Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 11-1968

PAUL A. GARGANO and SHEILA GARGANO,

Plaintiffs, Appellants,

v.

VIGILANT INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard Stearns, U.S. District Judge]

Before

Boudin, Circuit Judge, 

Souter, Associate Justice,*

and Thompson, Circuit Judge.

Paul A. Gargano, with whom Gargano & Associates is on brief,

for appellant.

John J. McGivney, with whom Scott A. Aftuck and Rubin and

Rudman LLP were on brief, for appellee.

August 24, 2012

The Hon. David H. Souter, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Paul Gargano represents 1

himself and his wife in this suit (removed from a Massachusetts

state court) seeking a declaration that the defendant, Vigilant

Insurance Company, is liable under the Garganos’ homeowners’

insurance policy for the cost to remedy defective exterior staining

of the shingles of their house and barn in West Hyannisport,

Massachusetts, and for damages under state statutes aimed at false

and misleading commercial conduct. This appeal is from the

district court’s summary judgment for Vigilant, which we affirm.

The facts appear in the company’s unchallenged statement

of uncontested facts and documentary exhibits, all filed in support

of its motion for judgment under Federal Rule of Civil Procedure

56(a). Additional uncontested details are taken from the parties’

briefs. When the house was built in 1996, its shingled outer walls

were given a semi-transparent stain, but in 2002 the Garganos hired

a professional painter to treat the shingles with a primer and two

coats of stain, an application that was repeated in 2006. In 2007,

the Garganos noticed changes in the look of the surface of the

shingles, and over time it became apparent that the coating was

detaching from the wood underneath, to the point that in many

places it ultimately peeled off entirely. Two years went by, and

in 2009 they made a claim under their homeowners’ insurance policy

for the cost to remedy the failed staining.

 A member of the bar at the time suit was filed. 1

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The company engaged two experts to determine the cause of

the damage, one an engineer, the other an authority on exterior

coating. If we combine their complementary analyses, the trouble

started with the failure to coat the shingles on all sides with the

primer, so that when the underlying wood absorbed moisture through

unprimed surfaces, it built up to abnormal levels when it could not

be released through the heavily coated front side of the shingles. 

In time, the pressure of the trapped liquid caused cracking of the

primer and stain and ultimately forced the combined coating away

from the wood surface. Mr. Gargano was apparently dissatisfied

with these findings, to which he responded that he thought the

explanation was “product failure,” though he never offered any

expert opinion that placed the onus entirely on the primer and

stain (excluding manner of application). In any event, any such

difference of opinion appears to be insignificant under the policy

terms.

The company accordingly denied coverage for the Garganos’

loss on the authority of two policy exclusions. One provides that

there is no coverage for “gradual deterioration . . . however

caused, or any loss caused by . . . gradual deterioration.” The

other exclusion is for losses resulting from “faulty acts, errors

or omissions of [the insured] or any other person in planning,

construction or maintenance,” with “construction” being defined to

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include “materials [and] workmanship . . . used for construction or

repair.” 

The denial was followed by this proceeding based on the

Garganos’ claim of coverage, joined with two statutory claims under

Massachusetts law. They alleged unfair and deceptive practice in

the business of insurance in violation of Mass. Gen. Laws ch. 176D,

§ 3(9), consisting of minimal investigation of facts followed by

inadequate explanation of the coverage disclaimer. And they

charged unfairness and deception under Mass Gen. Laws ch. 93A,

§ 11, owing to selectivity for the purpose of denying coverage.

The district court set a discovery deadline of April 21,

2011, in anticipation of which Vigilant’s counsel spoke on the

phone with Mr. Gargano on April 15, recounting the policy language

and advising him of the inapplicability of each of the statutory

provisions the plaintiffs specifically relied upon. He told Mr.

Gargano that unless he withdrew the coverage and ancillary claims,

Vigilant would move for summary judgment under Federal Rule of

Civil Procedure 56(a).

Mr. Gargano refused, and Vigilant immediately filed its

motion, supported by exhibits and the statement of uncontested

facts specified by local rule 56.1. In their opposition to the

motion, the Garganos filed no counterstatement, with the

consequence under the rule that Vigilant’s was deemed admitted. In

disregard of the expiration of the discovery period, the Garganos

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filed notices for depositions to be taken after April 21,

propounded interrogatories to be answered after that date, and

finally asked for an extension of the discovery period. To

summarize a complicated back-and-forth, the court enforced the

April 21 deadline by blocking the late discovery attempts and

denying the motion to extend. In due course, it granted the

judgment requested, after finding no genuine dispute about facts

entitling Vigilant to a judgment of no coverage based on each

exclusion, and after ruling that each statutory claim was mistaken:

there is no private cause of action solely under ch. 176D, § 3(9),2

and ch. 93A, § 11 applies only to a transaction the plaintiff has

entered into while engaged in trade or commerce, not for personal

reasons.

In our de novo review of the order granting summary

judgment, see McDonough v. Donahoe, 673 F.3d 41, 46 (1st Cir.

2012), the absence of merit in the appeal can be explained shortly. 

Nothing more needs to be said about the dismissal of the statutory

claims, which are not discussed in the Garganos’ brief and are

consequently no longer in the case. Harriman v. Hancock Cnty., 627

Massachusetts law does provide consumers with a private 2

right of action for violations of ch. 176D, § 3(9), although the

Garganos’ complaint failed to cite the specific statutory provision

that authorizes such actions. See Mass. Gen. Laws ch. 93A, § 9(1)

(consumers’ right of action for violations of ch. 176D, § 3(9));

see also Wheatley v. Mass. Ins. Insolvency Fund, 925 N.E.2d 9,

12-13 (Mass. 2010) (overview of statutory scheme). The Garganos

have not appealed this part of the district court’s decision.

