Bilodeau v. Lumbermens Mut. Cas. Co.

Decision Date17 July 1984
Parties, 46 A.L.R.4th 725 Robert BILODEAU v. LUMBERMENS MUTUAL CASUALTY COMPANY (and a companion case 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
1

Arthur F. Licata, Boston, for Robert Bilodeau.

Stephen J. Paris, Boston (John J. Davis, Boston, with him) for Lumbermens Mut. Cas. Co.

Robert J. Carnevale, Lowell, for Stanley J. Jarzembowski and others.

Thomas D. Dolan, Lynn, for Royal Ins. Co. of America.

Before HENNESSEY, C.J., and WILKINS, ABRAMS and LYNCH, JJ.

ABRAMS, Justice.

The issue presented by the two cases we review is whether, under a standard Massachusetts automobile insurance policy providing "per person" coverage for bodily injury as well as a higher "per accident" liability limit, an insurer that has exhausted its "per person" liability to a person sustaining bodily injury in an automobile accident is obligated to make additional payments within the "per accident" limit for loss of consortium claims by the victim's spouse or children. We conclude that under the current wording of the policy a loss of consortium claimant is a separate "person" entitled to an independent "per person" recovery within the "per accident" limit.

The facts in both cases are undisputed. Bilodeau v. Lumbermens Mutual Casualty Company involves a 1977 standard policy issued by the insurer (Lumbermens) to Richard DeFanti, the owner of an automobile that collided with a vehicle operated by Robert Bilodeau, injuring his wife, Mina Bilodeau. DeFanti's policy provided optional coverage for bodily injury to others in the amount of $100,000 "per person" and $300,000 "per accident." The Bilodeaus commenced an action in the Superior Court in which Mina Bilodeau sued to recover for her physical and emotional injuries, and Robert Bilodeau sought compensation for his loss of consortium. Mina Bilodeau's claim was settled by Lumbermens' payment to her of $100,000 under DeFanti's policy. Lumbermens also agreed with Robert Bilodeau to liquidate his claim at $42,500, and to resolve the question of his entitlement to the liquidated amount under the policy through an action for declaratory relief. In compliance with the agreement, Bilodeau brought an action for declaratory relief in the Superior Court. Pursuant to G.L. c. 231, § 111, the judge reported the question of Lumbermens' liability to the Appeals Court without decision. We granted Bilodeau's application for direct appellate review.

The second case, Royal Insurance Company of America v. Jarzembowski & others, arises from a collision in 1981 between an automobile operated by Jarzembowski and a vehicle driven by Catherine Tsoukalas, the insured. The Jarzembowski family filed a currently pending suit in the Superior Court against the insured, seeking compensation for physical injuries sustained by Jarzembowski and for his wife's loss of consortium and his children's loss of parental companionship and society (hereinafter, consortium). After the Jarzembowskis rejected the offer of the insurer (Royal) to pay $10,000, the compulsory "per person" coverage under the insured's 1981 policy, in full settlement of all the claims, including those of the wife and children, Royal initiated an action for a declaratory judgment that its liability under the policy is limited to $10,000 rather than the $20,000 "per accident" compulsory coverage for bodily injury to others. A judge of the Superior Court entered summary judgment in Royal's favor, and the Jarzembowskis appealed to the Appeals Court. We transferred the case to this court on our own motion.

The insurers in both cases recognize that a spouse's or a child's claim for loss of consortium constitutes a cause of action distinct and independent from the cause of action of a person seeking compensation for physical injury. Feltch v. General Rental Co., 383 Mass. 603, 607-608, 421 N.E.2d 67 (1981). The insurers do not argue that claims for loss of consortium arising from physical injury to a person injured by an insured are excluded under the standard automobile insurance policy. Instead, the insurers assert that under the terms of the policies, the "per person" limit is applicable to all claims, including those of a spouse or child for loss of consortium, flowing from bodily injury to one person. In essence, the insurers argue that "per person," as the term is used in the standard policy, 2 means "per bodily-injured person." We disagree.

