372 Mass. 86 | Mass. | 1977
The defendant Donald E. Blakely, Jr. (Blakely), was struck and injured by an uninsured (hit- and-run) motor vehicle in March, 1973, while riding in a Plymouth automobile owned by his father and insured by Royal Indemnity Company (Royal). At that time Blakely
We agree with Royal’s assertion that the Blakelys are not entitled to a decision on this newly raised issue. It seems clear that the legality of the purported policy exclusion was not presented below. The Blakelys’ pleadings do not indicate that they were contending that the policy exclusion must be disregarded as a matter of public policy.
Section 113L of G. L. c. 175, applicable to the 1973 standard motor vehicle policies issued to the Blakelys (see St. 1968, c. 643, § 5), required that every such policy must provide “coverage in amounts or limits prescribed for bodily injury or death for a liability policy under this chapter, under provisions approved by the insurance com
The Blakelys rely on our decision in Johnson v. Travelers Indem. Co., 359 Mass. 525 (1971), which, under
Because of the peculiarities of the Massachusetts system of motor vehicle insurance, decisions in other jurisdictions often are not apt to furnish meaningful guidance. The view we take has been adopted elsewhere under a similar statute. Nationwide Mut. Ins. Co. v. Ealy, 221 Pa. Super. Ct. 138, 140-141 (1972). Cf. Murray v. Remuck, 108 R.I. 179, 184-185 (1971). Cases relied on by the Blakelys where no uninsured motorist coverage was available under a policy covering the vehicle of an insured involved in an accident with another uninsured vehicle are not in point.
Judgments affirmed.
The judge was correct in concluding that the arbitration required by the policy related to “questions concerning the insured’s rights against the owner and operator of the uninsured motor vehicle.” Aetna Cas. & Sur. Co. v. Poirier, 371 Mass. 257, 260 (1976). The question of the insurer’s liability under the policy, apart from the insured’s right against the owner and operator of the uninsured vehicle, was for the judge, and the arbitrator’s award purporting to deal with such a question was in excess of his authority and properly vacated. G. L. c. 251, § 12 (a) (3).
This is a consolidated appeal from judgments in two cases. One case concerns a motion to vacate the arbitrator’s award which awarded coverage under all three policies. The other case is a complaint for declaratory judgment brought by Royal for an interpretation of the scope of its liability. We transferred the Blakelys’ appeals here on our own motion.
Royal argues that it would be prejudiced if the question were considered here now because it had no opportunity to prnrlnce-aszirf price in support of the legality of the policy exclusions. It argues_that “the background of the legislative history of G. L. c. 175, § 113L and the system of uninsured motorist insurance in Massachusetts as approved by the commissioner of insurance ..would be instructive. Royal does not state explicitly what evidence it might have offered, other than the fact of the Commissioner’s approval of the policy language. However, certainly the administrative treatment of the statutory requirement (G. L. c. 175, § 113L) that standard motor vehicle policies provide uninsured motorist coverage might well be of assistance in construing an ambiguous statute. Cf. Aetna Cas. & Sur. Co. v. Poirier, 371 Mass. 257, 261-262 (1976). We often have been guided by the consistent interpretation of an ambiguous statute made by an administrative official charged with implementation of that statute. Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 516 (1975), and cases cited.
Coverage under uninsured motorist protection is not compelled in all circumstances where a person is injured as the result of the negligence of the operator of an uninsured vehicle. Thus, in Forrest v. Hartford Accident & Indem. Co., 367 Mass. 106, 107-108 (1975), we held that a guest in a negligently operated vehicle having no guest coverage could not collect under that vehicle’s uninsured motorist coverage, although that person might be entitled to recover under the uninsured motorist coverage contained in a policy issued to a member of his or her household (see Whitney v. American Fidelity Co., 350 Mass. 542, 543-544 [1966.]).
The record does not show, as it might if this issue had been litigated below, whether the premium charge for uninsured motorist coverage is the same for each vehicle without regard to the number of vehicles owned in a household. If the premium charge is the same, and if the Blakelys were allowed to recover as they claim, each Blakely vehicle would be entitled to additional uninsured motorist protection without any additional cost. The record also does not show whether the premium charges for uninsured motorist coverage approved by the Commissioner of Insurance were determined on the assumption that the scope of such coverage would be as he prescribed, but such an inference seems warranted.
If a person is operating a motor vehicle having no uninsured motorist coverage and is injured as the result of the negligent operation of another uninsured motor vehicle, the weight of authority in this country seems to be that the injured person may recover under the uninsured motorist coverage of another vehicle owned by a member of that person’s household, even in the face of a policy provision purporting to deny coverage in such a circumstance. See Nygaard v. State Farm Mut. Auto. Ins. Co., 301 Minn. 10, 18-19 (1974), and cases cited. Contra, e.g., Rodriquez v. Maryland Indem. Ins. Co., 24 Ariz. App. 392, 394 (1975), and cases cited. See also A.I. Widiss, A Guide to Uninsured Motorist Coverage § 2.9 (1969 & Supp. 1976).