55 Mass. App. Ct. 789 | Mass. App. Ct. | 2002
The case arises out of injuries sustained by defendant Patricia A. Slavin on May 17, 1999, during the loading of a pick-up track owned by defendant William Santos, Jr., and insured by plaintiff Metropolitan Property and Casualty Insurance Company (Metropolitan). While Santos operated a hydraulic lift at the Plymouth town wharf, Slavin was hit in the mouth with three 100-pound totes of fish as she stood behind the track in order to guide the totes into the truckbed. At the time of the incident, Santos had a Standard Massachusetts Automobile Insurance Policy (Sixth Edition) (policy) issued by Metropolitan, covering the period between July 13, 1998, and July 13, 1999.
Metropolitan filed a complaint for declaratory relief, seeking a declaration and order that it had no obligation to provide insurance benefits to or for Slavin in connection with the incident. After the parties jointly filed a stipulation of facts along with cross motions for summary judgment, a Superior Court judge allowed summary judgment in favor of Slavin and entered a declaration and order that Metropolitan had a duty to defend and indemnify Santos on any claim or civil action for personal injuries brought by Slavin in connection with the incident. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). Superior Court Rule 9A(b)(5). The judge further ruled that Metropolitan was obligated to provide PIP benefits to Slavin for the injuries she sustained in the incident. Metropolitan timely filed its notice of appeal and now claims that the judge committed an error of law in determining that the incident was covered under the policy.
Santos used a hydraulic lift permanently maintained at the wharf to load the totes into the truckbed.
B. Standard of review. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Miller v. Mooney, 431 Mass. 57, 60 (2000), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Mass.R.Civ.P. 56(c). “The interpretation of an insurance contract is a question of law for the court. . . . Likewise, the application of policy language to known facts presents a question of law for the court.” Kelleher v. American Mut. Ins. Co., 32 Mass. App. Ct. 501, 503 (1992). See White v. American Cas. Ins. Co., 53 Mass. App. Ct. 66, 68 (2001).
C. Personal injury protection benefits. Part 2 of the policy provides that the insurer will pay compulsory PIP — or “no-fault” — benefits to or for the policy holder, “or any other person, if injured while occupying [the] auto with the [policy holder’s] consent.” The policy defines “occupying” in the
The defendants concede that Slavin was not occupying the automobile at the time of the incident. They nevertheless maintain that she is entitled to PIP benefits based on allegedly ambiguous language in the policy and that we must “ascertain the fair meaning of the language used, as applied to the subject matter.” Bilodeau v. Lumbermens Mut. Cas. Co., 392 Mass. 537, 541 (1984) (citation omitted). The defendants point to the introductory statement regarding PIP benefits that provides, “[w]e will pay the benefits described below to you and other people injured or killed in auto accidents,” and claim that it is inconsistent with language appearing later in Part 2 of the policy that provides, “[w]e will pay PIP benefits to or for you, or any other person, if injured while occupying your auto with your consent” (emphasis in original).
A fair reading of the policy reveals no ambiguity with respect to the occupancy requirement. The subsequent provision clearly contains a conditional clause requiring occupancy, and should be construed according to its plain meaning. Moreover, the defendants cite no Massachusetts case in which the language of a policy with respect to PIP benefits, if ambiguous, has been interpreted so expansively as not to require occupancy.
Given that the language of Part 2 is clear as to the occupancy requirement, the judge erred in granting summary judgment in favor of Slavin and not granting summary judgment for Metropolitan with respect to PIP benefits.
D. Optional bodily injury to others benefits. Part 5 of the policy provides that Metropolitan will pay optional BI benefits
“[wjhile anyone is using a vehicle in the course of any business other than that of selling, servicing, repairing or parking autos. This exclusion does not apply to private passenger autos, pick-up trucks, vans, or similar type vehicles having a gross vehicle weight of 10,000 pounds or less and not used for the delivery or transportation of goods or materials unless such use is incidental to [the policy holder’s] business of installing, maintaining, or repairing furnishings or equipment.”
The judge recognized this exclusion, which on its face excludes Santos’s use of the truck from coverage because it involved the delivery and transportation of goods; however, he reasoned that Metropolitan raised but did not adequately develop the argument that Slavin’s injuries occurred during a business use of the insured vehicle and therefore did not reach or address the exclusion.
Metropolitan argues that since the parties stipulated to facts that establish that the pick-up truck was being used for the “delivery and transportation of goods or materials” — in this case fish stored in plastic totes for commercial sale — it is absolved from any duty to pay optional BI benefits under the express provisions of the policy.
