
    TOURTELLOT & COMPANY, INC. v. DUXBURY AND RAY INSURANCE AGENCY, INC. and Employers Mutual Casualty Company.
    No. 94-193-Appeal.
    Supreme Court of Rhode Island.
    Feb. 16, 1995.
    Vincent Cannon, Providence.
    Moira Reynolds, James McKenna, Carol Nicholson Gliek, Providence.
   ORDER

This case came before a hearing panel of this court for oral argument February 7, 1995, pursuant to an order that had directed both parties to appear in order to show cause why the issues raised by this appeal should not be summarily decided.

After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues should be summarily decided.

The defendant, Employers Mutual Casualty Company, appeals from a summary judgment entered in the Superior Court in favor of the plaintiff. Our analysis of the record in this case indicates that there were material issues of fact in respect to whether the plaintiff had made a decision not to obtain coverage for the risk of power failure that occurred on its premises. There are also issues of fact concerning whether plaintiffs loss was due to hurricane damage or to the failure of its own back-up generator. We believe that Jerry’s Supermarkets, Inc. v. Rumford Property and Liability Insurance Co., 586 A.2d 539 (R.I.1991) and Pressman v. Aetna Casualty & Surety, 574 A.2d 757 (R.I.1990), are not controlling under the possible factual circumstances of the case at bar.

Consequently, the summary judgment entered in the Superior Court is hereby vacated and the case is remanded for further proceedings consistent with this order.

LEDERBERG, J., did not participate.-  