CULLEN ENTERPRISES, INC. [Note 1] & another [Note 2] vs. MASSACHUSETTS PROPERTY INSURANCE UNDERWRITING ASSOCIATION.

ABRAMS, J. This case involves claims of the plaintiffs -- Vincent Losinno, trustee in bankruptcy of Cullen Enterprises, Inc., and James B. Cullen -- against the defendant, Massachusetts Property Insurance Underwriting Association ("Fair Plan"), [Note 3] for proceeds under a fire insurance policy issued in compliance with G. L. c. 175, Section 99, by the Fair Plan to Cullen Enterprises.

The basic facts are as follows. [Note 4] In May, 1973, the plaintiff James Cullen sold to William Saccone and Barbara Saccone all the shares of stock in his restaurant business, incorporated under the name Cullen Enterprises, Inc. William Saccone agreed to continue making payments to the Ipswich Savings Bank on the first mortgage. Saccone also gave Cullen a partial down payment and a promissory note secured by a mortgage in the amount of $181,000. Saccone became delinquent on his payments to Cullen, and business declined at the restaurant. In March, 1975, Saccone made his last payment to Cullen.

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In the spring of 1975, Saccone sought protection from his creditors by filing a petition under c. 11 of the Bankruptcy Code of 1898 [Note 5] in the United States Bankruptcy Court. The bankruptcy judge appointed the plaintiff Losinno receiver of Cullen Enterprises, Inc., in May, 1975. In addition, Saccone applied for and received from the Fair Plan a fire insurance policy in the amount of $200,000 covering the building and $50,000 covering the contents for a term of one year beginning on July 25, 1975. The Ipswich Savings Bank was named as first mortgagee on the insurance policy, and Cullen was named as second mortgagee. Losinno was listed after the two mortgagees in the mortgage interest section of the policy.

On September 29, 1975, [Note 6] a fire totally destroyed the restaurant. The fire was of suspicious origin. There was evidence that Saccone had set it. In October, 1975, the Fair Plan paid Ipswich Savings Bank, the first mortgagee, the amount due on its mortgage in return for an assignment of the note and mortgage. The Fair Plan refused to pay either Cullen or Losinno, who became the trustee in bankruptcy.

Cullen and Losinno commenced this action against the Fair Plan in September, 1977. The Fair Plan in its answer raised the affirmative defense that the plaintiffs violated the fraud and concealment clause of the policy. The complaint was amended in March, 1978, by substituting Losinno as trustee in bankruptcy and by adding a count for relief under G. L. c. 93A. Cullen moved for partial summary judgment on his mortgage claim. The motion judge allowed the motion for summary judgment as to the Fair Plan's liability. Cullen was awarded the money left on the building portion of the policy after the payment to Ipswich Savings Bank and an additional $20,000, which had been paid to the Fair Plan after the trustee in bankruptcy sold the property of Cullen Enterprises. The Fair Plan filed a timely notice of appeal. The Fair Plan moved to

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vacate the partial summary judgment. The judge denied the motion to vacate. The Fair Plan again filed a timely notice of appeal.

In 1984, after a jury-waived trial on Cullen's c. 93A claim and on Losinno's claim, the judge concluded that there was no merit to the c. 93A claim against the Fair Plan. The judge also determined that Losinno was not entitled to recover under the insurance policy because he succeeded to Saccone's interest and Saccone was not entitled to recover any proceeds from the policy because he was involved in the arson. Cullen and Losinno appeal these rulings.

We affirm the allowance of the motion for partial summary judgment for Cullen, the denial of the Fair Plan's motion to vacate, and the denial of relief to Cullen under c. 93A. We reverse the trial judge's denial of Losinno's claim under the policy.

1. Cullen's motion for partial summary judgment. On April 20, 1982, the plaintiff Cullen filed a motion for summary judgment. The judge considered the pleadings and the affidavits of the following individuals with attached copies of correspondence: Gardner Stratton, the independent insurance adjuster retained by the Fair Plan; Frank Barber, III, the Fair Plan's attorney; Richard L. Levine, Cullen's attorney from 1970 to 1979; and Cullen. [Note 7] Based on this information, the judge allowed Cullen's motion for summary judgment on the issue of liability. [Note 8] On appeal, the Fair Plan argues that this ruling was erroneous. We disagree.

If the pleadings and affidavits before the judge [Note 9] "show that there is no genuine issue as to any material fact and that the

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moving party is entitled to a judgment as a matter of law," summary judgment is appropriate. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). Once a motion for summary judgment is made and supported by affidavits, the "adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Mass. R. Civ. P. 56 (e). "Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." Madsen v. Erwin, 395 Mass. 715, 721 (1985), quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972). See McDonnell v. Flaharty, 636 F.2d 184, 187 (7th Cir. 1980); Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1014-1015 (5th Cir. 1967). If the opposing party fails properly to present specific facts establishing a genuine, triable issue, summary judgment should be granted. See Community Nat'l Bank v. Dawes, 369 Mass. 550, 554 (1976).