Given the explicit business use exception in Part 5 of the policy, the defendants’ stipulated use of the pick-up truck for loading and transporting fish in Santos’s business as a fisherman, and Santos’s concession in his deposition that “[a]t the time of the incident, [he was] using the truck in connection with [his] work,” Slavin’s motion for summary judgment with respect
E. Compulsory bodily injury to others benefits. Unlike the PIP benefits section, the compulsory BI section of the policy has no “occupancy” requirement. Also unlike the optional BI benefits section, the compulsory BI section has no business use exclusion. As a result, for the purposes of determining coverage for compulsory BI benefits, we need consider only whether a covered accident has occurred.
An accident is defined in the “Definitions” section of the policy as an “unexpected, unintended event that causes bodily injury or property damage arising out of the ownership, maintenance or use of an auto.” The trial judge properly found that “[tjhere is no dispute in the record that Slavin being hit with the fish tote on May 17, 1999 was unexpected and unintended or that such an occurrence caused her bodily injury.” The judge also correctly found that because “Slavin does not own the vehicle and was not in the process of maintaining it when the accident occurred,” the issue was whether the injuries arose out of the “use” of the vehicle. The judge concluded that the injury arose out of the loading of the vehicle and was therefore covered by the policy.
“The expression ‘arising out of’ indicates a wider range of causation than the concept of proximate causation in tort law . . . . However, the expression does not refer to all circumstances in which the injury would not have occurred ‘but for’ the involvement of a motor vehicle.” Ruggerio Ambulance Serv., Inc. v. National Grange Mut. Ins. Co., 430 Mass. 794, 797-798 (2000), quoting from Rischitelli v. Safety Ins. Co., 423 Mass. 703, 704 (1996) (insurer had no duty to indemnify company whose ambulance was involved in accident while responding to
“Use” for automobile insurance purposes “is not confined to motion on a highway, but extends to any activity in utilizing the insured vehicle in the manner intended or contemplated by the insured.” White v. American Cas. Ins. Co., 53 Mass. App. Ct. at 68, quoting from 8 Couch, Insurance § 119:37 (3d ed. 1997). The use must not be “too casual and too remote from the operation of the” car, however. Travelers Ins. Co. v. Safeguard Ins. Co., 346 Mass. 622, 624 (1964) (accident not covered because delivery boy’s use of vehicle too remote and casual in case where injury resulted when he slammed insured’s hand in door after loading insured’s purchases into car). Rosebrooks v. National Gen. Ins. Co., 13 Mass. App. Ct. at 1050 (accident did not arise out of use of car when plaintiff slipped and fell on ice as she put her right hand on her car two or three feet from door handle).
“In numerous cases [the Supreme Judicial Court] has said that loading and unloading a motor vehicle is a use or operation
Metropolitan argues that loading and unloading is only a covered use under a business automobile insurance policy that expressly includes loading and unloading as a use. Although some of the loading and unloading cases do involve such commercial policies,
Metropolitan also suggests that the loading of Santos’s catch into his pick-up truck was not “proper,” given his decision not to purchase a commercial automobile insurance policy, and that therefore the injury to Slavin is not covered. The standard Massachusetts Automobile Insurance policy purchased by Santos, however, contains no express business exclusion, at least in regard to the compulsory bodily injury section. The absence of the business exclusion here is conspicuous given its presence elsewhere in the policy.
In determining whether a loading such as the one here is covered under the compulsory BI section of a personal automobile insurance policy, there are “no bright line” rules to apply, and we must instead closely examine the particular facts. White v. American Cas. Ins. Co., 53 Mass. App. Ct. at 70. In this case, the pick-up truck was driven to the dock for the purpose of receiving and transporting Santos’s catch. It was backed up to the hydraulic lift provided by a third party for the use of fishermen for loading and unloading their catch. The truckbed was the intended receptacle for the fish totes and the
Given the wide range of causation encompassed by the concept of an “arising-out-of” injury, we conclude that the causal connection between the injury and the use of the automobile, being “reasonably apparent,” is sufficient, and that Slavin is covered by the compulsory bodily injury to others section of the insurance policy. Ruggerio Ambulance Serv., Inc. v. National Grange Mut. Ins. Co., 430 Mass. at 798. We also do not consider the use of the pick-up, as described above, to be “too casual” or “too remote.” Contrast Travelers Ins. Co. v. Safeguard Ins. Co., 346 Mass. at 624; Rosebrooks v. National Gen. Ins. Co., 13 Mass. App. Ct. at 1050.
F. Conclusion. We reverse so much of the judgment that orders Metropolitan to pay PIP benefits to Slavin, and the judgment is to be amended to declare that Slavin is not entitled to PIP benefits. We also reverse so much of the judgment that pertains to the claim for optional bodily injury to others benefits, and order that the judgment be amended to declare that Metropolitan has no duty to indemnify Santos for Slavin’s injuries under the optional bodily injury to others coverage. We affirm the judgment to the extent that it declares that Metropolitan has a duty to defend and indemnify Santos under the compulsory bodily injury coverage of the policy.