We begin our analysis, as we must, with the language of the policy, which parallels language in G.L. c. 90, § 34A, setting forth statutory requirements for compulsory and optional coverage. Part 1 of the policy, providing compulsory insurance for "Bodily Injury to Others," reads in pertinent part: 3

"Under this Part, we will pay damages to people injured or killed by your auto in Massachusetts accidents. The damages we will pay are the amounts the injured person is entitled to collect for bodily injury through a court judgment or settlement.... The most we will pay for injuries to any one person as a result of any one accident is [$10,000]. The most we will pay for injuries to two or more people as a result of any one accident is a total of [$20,000]." 4

Part 5 of the policy, entitled "Optional Bodily Injury to Others," reads in pertinent part:

"Under this Part, we will pay damages to people injured or killed in accidents if you or a household member is legally responsible for the accident.... The damages we will pay are the amounts the injured person is entitled to collect for bodily injury through a court judgment or settlement.

"This Part is similar to Compulsory Bodily Injury To Others (Part 1). Like the Compulsory Part, this Part pays for accidents involving your auto in Massachusetts....

....

"The most we will pay for injury to any one person as a result of any one accident is shown on the Coverage Selections page. The most we will pay for injuries to two or more people as a result of any one accident is also shown on the Coverage Selections page."

As we have indicated, the insured under the Royal policy did not pay for coverage beyond the compulsory minimum, whereas the insured under the Lumbermens policy paid for optional $100,000/$300,000 coverage.

It is clear that a prerequisite to recovery under either part 1 or part 5 is the occurrence of a "bodily injury" to a person involved in an accident with the insured. The ambiguity is whether the word "person" in the sentence in both parts, limiting the insurer's liability for injuries "to any one person as a result of any one accident," refers to the person who has sustained the bodily injury or to the person who seeks recovery as a result of the bodily injury. Put another way, the question is whether the "injured" person to which the "per person" limit applies refers to the bodily-injured person or whether it also refers to the loss of consortium claimant.

Because the language of the standard policy is prescribed by statute and controlled by the Division of Insurance rather than the individual insurer, the rule of construction resolving ambiguities in a policy against the insurer is inapplicable. MacBey v. Hartford Accident & Indem. Co., 292 Mass. 105, 108, 197 N.E. 516 (1935). Cormier v. Hudson, 284 Mass. 231, 234, 187 N.E. 625 (1933). See Charles Dowd Box Co. v. Fireman's Fund Ins. Co., 351 Mass. 113, 119-120, 218 N.E.2d 64 (1966). Instead, we must ascertain "the fair meaning of the language used, as applied to the subject matter." Save-Mor Supermarkets, Inc. v. Skelly Detective Serv., Inc., 359 Mass. 221, 226, 268 N.E.2d 666 (1971), quoting Oakes v. Manufacturers' Fire & Marine Ins. Co., 131 Mass. 164, 165 (1881).

Both policies state that "the damages we will pay are the amounts the injured person is entitled to collect for bodily injury through a court judgment or settlement." Although loss of consortium is not a "bodily injury," neither insurer contends that the policy precludes any recovery for loss of consortium. Lumbermens asserts that the phrase "for bodily injury" includes all damages flowing from a bodily injury, and at oral argument explicitly conceded that loss of consortium claims are covered by the policy. At oral argument, counsel for Royal adopted Lumbermens' argument. Further, it is apparent that Royal, which agrees that the policy does not exclude loss of consortium claims within the "per person" limit applicable to the bodily injured person, 5 has adopted a similar interpretation of the "for bodily injury" policy language. See Lumbermens' Mut. Casualty Co. v. Yeroyan, 90 N.H. 145, 146, 5 A.2d 726 (1939).

Proceeding from the premise that damages "for bodily injury" include damages for loss of consortium, 6 it follows ineluctably that a loss of consortium claimant is an "injured person" under the policy. When the reference to "amounts the injured person is entitled to collect for bodily injury" is combined with the observation that it is the spouse or the child of the bodily-injured person, rather than the bodily-injured person, who is "entitled" to collect for loss of consortium, see Feltch v. General Rental Co., 383 Mass. 603, 608, 421 N.E.2d 67 (1981); Diaz v. Eli Lilly & Co., 364 Mass. 153, 167-168, 302 N.E.2d 555 (1973), it is clear that the phrase "injured person" includes a loss of consortium claimant. It follows that, for purposes of applying the limitation of liability "for injuries to any one person as a result of any one accident," the loss of consortium claimant must be considered a separate "person" from the bodily-injured "person." A contrary interpretation would require us to attribute different meanings to the same words in the same paragraph, a task we eschew. Cf. Plymouth County Nuclear Information Comm., Inc. v. Energy Facilities Siting Council, 374 Mass. 236, 240, 372 N.E.2d 229 (1978). Thus, we agree with the claimants in these cases that a spouse or child bringing an independent claim for a legally...

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