393 Mass. 37 (1984), Desrosiers v. Royal Ins. Co. of America

Citation:393 Mass. 37, 468 N.E.2d 625
Case Date:September 17, 1984
Court:Supreme Judicial Court of Massachusetts

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393 Mass. 37 (1984)

468 N.E.2d 625

John DESROSIERS et al. 1



Supreme Judicial Court of Massachusetts, Suffolk.

September 17, 1984

Argued April 4, 1984.

[468 N.E.2d 626] Robert A. Curley, Jr., Boston, for defendant.

Susan C. Mormino, Cambridge, for John Desrosiers.


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O'CONNOR, Justice.

This is an appeal from a judgment in the Superior Court declaring that the defendant insurer has a duty to defend and indemnify the plaintiff Desrosiers against liability with respect to certain pending tort actions alleging bodily injuries as a result of Desrosiers' negligent operation of a motor vehicle. We reverse.

The plaintiffs in the underlying tort actions, interveners here, alleged in those actions that they were aboard a motor vehicle that was owned by John M. Condon and was operated negligently by his employee, Desrosiers, with the result that a paving machine being transported by the vehicle shifted and injured them. The motor vehicle referred to in the complaints was a tractor-trailer unit. As alleged in the tort actions, the tractor was owned by Condon and was operated by his employee, Desrosiers. The tractor was insured by Continental [468 N.E.2d 627] Insurance Company and not by the defendant, Royal Insurance Company of America (Royal). The trailer was owned by Essex Bituminous Concrete Corp. (Essex), and was insured by Royal. The tractor was hired by Essex. The plaintiffs in the tort actions were employees of Essex, and they were occupants of the trailer carrying the paving machine that allegedly shifted and injured them. They received workmen's compensation benefits on account of their injuries from the workmen's compensation carrier for Essex.

Several provisions in Royal's policy are relevant to this dispute. One such provision is entitled "Coverage A--Division 1--Bodily Injury Liability--Statutory--The Commonwealth of Massachusetts--(This Coverage is Compulsory)." The provision states: "The company will pay on behalf of the insured, in accordance with the 'Massachusetts Compulsory Automobile Liability Security Act,' Chapter 346 of the Acts of 1925 of the Commonwealth of Massachusetts and all Acts amendatory thereof or supplementary thereto, all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages to others for bodily injury ... sustained by any person or persons during

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the policy period ... and caused by the ownership, operation, maintenance, control or use of the insured motor vehicle upon the ways of the Commonwealth of Massachusetts ...." The policy also provides with respect to division 1 of coverage A that the company will defend any suit against the insured seeking damages payable under the policy. It is further provided that "[w]ith respect to the insurance under division 1 of coverage A, the unqualified word 'insured' includes the named insured and also includes any other person responsible for the operation of the insured motor vehicle with the express or implied consent of the named insured." Essex is the named insured and Desrosiers is a so called "omnibus" insured under Royal's policy. Desrosiers was an omnibus insured because, as the driver of the tractor-trailer unit, he was responsible for the operation of the insured motor vehicle, the trailer, with the consent of Essex. Royal does not contend otherwise.

Although Royal acknowledges that Desrosiers qualifies as an insured with respect to division 1 of coverage A, it has declined to provide a defense or coverage to Desrosiers thereunder on the ground that exclusion (2) provides that the policy does not apply "under division 1 of coverage A, to bodily injury to ... any employee of the insured who is entitled to payments or benefits under the provisions of the Massachusetts Workers' Compensation Act." Royal says that by policy definition the word "insured" includes the named insured and anyone operating the insured vehicle with the named insured's consent. Thus, says Royal, the word "insured" in exclusion (2) includes Essex and Desrosiers, and since Sims, Tirabassi, and DePina were employees of Essex entitled to workmen's compensation benefits, the policy does not apply under division 1 of coverage A and Desrosiers is not entitled to coverage.

Desrosiers' answer to Royal's contention is that the policy provides that "[e]xcept with respect to division 2 [which is not involved here] of coverage A, the insurance applies separately to each insured against whom claim is made or suit is brought." Desrosiers says that by virtue of that severability of interests provision it is as though a separate policy were issued to each of the insured parties naming that party as the one and only insured.

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The word "insured" in exclusion (2), therefore, refers only to the party who qualifies as an insured and is seeking coverage. That would be Desrosiers in this case, and since the injured claimants were not Desrosiers' employees, Desrosiers argues, the exclusion does not apply and...

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