So ordered.
The substantive language of the policy is mandated by both G. L. c. 90, § 34A, and G. L. c. 175, § 113A(4).
Under the policy, Slavin was listed as an additional named insured; Santos and Slavin resided together as well.
The hydraulic lift was one of two owned by the Reliable Fish Company, which permits the fishermen to use it as needed.
The relevant case law in Massachusetts with respect to “occupancy” has “invariably required some physical contact with the vehicle, or at a minimum, the performance of an act directly related to the vehicle, such as the changing of a tire.” Kelleher v. American Mut. Ins. Co., 32 Mass. App. Ct. at 503 (claimant struck by another vehicle when he was crossing street after having parked and locked insured vehicle he was operating was not “occupying” it within plain meaning of term and therefore could not recover); Rosebrooks v. National Gen. Ins. Co., 13 Mass. App. Ct. 1049, 1050 (1982) (woman who slipped on ice while approaching insured vehicle and who used it to steady herself was not “occupying” it “in any real sense”).
The optional BI benefits to be paid by Metropolitan “are the amounts the injured person is entitled to collect for bodily injury through a court judgment or settlement” against the insured tortfeasor, subject to the policy limits for this part. The insured may select the policy limits, but they cannot be less than the $20,000 mandated compulsory coverage.
This effectively resulted in a declaration that Metropolitan had a duty to defend and, if Santos were found liable to Slavin, indemnify, on the claim for optional BI benefits.
“The damages [Metropolitan] will pay [for compulsory bodily injury to others] are the amounts the injured person is entitled to collect for bodily injury through a court judgment or settlement.” The policy limits recovery to any one person involved in one accident to $20,000.
The distinctions drawn in this area are not always obvious. Compare Sabatinelli v. Travelers Ins. Co., 369 Mass. 674, 676-677 (1976) (injury did not arise out of use of car where plaintiff shot by insured person sitting in car with engine running); and Rischitelli v. Safety Ins. Co., 423 Mass. at 704 (injury did not arise out of use of automobile when injury resulted from assault and battery following automobile accident), with Blair v. Boston Elevated Ry. Co., 310 Mass. 1 (1941) (where plaintiff slipped on saliva on step of stopped bus, there was sufficient causal connection between injury and operation of bus to satisfy “arising out of operation of motor vehicle” requirement in statute defining-exclusive District Court jurisdiction); Roe v. Lawn, 418 Mass. 66, 70 (1994) (bus driver’s sexual assault on school bus passenger arose out of use of bus); Assetta v. Safety Ins. Co., 43 Mass. App. Ct. 317, 319 (1997) (sufficient causal connection between injuries and automobile use where plaintiff hit by bottle thrown by driver of accelerating vehicle); White v. American Cas. Ins. Co., 53 Mass. App. Ct. at 69-72 (summary judgment for insurance company reversed in case in which injury arose when driver who blew his horn to announce his arrival was immediately bitten by dog belonging to person he was picking up).
See Cook v. Crowell, 273 Mass. 356, 358 (1930) (unloading clams from vehicle “in the ordinary course of its operation for soliciting trade or in calling for and delivering merchandise” was operation of vehicle under Massachusetts law); Diggins v. Theroux, 314 Mass. 735, 736-737 (1943) (statute providing District Court with exclusive jurisdiction over actions “arising out of the operation of a motor vehicle” satisfied when plaintiff was injured while assisting with loading of show case into truck transporting merchandise from shop); Nichols & Co. v. Travelers Ins. Co., 343 Mass. 494, 497 (1962) (finding insurer liable for injuries sustained by pedestrian when she was struck by bale of cashmere wool being unloaded from insured truck). See also Travelers Ins. Co. v. Aetna Life & Cas. Co., 410 Mass. 1002 (1991) (insurer liable for injuries to woman under automobile insurance policy where insured’s employees dropped woman while in process of “loading” her and her wheelchair into van).
See, e.g., Nichols & Co. v. Travelers Ins. Co., 343 Mass. 494 (1962); Travelers Ins. Co. v. Aetna Life & Cas. Co., 410 Mass. 1002 (1991).
The business exclusion is present in Part 4 of the compulsory insurance section related to property damage, and, as stated earlier, in the optional BI section.
As provided by G. L. c. 175, § 113A(5), “no statement made by the insured or on his behalf ... in securing the policy . . . and no act or default of the insured, either prior or subsequent to the issue of the policy, shall operate to defeat or avoid the policy. ...” The policy in this case stated in relation to compulsory BI that the insurer “must pay . . . claims even if false statements were made when applying for this policy.” See Espinal v. Liberty Mut. Ins. Co., 47 Mass. App. Ct. 593, 597 (1999).