La Brecque v. Grossett

Forte, J. This is a report resulting from a third-party defendant’s demurrer being sustained. An action was properly commenced in tort for property damage arising out of an accident on December 5, 1970 against Grossett, who impleaded the third-party defendant alleging that the third-party defendant issued an insurance policy to Grossett covering the period of April 1, 1970 through December 1970 (a copy of which was incorporated in and attached to the third-party plaintiff’s declaration) which allegedly required the third-party defendant to defend Grossett and to assume any liability if liability is found to exist in the original action. Grossett alleges he has complied with all requirements of the said insurance policy and that the third-party defendant refuses to defend and to assume liability, if found. [173] Because the trial justice who sustained the demurrer was not available, pursuant to Rule 30A of the District Court Rules, Justice Tiffany was appointed to settle the Report. In its brief and particularly in argument, the third-party defendant concedes the only ground upon which the demurrer was sustained or could be sustained is that because the third-party defendant in its answer denied the existence of a valid contract, Grossett has failed to append a valid contract, or proof thereof, to his third-party declaration, as required by G.L. c. 231 § 7, clause 11. There was error. Grossett well pleaded in his third-party declaration a valid contract of insurance and incorporated it in and attached it to his declaration. A demurrer admits all allegations well pleaded in a declaration and exhibits incorporated in and attached thereto. Kapinos v. Chicopee, 334 Mass. 196, 197 (1956). The demurrer is overruled and the action returned to the trial list of the Municipal Court of Dorchester.