On July 15, 2019, an errors and omissions dispute between an insured and WIC Insurance, Inc. (“WIC Insurance”); a Waltham insurance agency, resulted in the agency having to pay its insured $220,000 in satisfaction of a jury verdict against the agency.
In her lawsuit, the insured, Ellen Braaten (“Ms. Braaten”), alleged that WIC Insurance removed her from a homeowner’s policy of insurance without her knowledge and consent. As a result, she had no insurance for her personal property when it was later destroyed in a condominium fire. WIC Insurance claimed it had followed the instructions of her former husband, Eric Braaten, when it removed her from the insurance policy. The agency also denied that it was asked to procure an insurance policy for Ms. Braaten’s condominium or that it had acted negligently in dealing with Ms. Braaten.
Eighteen-year relationship with WIC Insurance
In 1998, Ms. Braaten and her then-husband, Eric Braaten, moved to Concord and secured both their homeowner’s and auto insurance from WIC Insurance in Waltham. Over the next eighteen years, Ms. Braaten claimed that she and her husband relied upon WIC Insurance for their insurance expertise in purchasing both their auto insurance and homeowner’s insurance.
For several years prior to 2016, Ms. Braaten and her husband had a homeowner’s policy with the Commerce Insurance Company (Policy No. BDZXPV). Ms. Braaten was a listed co-insured on the BDZXPV policy that Ms. Braaten believed insured a condominium in Charlestown, Massachusetts, and a vacation home in Chester, Massachusetts, that the couple owned.
Charlestown and Chester properties split in the divorce
During the first part of 2016, Ms. Braaten and her husband were mired in the process of getting a divorce. In anticipation of the divorce decree, Ms. Braaten and her husband had agreed to a property distribution agreement.
Under the terms of that agreement, Mr. Braaten would take sole ownership of the Chester home, and Ms. Braaten would take sole ownership of the Charlestown condominium. The property agreement also required each of the Braatens to obtain insurance for their respective residences. The Braaten’s transferred ownership of these properties per the terms of the separation agreement in March 2016.
Ex-husband has Ms. Braaten taken off the Commerce policy
After the deeding of the two properties, in March of 2016, Mr. Eric Braaten contacted WIC Insurance, Inc. and advised WIC Insurance, Inc. that he and Ms. Braaten were getting divorced. He also advised the agency that he and Ellen Braaten had refinanced their respective Charlestown and Chester homes, and asked WIC Insurance what additional information WIC Insurance, Inc. needed to change names on their policies of insurance.
WIC Insurance sent a policy change request to Commerce Insurance Company, removing Ellen Braaten’s name as a co-insured on Homeowner’s Policy BDZXPV. This was done without Ms. Braaten’s knowledge or consent. In fact, WIC Insurance never notified Ms. Braaten that the agency had removed her as a co-insured on the BDZXPV policy.
On June 13, 2016, the Suffolk County Probate Court granted Ms. Braaten and her husband an uncontested divorce.
Six-alarm fire in Charlestown destroys Ms. Braaten’s condo along with thirteen other condos
On July 21st, a major fire engulfed two buildings on Bunker Hill Street in Charlestown. The Boston Fire Department pulled six alarms and brought in over one-hundred firefighters before they put the fire down. The resulting damage, primarily involving two buildings with a total of fourteen condominiums, had damages measured in the millions.
Ms. Braaten’s condominium was a total loss. A Boston Globe article on the fire told how she had rushed home from work after her son, who had barely escaped the burning building, had called her at work. She found “her street choked with thick brown smoke, her building and the one next to it in ruins” and could only say “I’ve lost everything,”
Friends and neighbors contribute $65,000 to a GoFundMe campaign for Ms. Braaten
Although Ms. Braaten immediately knew she had lost everything, and soon found out she had no insurance, she still had friends and neighbors.
They soon set up a GoFundmMe.com campaign, seeking to raise $60,000 to put Ms. Braaten back on her feet. Over the next several months, 237 donors contributed over $65,000 to the campaign managed by Ms. Braaten’s daughter.