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F.3d 22, 28-29 (1st Cir. 2010). As for the coverage claim, the

Garganos raise three arguments: that the policy exclusions do not

unambiguously exclude coverage, that it was an abuse of discretion

to grant summary judgment when discovery was incomplete, and it was

likewise an abuse to grant judgment when Vigilant had failed to

engage previously in good faith consultation with plaintiffs’

counsel with the aim of narrowing issues or settling, as required

by local rule 7.1. None of these arguments has any substance.

The first, that the exclusions cited do not unambiguously

exclude coverage implicates the general rules of insurance contract

construction, that terms are to be understood in accordance with

standard usage, with coverage exclusions and any ambiguity of

policy language being construed against the insurer. See Camp

Dresser & McGee, Inc. v. Home Ins. Co., 568 N.E.2d 631, 635 (Mass.

App. Ct. 1991). Uncertainty and ambiguity, however, come to the

fore only when they might reasonably affect the application of the

terms to facts at hand, and there is no such possibility in the

application of either exclusion here.

The gradual deterioration exclusion was invoked on the

basis of a change in the condition of the surface stain that

progressed over a period of more than a year before the coverage

was claimed in 2009. Even if we ignore the failure to counter

Vigilant’s fact statement, the Garganos’ own deposition testimony

admits the timing, although the district court noted that their

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statements variously identified the start of the peeling as

anywhere from 7 to 19 months after the 2006 job. Given such a

stretch of time, Mr. Gargano’s claim that the deterioration was

progressing “rapidly,” not gradually, did not rise above word play,

and failed to create any genuine fact dispute justifying a trial. 

While, to be sure, “gradual” has no mathematically fixed range, the

pace of the detaching stain was a long way from a lightning bolt or

a falling tree, and in calling it gradual the district court was

drawing no fine line.

Applying the faulty construction or maintenance exclusion

is just as obvious. “Faulty” here does not mean negligent or

blameworthy on the part of a homeowner or his contractor, but

simply tainted by imperfection. See In re Chinese Manufactured

Drywall Prods. Liability Litig., 759 F. Supp. 2d 822, 844 (E.D. La.

2010). Thus, the uncontradicted conclusion relied on by the

district court, that a cause of the damage was the failure to prime

coat the shingles on all surfaces, counts as faulty maintenance,

there being no question that periodically covering the exterior

surface of a wooden house is an element of maintaining it. And

even if Mr. Gargano’s general attribution to inadequate “product”

were competent evidence, it is hard to see why the choice to use

the product would not be a faulty act of maintenance, with coverage

for ensuing loss excluded. 

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And for the very reasons that no subtlety is required to

apply the exclusions, there is nothing to the Garganos’ argument

that the policy was so defective in its ambiguous terms, left

undefined in Vigilant’s responses to discovery requests, as to make

the policy itself “voidable.” For that matter, even assuming that

the pleadings were adequate to allow such a voidability claim to be

raised, it is unclear what the Garganos might hope to gain by an

election to ask that the policy be declared void; return of

premiums, perhaps.

There is, finally, no justification for the Garganos’ two

collateral arguments against the judgment. Their claims of abuse

of discretion in ruling on Vigilant’s motion before discovery

completely ignores the facts that their interrogatories and

deposition notices called for action after the discovery deadline,

and that their motion to extend discovery (itself made after that

deadline) was denied. They have failed even to raise an argument

that setting and enforcing the April 21 deadline was unreasonable.

Nor is there any support for their position that the

district court should have refused summary judgment as a penalty

for a failure on the part of Vigilant’s counsel to honor local rule

7.1(A)(2), providing that “[n]o motion shall be filed unless

counsel certify that they have conferred and have attempted in good

faith to resolve or narrow the issue.” Vigilant’s lawyer certified

he had complied with the rule, and we agree that he did. In an

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affidavit filed with the court he swore that he had called Mr.

Gargano, explained the applicability of the two exclusions and the

inapplicability of the provisions cited as support for the two

statutory claims, and requested that Mr. Gargano voluntarily

dismiss his action with prejudice or Vigilant would move for

summary judgment. Mr. Gargano, in his brief here, does not

disagree about the substance of the conversation, but says that

opposing counsel’s “brief phone call, with the sole unreasonable

request that the case be dismissed with prejudice to avoid a motion

for summary judgment, hardly qualifies” as compliance with the

rule, citing Converse, Inc. v. Reebok Int’l Ltd., 328 F. Supp. 2d

166, 173 (D. Mass. 2004). On the contrary, however, this is a case

in which good faith required nothing more.

Although we have refrained from a plenary recitation of

facts and detailed narrative of litigation history, what we have

mentioned so far is representative. Nothing brought to our

attention in the record justifies Mr. Gargano’s persistence in

claiming coverage in spite of the obviously pertinent exclusions,

or the suit against Vigilant, or the appeal from summary judgment. 

The entire course of conduct has apparently been groundless at

least from the moment the exclusions were brought to Mr. Gargano’s

attention, and in these circumstances good faith did not require

Vigilant’s lawyer to humor his opponent by considering anything

less than he requested. We do not draw this conclusion lightly,

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for we are confronted daily with the costs that obstinacy imposes

on decent litigants and on the judicial system. But in this

extreme case Mr. Gargano appears to have acted intolerably.

Affirmed.

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