Those issues material to Cullen's claim include (1) whether he has a valid mortgage interest and (2) whether he was responsible in any way for the fire that destroyed the building. If he has a valid interest and if he were not involved with the suspicious fire, he is entitled to judgment. See G. L. c. 175, Sections 97 and 99 (1984 ed.). There were no facts in the defendant's affidavits at the time of the motion for partial summary judgment indicating that Cullen was involved in the fire. [Note 10] Thus,

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the only facts material to the partial summary judgment concerned whether Cullen's claimed mortgage interest was valid and whether the Fair Plan received adequate notice of Cullen's status as mortgagee.

On this issue, we look to the documentary evidence accompanying the affidavits submitted for the judge's consideration. On June 18, 1976, Stratton, the Fair Plan's insurance adjuster, wrote a letter to Mr. Levine, Cullen's attorney, requesting information concerning Cullen's mortgage interest. [Note 11] On February 2, 1977, Mr. Levine sent a letter back to Stratton, noting that Mr. Levine had no record of his having responded to the June 18, 1976, letter and asking that Stratton let him know if any response still was necessary. On both March 11 and April 11, 1977, Stratton again requested the information. On April 12, 1977, Mr. Levine responded, enclosing a copy of the promissory note, the mortgage, and a security agreement as to personalty.

On April 21, 1977, Stratton in a letter acknowledged receipt of Mr. Levine's April 12 letter. He requested "a photostatic copy of Mr. Cullen's records showing the dates and amounts of all payments received by him under the promissory note." He added that, "[w]hen this information has been received, this matter will be referred to counsel for [the Fair Plan]." On May 27, 1977, Mr. Levine sent copies of cancelled checks written by Saccone to the Cullen account at the Ipswich Savings Bank. [Note 12] Finally, on October 6, 1977, Mr. Levine sent Stratton a letter with computations as to the amount of money owed Cullen on the mortgage.

This documentary history tended to establish that Cullen supplied the insurance adjuster with all the information requested

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to substantiate his interest: the adjuster had the promissory note, the mortgage, the cancelled checks, and a statement of the amount owed Cullen on the mortgage. The burden thus shifted to the Fair Plan, as the opposing party on the motion for partial summary judgment, to provide some record support for its position that, in fact, Cullen did not provide information sufficient to substantiate his claim. See Brown v. TWA, 746 F.2d 1354, 1358-1359 (8th Cir. 1984); 10A C.A. Wright & A.R. Miller Section 2727, at 143-145 (1983). The affidavits of Stratton and the Fair Plan's counsel simply contained bare assertions that they had not received the necessary information. [Note 13] The Fair Plan did not file an affidavit establishing what further information it wanted and could not obtain beyond that already provided by the plaintiff. The Fair Plan's general denials do not contravene the documents before the judge. The Fair Plan made no claim under Mass. R. Civ. P. 56 (f) that it was unable to present by affidavit facts essential to justify its opposition to the motion. It did not "show [any] circumstances which hamstring [it] in presenting that proof by affidavit in opposition to the motion." Kaplan, Amendments of the Federal Rules of Civil Procedure, 1961-1963 (ii), 77 Harv. L. Rev. 801, 826 (1964).

The documentary evidence before the motion judge, in sum, does not support the Fair Plan's contentions. Based on the evidence before him, the judge could conclude that the material facts which were not disputed showed that Cullen provided

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the documentation requested by the Fair Plan. We affirm the allowance of the motion for partial summary judgment. [Note 14]

2. The Fair Plan's motion to vacate. After the motion for partial summary judgment was allowed, the Fair Plan filed a motion to vacate the order. In support of its motion, the Fair Plan asserted that it had obtained information, undiscovered and unavailable at the time of consideration of the motion for partial summary judgment, establishing a genuine issue of fact as to Cullen's knowledge of the arson and thus as to the Fair Plan's liability to Cullen. [Note 15] That information was in the deposition testimony of one Allan Ponn, an attorney who represented Saccone from 1972 to 1979. [Note 16] The judge denied the motion to vacate. We affirm this ruling.

