46 Mass. App. Ct. 500 | Mass. App. Ct. | 1999
This is an appeal by two insurance companies over who had the duty to defend an underlying tort action. Hingham Mutual Fire Insurance Company (Hingham) filed a complaint in the Superior Court for declaratory relief seeking contribution or
We state the facts. In the underlying tort action, arising out of a one-car accident, Rebekah Ely and Leah Ely sued Kathleen Crosby (Crosby) for negligence. All three were minors and occupants of the car. At the time of impact, Rebekah Ely was the driver,
1. Niagara, the motor vehicle liability insurer. Niagara argues that the motion judge erred in ordering it to pay one-half of Crosby’s defense costs because it had no duty to defend her under the terms of its policy. The pertinent language in the Niagara policy on which it relies is as follows:
“[W]e will pay damages to people injured or killed by your auto in Massachusetts accidents. . . . We will pay only if you or someone else using your auto with your consent is legally responsible for the accident.”
Niagara contends that Crosby’s grabbing the wheel, the act which caused the accident, was not a consensual use
The issue presented is whether a perceived emergency by an unlicensed minor, who had ingested a narcotic, which results in her suddenly grabbing the steering wheel causing an accident is sufficient to give rise to implied consent. Although no Massachusetts appellate decision appears to have determined that an emergency situation can confer implied consent, other jurisdictions have so held. See discussion in State Farm Mut. Auto. Ins. Co. v. Geico Indem. Co., 241 Va. 326, 330-331 (1991). Here,
2. Hingham, the homeowner’s insurer. Hingham asserts that the judge erred when he ordered it to share with Niagara the legal defense costs in the tort action. Noting that its policy language excludes coverage for accidents arising out of the “ownership, maintenance, [or] use ... of motor vehicles . . . operated by ... an insured,” Hingham contends that Crosby’s grabbing the steering wheel, whether she acted as the result of taking a hallucinogenic drug, seeing an object in the road, or believing the vehicle was drifting off the road, constitutes operation of the vehicle under the policy. There appears to be no Massachusetts appellate decision which has determined whether the act of grabbing the steering wheel is “operation” of a vehicle as contemplated under the standard homeowner’s motor vehicle policy exclusion. Other jurisdictions that have considered this issue have held that the grabbing of a steering wheel by a passenger does not constitute operation but rather interference with the operation of a motor vehicle. West Bend Mut. Ins. Co.
The law is well settled that “ ‘[exclusions from coverage are to be strictly construed,’ and any ambiguity in [an] exclusion ‘must be construed against the insurer.’ ” Hakim v. Massachusetts Insurers’ Insolvency Fund, 424 Mass. 275, 282 (1997), quoting from Vappi & Co. v. Aetna Cas. & Sur. Co., 348 Mass. 427, 431 (1965). It is also appropriate to consider “what an objectively reasonable insured, reading the relevant policy language, would expect to be covered.” 424 Mass, at 282, quoting from Trustees of Tufts Univ. v. Commercial Union Ins. Co., 415 Mass. 844, 849 (1993). We think that “an objectively reasonable insured” would believe that a motor vehicle has only one operator and that is the person who is in charge of the “actual physical handling of the controls of the vehicle.” See Commonwealth v. Jordan, 310 Mass. 85, 86 (1941). While there is no dispute that at the moment of impact Crosby was steering the motor vehicle, steering is only one mechanism that controls the movement of the vehicle. Operation necessarily includes control over all the parts of the car that allow it to move, including, e.g., the engine and brakes. On the other hand, operation may be interpreted to include any voluntary act that controls the movement and direction of the car such as grabbing the steering wheel. See Williams v. Nelson, 228 Mass. 191, 194-195 (1917). Because the word “operated” may be interpreted in more than one way, we conclude that- an ambiguity exists in the policy and the policy should be interpreted in favor of providing coverage. See Harrison v. Tomes, 956 S.W.2d at 269-270. Accordingly, we are of the opinion that, under the terms of its policy, Hingham must bear one-half of the costs it incurred in defending Crosby.
While the amended judgment could have been more explicit in declaring the rights of the parties, we understand it to have done so, by requiring Niagara to pay Hingham a pro rata share
So ordered.
The car was registered in the name of Rebekah’s father, Russell Ely.
Niagara concedes that Crosby’s grabbing the wheel constitutes use of the vehicle.