Commerce advises Ms. Braaten that there is no coverage
Approximately four months after the July 16, 2019 fire, Ms. Braaten submitted a $241,000 claim for the loss of her personal property under the Commerce Insurance BDZXPV policy. Commerce Insurance Company subsequently informed Ms. Braaten that she was not a named insured under that policy as of the date of the fire, and therefore, Commerce denied her claim.
Ms. Braaten sues WIC Insurance over no notice of her removal as an insured
On September 1, 2017, Ms. Braaten filed a negligence suit against WIC Insurance. In that suit, she alleged that she was a co-insured with her husband on a homeowner’s policy, which she and her husband purchased through WIC Insurance, and that she and her husband had a long-standing relationship with WIC Insurance.
She further alleged that because of representations made by WIC’s employees, she believed that the Commerce Insurance Company Homeowner Policy No. BDZXPV insured the contents in both the Chester and Charlestown properties up to $360,000.00.
WIC Insurance contests liability on several grounds
Upon notice of the lawsuit, WIC Insurance notified its professional liability insurer. The counsel for the agency appointed by the insurer vigorously defended the claim contending:
- WIC Insurance processed Mr. Braaten’s policy change request, per his instructions, to list himself as the sole named insured on that policy.
- Since WIC Insurance had never procured insurance for the Charlestown condominium, WIC neither was asked to take nor took any actions concerning coverage for Ellen Braaten’s residence.
- WIC Insurance was not legally responsible for the insurance for the condominium, as it had never procured insurance for that property.
- Ms. Braaten knew or should have known that she needed to obtain insurance for the condominium, in and after March 2016, by the expressed terms of the separation agreement.
- Ms. Braaten also knew or should have known that Mr. Braaten had the sole responsibility to insure his Chester residence after March 2016 under the parties’ separation agreement.
- Therefore, WIC Insurance claimed, even if Ms. Braaten thought that the insurance policy covering the Chester property covered her personal property in her Charlestown condominium when she was a co-owner of those properties, she knew she was not insuring the Chester property months before this fire and needed to obtain her own coverage for her condominium.
These defenses put forth by WIC Insurance, however, were not enough.
Two-day jury trial finds WIC Insurance seventy-five percent liable
On June 18 and 19, 2019, Ms. Braaten and WIC Insurance presented their respective claims to a jury in Boston. As is the common practice, the jury slip gave the jurors specific questions based upon the evidence and the judge’s instruction on the law. The questions and answers in this case were as follows:
1. Was the defendant, WIC Insurance, Inc., negligent through the acts or omissions of its employee? The jury marked “Yes” by an “X.”
2. Was the defendant’s negligence a substantial contributing factor in causing harm to the plaintiff? The jury marked “Yes” by an “X.”
3. Was the plaintiff, Ellen Braaten, negligent? The jury marked “Yes” by an “X.”
4. Was the plaintiff’s negligence a substantial contributing factor in causing harm to herself? The jury marked “Yes” by an “X.”
5. What percentage negligence do you attribute to each party? The total must equal 100%. The jury marked “25%” for the Plaintiff, Ms. Braaten, and “75%” for the Defendant, WIC Insurance.
6. What amount will fully and fairly compensate the plaintiff for the harm suffered? Do not deduct any amount from the total, even if you find that the plaintiff was negligent?
The jury accepted Ms. Braaten’s inventory and awarded her $241,025.92.
Comparative negligence reduces Ms. Braaten’s award by twenty-five percent
In Massachusetts, where, as in the present case, a jury finds that a plaintiff had negligence that contributed to their loss, they can still recover if they are not found fifty-one percent negligent.
However, their recovery is reduced by the percentage of their negligence as compared to the percentage of negligence of the defendant. In this case, Ms. Braaten had twenty-five percent comparative negligence to the seventy-five percent negligence of WIC Insurance.
As a result, the final judgment entered had Ms. Braaten’s damages reduced by twenty-five percent to $189,769.44. This number though, also had prejudgment interest added to it, as allowed by law, at twelve percent per annum, from the filing of the suit. The prejudgment interest of $39,014.38, brought Ms. Braaten’s final recovery to $219,783.82.
Thank you to Attorney Wood
I wish to thank Ms. Braaten’s attorney Daniel J. Wood, Esquire, of Wood & Gresham, P.C., in Wrentham for generously providing court documents on this case.