Massachusetts Rule of Civil Procedure 60 (b), 365 Mass. 828 (1974), provides that, "[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following [, among other,] reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time

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to move for a new trial under Rule 59 (b)." In a motion under subsection (1) of rule 60 (b), the moving party bears the burden of justifying the motion, see Reporters' Notes to Mass. R. Civ. P. 60 (b) Mass. Ann. Laws, Rules of Civil Procedure at 585 (1982), and "must make some showing of why he was justified in failing to avoid mistake or inadvertence" (footnote omitted). 11 C.A. Wright & A.R. Miller Section 2858, at 170 (1973). See Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 227-228 (1979). Relief is not justified for "any kind of garden-variety oversight." Goldstein v. Barron, 382 Mass. 181, 186 (1980), quoting Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969). Instead, "[t]he inadvertence, mistake or surprise as well as neglect must be excusable in order to give the court power to set aside the judgment." Geigel v. Sea Land Serv., Inc., 44 F.R.D. 1, 2 (D. P.R. 1968). Similar considerations are relevant under rule 60 (b) (2). [Note 17] The moving party may prevail only if "the evidence relied on was not available . . . for introduction at the original [proceeding] by the exercise of reasonable diligence . . . ." DeLuca v. Boston Elevated Ry., 312 Mass. 495, 497 (1942). If the moving party fails to show why he did not have the evidence at the time of the original proceeding, the party will not prevail. 11 Wright & Miller, supra Section 2859, at 183-184.

Resolution of a rule 60 (b) motion rests in the discretion of the trial judge, and we "will show marked deference to the lower court's resolution of such a motion." Chu-Kun Woon v. Moy, 17 Mass. App. Ct. 949 (1983). See DeLuca v. Boston Elevated Ry., supra. A denial of a rule 60 (b) motion "will be set aside only on a clear showing of an abuse of discretion." Murphy, supra at 227.

In its motion, the Fair Plan presented no evidence compelling the judge to make "the threshold finding that the evidence, claimed to be newly discovered, `was not available [during

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the proceedings on the summary judgment motion] . . . by the exercise of reasonable diligence. . . .'" Graci v. Damon, 6 Mass. App. Ct. 160, 166, aff'd 376 Mass. 927 (1978), quoting DeLuca v. Boston Elevated Ry., supra at 497. The Fair Plan asserts only that because the deponent Ponn represented Saccone from 1972 until 1979, Ponn's testimony was unavailable prior to the filing of the motion to vacate. The partial summary judgment motion, however, was filed and heard in 1982-1983. [Note 18] There is no explanation of why an affidavit from Ponn or at least an affidavit from an officer of the Fair Plan was not filed explaining why the Fair Plan was unable to file an affidavit under rule 56 (f). See Kaplan, supra. On the record, there is no evidence from the Fair Plan that it was unable to file an affidavit between 1979 and 1982, the year the motion was heard. The judge did not abuse his discretion in denying the motion to vacate the partial summary judgment.

3. Cullen's claim under G. L. c. 93A. In March, 1978, the plaintiffs [Note 19] amended their complaint by adding a claim alleging that the knowing and wilful failure of the Fair Plan to make payments under the policy constituted an unfair and deceptive practice under G. L. c. 93A. After trial, a judge of the Superior Court denied relief under c. 93A. Cullen appeals, arguing that the Fair Plan's actions, violating the principles of G. L. c. 176D, Section 3, (9) (d), (e), (f), and (n), also violated c. 93A. [Note 20] We disagree.

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We summarize the facts as found by the judge on Cullen's c. 93A claim. In September, 1977, Cullen commenced his action against the Fair Plan. The judge found that Cullen did not provide the full information required by the Fair Plan to process the claim until October, 1977. See supra at 891-892. The judge further found that the checks in payment of Saccone's promissory note to Cullen "created some legitimate confusion in the Fair Plan's adjuster's mind as to who[m] exactly those checks were made payable to and caused the adjuster to question Cullen's interest." [Note 21] The judge found that the Fair Plan's attorney chose to defend the claims against the Fair Plan and "reasonably concluded that it was futile to seek to settle the matter." The judge concluded that, in these circumstances, "the Fair Plan did not engage in any deceptive conduct" and that "it would be stretching matters beyond any reasonable bounds to conclude that it acted unfairly . . . ." While the issue was close, the judge evidently believed that the Fair Plan's claims manager and adjuster were uncertain and confused as to whether Cullen had a legitimate interest in the

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property. [Note 22] Because he determined that the Fair Plan's representatives were credible, he concluded that the Fair Plan's delay in determining whether to pay Cullen was not a violation of c. 93A. Credibility is for the trier of fact, Lupia v. Marino, 353 Mass. 749 (1967); Jennings v. Bragdon, 289 Mass. 595, 597 (1935), and we do not substitute our judgment for that of the trier of fact. Joseph Amara & Sons v. Providence Steamboat Company, 360 Mass. 850, 851 (1971).

