36 Mass. App. Ct. 926 | Mass. App. Ct. | 1994
Two Massachusetts motor vehicle liability policies are involved in the dispute. An Aetna policy, effective from October 23, 1988, to October 23, 1989, covered Hughes for his personal automobile. The policy provided underinsurance benefits in the amount of $10,000, with the following proviso: “If someone covered under this Part is using an auto he or she does not own at the time of the accident, the owner’s . . . Underinsured Auto insurance must pay its limits before we pay. Then, we will pay, up to the limits shown on your Coverage Selections Page, for any damages not covered by that insurance.” An Arbella policy, effective from January 23, 1989, to January 23, 1990, covered Hughes’s employer with respect to the auto Hughes was driving at the time of the accident and provided underin-surance benefits up to $100,000 for persons injured while occupying the insured automobile “unless that person has a Massachusetts motor vehicle liability policy of his or her own providing similar coverage.” The Arbella policy also provided that underinsurance coverages could not be stacked.
Arbella brought this action seeking a declaration that, because the Aetna policy provided Hughes with “similar coverage” to that provided by the Arbella policy, Hughes did not have the right to underinsurance benefits under the Arbella policy but only under the Aetna policy. On cross motions for summary judgment, a judge concluded that the Aetna policy did not provide “similar coverage” and ruled in favor of Hughes and Aetna and against Arbella. We reverse.
The two policies are similar at least to the extent that they both provide the insured with underinsurance coverage. Hughes and Aetna concede that the fact that the two policies provide coverage in different amounts does not make them dissimilar for these purposes. See Plymouth Rock Assur. Corp. v. McAlpine, 32 Mass. App. Ct. 755, 758 (1992). They contend, instead, that the coverages are dissimilar because they are based upon different statutory schemes. With the enactment of St. 1988, c. 273, effective January 1, 1989, certain changes in the law with respect to underinsurance affected policies issued or renewed on or after that date. The Aetna policy took effect before the changes; the Arbella policy took effect after the changes. In accordance with the law in effect at the time the Aetna policy took effect, a claimant was required to seek underinsurance benefits under the policy covering the vehicle in which he was injured before recovering
Contrary to the contention of Hughes and Aetna, giving effect to the language in the Arbella policy does not have the effect of applying the 1988 statute retroactively. See Plymouth Rock Assur. Corp. v. McAlpine, 32 Mass. App. Ct. at 758-759. Under the Aetna policy, Hughes would be required to exhaust any underinsurance benefits available from Arbella before looking to Aetna. The Aetna policy, however, contemplates that an insured might suffer injuries for which other underinsurance coverage would not be available. Because of the express terms of the Arbella policy, no underinsurance benefits are available to Hughes. The language of the two policies may be read harmoniously without giving retroactive application to the 1988 amendment.
Accordingly, the judgment is vacated, and a new judgment shall be entered declaring that the Aetna policy provides coverage similar to that of the Arbella policy and that the Aetna policy, therefore, is the only under-insurance coverage available to Hughes.
So ordered.