The owner of the Massachusetts assisted living facility Gabriel House where 10 people were killed and 30 injured in a fire las
t July has been denied access to insurance proceeds he told a court are needed to repair the facility and pay employees and taxes.
Judge Joseph Ditkoff of the Massachusetts Appeals Court rejected a bid by Dennis Etzkorn, a member of the real estate ownersh
ip trust and owner of the assisted living services firm Gabriel Care that operated the facility, to ac
cess the funds due under a $6 million property insurance policy issued by Liberty Mutual Insurance Co. The New Bedford assisted living business has no liability insurance.
Etzkorn, along with other parties, faces multiple wrongful death and other lawsuits stemming from the fatal fire. The hold
on insurance proceeds was requested by a man whose mother died in the fire.
The appeals court upheld a ruling by Bristol Superior Court Judge Raffi N. Yessayan imposing the insurance attachment. The c
ourt has also approved an attachment on the real estate itself that blocks the owners from selling or transferring the property.
Massachusetts law says an attachment can be imposed where there is a “reasonable likelihood” that the plaintiffs
will recover a judgment equal to or greater than the attachment over and above any liability insurance available to satisfy the judgment.
Etzkorn tried to argue that while a sizable judgment may be likely against Gabriel Care, such a judgment was less likely against the real estate trust that took out the insurance policy an
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d thus the attachment was in error. The judge rejected this argument, noting that the trust and Gabriel Care, Inc. are interchangeabl
e and that Etzkorn conceded that the insurance proceeds would be available to Gabriel Care to pay employees.
Appeals Court Judge Ditkoff noted that the Superior Court judge found
that the plaintiff is likely to recover more than the insurance proceeds at issue, and that there is no applicable liability insuran
ce at all and the defendants raised no challenge to either finding. “I can discern no error,” Ditkoff wrote in a two-page opinion.
Etzkorn also had tried to argue that delaying his access to the insurance monies would place Liberty Mutual in violation of the
state’s consumer protection and insurance claims laws. But Liberty Mutual told the court that Etzkorn was misstating the laws and
that it could and would obey any court order.
The owners received about $550,000 in insurance claims payments
since the fire and before the attachment that they said they used to pay taxes, mortgage and salaries.
They argued that not having the remaining insurance funds from the $6 million policy would mean the business would likely fail and the building deteriorate and lose value.
One unusual turn in the case has been the discovery that Gabriel House has no liability insurance for the business.