, thereby solidifying Brady as the greatest quarterback of all-time, despite the ridiculous deflate-gate allegations, as well as the baseless claims of Patriots cheating.”

[Interestingly, this type of “personal and advertising injury” coverage, under an ISO commercial general liability policy, adds that the wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, must be committed by or on behalf of the owner, landlord or lessor. That was not the case here. However, the liability section of a homeowner’s policy does not always contain the same language as an ISO CGL policy. In this situation, the difference in policy language created coverage under the Chowda homeowner’s policy that would not have existed under an ISO CGL policy.]

 

That’s my time. I’m Randy Spencer. Contact Randy Spencer at

Randy.Spencer@coverageopinions.info
 
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