Berger v. H.P. Hood, Inc.

Gershengorn, J. The plaintiffs motion for reinstatement of orders for partial summary judgment as to American Mobile Corporation should be denied. In support of her motion, plaintiff argues, without any persuasive authority, that orders for partial summary judgment entered for the plaintiff against American Mobile Corporation (“American”) in 1989 should be reinstated by virtue of the Supreme Judicial Court’s vacation of a 1990 judgment in favor of American. In the Supreme Judicial Court’s decision, there was no mention of reinstating any prior Superior Court order. Instead, the Supreme Judicial Court held: the judge’s order allowing the motions for summary judgment requested by the defendants Hood, First, and Fund on the issue of Hood’s UM coverage is affirmed. The judge’s order allowing American’s motion for summary judgment on the issue of American’s UM coverage is vacated. The case is remanded to the Superior Court for further proceedings on the plaintiffs claim against American. The Supreme Judicial Court never ordered that the orders for summary judgment of January 6, 1989 and entry of judgment of November 15, 1989 be reinstated. Moreover, the plaintiff cites no persuasive authority for the proposition that following an appeal, there is such a thing as automatic reinstatement. The only case the plaintiff cites is not on point. The plaintiff cites to a New York Supreme Court, Appellate Division case for the proposition that “ ‘the reversal of a judgment or order vacating a prior judgment, order or proceeding of the same court operates to reinstate the original order, judgment, or proceeding . . .’ 5 C.J.S. Appeal & Error §960; Scally v. Scally, 542 N.Y.S.2d 844, 151 A.D.2d 869 (1989); 5 Am.Jur.2d §955.” In the instant case, the Massachusetts Supreme Court 233 vacated the Superior Court’s order allowing American’s motion for summary judgment on the issue of American’s underinsurance coverage. The Supreme Judicial Court did not reverse a Superior Court order. Rather, the Supreme Judicial Court vacated a Superior Court order and then remanded the case for further proceedings against American. Thus, the plaintiffs argument is without merit.