56 Mass. App. Ct. 190 | Mass. App. Ct. | 2002
Markel Insurance Company (Markel) is the commercial general liability insurer for The Society of Christian Activities, a nonprofit corporation doing business as Camp Good News (the Society). We address the scope of Markel’s obligation to defend an employee of the Society, Faith Willard, under a general liability policy containing an automobile
The Society is the named insured on the Markel commercial general liability policy, whereas Willard is an insured under the policy in her capacity as an employee of the camp; she is also an insured as executive officer and director of the corporation.
In Mamell, the parents of Michael Mamell, who owned and insured his own automobile, were sued for negligent supervision of a party held in their home. Michael, who was emancipated
Willard argues that because she did not own or operate the
The claims against Willard involve actions falling within the scope of Willard’s employment for which the Society is vicariously hable. Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986). The Society purchased (from Arbella) a Massachusetts commercial automobile insurance policy that insured Willard for the alleged negligent acts.
The judgment is vacated and a new judgment is to enter declaring that Markel Insurance Company is not obligated to defend or indemnify Willard in connection with the underlying claims against her.
So ordered.
The Society has not appealed the entry of summary judgment declaring that, due to the motor vehicle exclusion, Markel had no duty to defend or indemnify the Society.
The underlying claims arose from a one-car roll-over accident in which a fifteen year old camper, Stephen Home, was seriously injured. The car, owned by the Society, was operated by a camp counsellor, Mark Inchley. The settlement required the release of all claims against the plaintiffs and paid $635,000 to the injured camper. Arbella paid its policy limits, $500,000, and the Society paid the remaining $135,000. Arbella is not a party to this action.
Because we agree with Markel that the policy excludes coverage for the underlying claims, we need not reach its other claims.
The Markel policy states in pertinent part:
“SECTION II - WHO IS AN INSURED
“1. If you are designated in the Declarations as:
“c. An organization other than a partnership or joint venture, you are an insured. Your ‘executive officers’ and directors are insureds, but only with respect to their duties as your officers or directors. . . .
“2. Each of the following is also an insured:
*192 “a. Your ‘employees’, other than your ‘executive officers’, but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business.”
No complaint was ever filed. During settlement negotiations, the injured camper’s counsel forwarded a copy of a proposed complaint to counsel for the camp. The proposed complaint was forwarded to Markel. This complaint alleges, inter alia:
“16. The defendant, Faith Willard, was negligent and careless in that:
“a. she selected the defendant, Mark Inchley, to operate a motor vehicle when she knew or should have known that Mark Inchley was not licensed to drive;
“b. she scheduled meetings for the camp’s agents, servants and/or employees when she knew or should have known that said agents, servants and/or employees would be arising early in the morning to prepare for the trip to Maine;
“c. she failed to supervise the camp’s agents, servants and/or employees to ensure that they slept a sufficient number of hours before transporting participants at the summer camp on an excursion to Maine.”
Alioto v. Marnell, 402 Mass. 36, 39 (1988).
The court noted that under its construction of the policy “the motor vehicle exclusion prevents the homeowners’ policy from providing additional insur-
The policy provides in pertinent part:
“1. WHO IS AN INSURED
“The following are ‘insureds’:
“a. You for any covered ‘auto’.
“b. Anyone else while using with your permission a covered ‘auto’ you own, hire or borrow.
“c. Anyone liable for the conduct of an ‘insured’ described above but only to the extent of that liability.”