O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

AVX Corp. v. Cabot Corp., 2007 WL 4711495 (Mass. Super.)
(Dec. 28, 2007) (van Gestel, J.).

AVX Corp. involved a dispute over the interpretation of a most favored customer (“MFC”) clause in a supply contract. This clause provided that if Defendant made certain sales to a third party at a price lower than the price charged to Plaintiff, then Plaintiff would be entitled to make subsequent purchases at the lower third party price. The MFC clause did not apply, however, to sales made to third parties pursuant to contracts entered into prior to the date of the agreement between Plaintiff and Defendant.

Defendant amended a contract with a third party with respect to its non-price terms. While this contract originally pre-dated Defendant’s agreement with Plaintiff and thus did not implicate the MFC clause, Plaintiff claimed that the amendment resulted in a new contract which did trigger the MFC clause.

The Court found that the language governing the applicability of the MFC clause was unambiguous and

thus presented an issue of law resolvable on summary judgment. Focusing on the amendments to the third-party contract, the Court found two provisions to be particularly significant. The first provision stated that the amended agreement “amends and restates in its entirety the Supply Agreement made the 14th day of July 2000.” Id. at *7. The second provision stated that the amended agreement “constitutes the entire understanding of the parties and supersedes all prior agreements and discussions among the parties respecting the subject matter hereof and thereof, including, without limitation, the Original Agreement.” Id. The effect of these two provisions was to “create a new agreement that supersedes the original July 14, 2000 agreement. Consequently, it … is subject to the MFC provisions in the 2001 Supply Agreement between Cabot and AVX.” Id. at *8.

Christine Anne Realty Corp. v. Gulf Ins. Co., 2007 WL 4707788 (Mass. Super.)
(Dec. 14, 2007) (van Gestel, J.).

Plaintiff’s insurance policy provided coverage for loss caused by fire during the period of November 10, 1998 to November 10, 2001. Plaintiff suffered a loss as a result of fire in March of 2001, and provided documentation to Defendant in March of 2003. Defendant reviewed the documentation, and in May of 2003 denied coverage based upon the policy’s two-year limitations period under G.L. c. 175, § 99. Plaintiff commenced suit in February of 2006 for violations of G.L. c. 93A and G.L. c. 176D, breach of contract and of the covenant of good

faith and fair dealing, misrepresentation, and estoppel.

G.L. c. 175, § 99 provides that every fire insurance policy shall include a limitation clause providing that “[n]o suit or action against this company for the recovery of any claim by virtue of this policy shall be sustained in any Court of law or equity in this commonwealth unless commenced within two years from the time the loss occurred.” This provision barred all of Plaintiff’s claims except the claim for declaratory judgment and the claim for violation of G.L. c. 93A and G.L. c. 176D.