Essentially, Cullen complains about the Fair Plan's delay in paying his claim under the policy. The Fair Plan, however, had every right to conduct its investigation both of the validity of Cullen's mortgage interest and of the possibility that Cullen was involved in the arson. After the partial summary judgment, the Fair Plan certainly had the right to appeal the judgment. Moreover, the major reason for the delay in finally resolving the issue of the Fair Plan's liability was the intervening trial on the c. 93A claim. Cullen could have hastened the appeal by moving for entry of a final judgment as to the partial summary judgment under Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), which provides that, if there is an express determination that there is no just reason for delay, the court may direct entry of final judgment on some but not all of the claims. An appeal then could follow on the claims on which the judge entered a judgment.

4. The claim of the trustee in bankruptcy. At trial, the judge denied the claim of the plaintiff Losinno, the trustee in bankruptcy of Cullen Enterprises, for recovery under the fire insurance policy for the value of the contents of the restaurant. [Note 23] Losinno appeals, essentially arguing that, because of his status first as custodial receiver in bankruptcy and later as trustee in bankruptcy, recovery under the policy should not be denied based on Saccone's arson. [Note 24] We agree with this assertion.

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The facts relevant to Losinno's claim as found by the judge are summarized as follows. In approximately April, 1975, Saccone as president of Cullen Enterprises filed a petition in the United States Bankruptcy Court under c. 11 of the Bankruptcy Code of 1898, seeking protection from creditors. The Bankruptcy Court appointed Losinno as custodial receiver of Cullen Enterprises in May, 1975. As custodial receiver, Losinno received weekly reports from Saconne regarding the business. Based on this information, Losinno made periodic reports to the Bankruptcy Court.

After Losinno's appointment as receiver, Cullen Enterprises, Inc., William Saccone, president, and Ipswich Steak and Seafood House took out the fire insurance policy from the Fair Plan. "Vincent Losinno, Receiver in bankruptcy, AHIMA" [Note 25] was listed as the third mortgage interest behind Ipswich Savings Bank and James Cullen. In 1978, Cullen Enterprises was adjudicated bankrupt and Losinno was appointed trustee in bankruptcy.

The judge concluded Saccone caused the September 29, 1975, fire. The judge ruled that "Losinno can have no more rights in this matter than Saccone" and that the defense of arson thus was available to the Fair Plan as to Losinno's claim under the policy. We reverse.

The purpose of the policy in the case at bar was to protect the assets and the property of Cullen Enterprises. The policy was taken out when Cullen Enterprises already was within the jurisdiction of the Bankruptcy Court. See Imperial Assurance Co. v. Livingston, 49 F.2d 745, 747 (8th Cir. 1931). The benefit of insuring the property and assets of Cullen Enterprises did not inure to Saccone, as president of the corporation, but instead inured to the potential bankruptcy estate and the creditors of the corporation. At the time the corporation took out

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the policy, Losinno was the receiver. The duty of a receiver is to preserve and protect the bankruptcy estate until termination of the bankruptcy proceedings or the appointment of the trustee. See Meehan v. King, 54 F.2d 761, 763 (1st Cir. 1932); Bingaman v. Commonwealth Trust Co., 1 F.2d 505 (D. Pa. 1924). Thus, at the time the policy was taken out, Losinno was the insured party because it was he who represented the interests of the potential bankruptcy estate. Saccone, the president of the corporation which was involved in bankruptcy proceedings, was not insured under the policy. He merely managed the property on behalf of the creditors.

Because Losinno was the insured party under the contract, Saccone's arson has no bearing on Losinno's rights. The fraud committed by Saccone was not fraud committed by the insured. The insured, Losinno, is entitled to recover. [Note 26]

The Fair Plan's mistake placing Losinno's name in the mortgage interest section of the policy does not change this result. The named insured was "Cullen Enterprises, Inc." Because that entity filed for bankruptcy before the policy was taken out, the only individual possible to represent the interests of the corporation was Losinno. Thus, the error in placing Losinno's name in the mortgage section rather than explicitly as the insured is only a slight discrepancy, and, as such, is without significance. See 2A M.S. Rhodes, Couch's Cyclopedia of Insurance Law Section 23:7 (2d ed. rev. 1984). Moreover, the Fair Plan, placing Losinno's name on the policy as receiver in bankruptcy, issued the policy with knowledge of the relative rights of Losinno and the potential bankruptcy estate. The policy cannot be avoided by reason of a mistake made in recording the insured's name by an employee of the insurer to whom the Fair Plan assigned the risk. See id.; 7 M.S. Rhodes,

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supra at Section 35:178. "The fact that the defendant[] erroneously described [the plaintiff's interest] . . . should not affect his right to recover on the basis of his actual interest." Bergeron v. Fontaine, 109 N.H. 370, 373 (1969). [Note 27]

5. Conclusion. The order allowing the motion for partial summary judgment is affirmed, the order denying the motion to vacate is affirmed, and the ruling denying Cullen's claim under c. 93A is affirmed. The ruling denying Losinno's claim for recovery under the policy is reversed.

So ordered.