Justice Robert M. Berliner


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Plaintiffs alleged insurer breached a homeowners’ insurance policy by failing to indemnify them for loss sustained at the property by a fire. They argued an Allstate agent was advised the family was moving to Ohio, indicating they planned to sell or use the property as a rental. Plaintiffs argued the agent and Allstate were aware the family lived in Ohio as of May 2011. They argued insurer waived defenses to coverage and should be estopped from claiming non-residency at the property as a basis for denial for the loss. Insurer noted using the property as a rental was a clear change in use and occupancy and it should have been informed. The court found plaintiffs failed to inform Allstate of a change in use and occupancy of the property, noting a passing comment in May 2011 to an agent they were thinking of selling or renting the property was insufficient to put Allstate on notice or inform it they were renting it out since 2012. It found it unreasonable to impute knowledge on Allstate from one comment made before the property was actually used as a rental, ruling waiver and estoppel were inapplicable as there was no evidence insurer voluntarily or intentionally relinquished rights to be informed of any change in title, use and occupancy. Insurer was granted summary judgment.