Aetna Cas. and Sur. Co. v. U.S. Fidelity and Guar. Co.

• Decision Date: 01 December 1986
• Docket Number: No. 86-1445,86-1445
• Citation: 806 F.2d 302
• Parties: AETNA CASUALTY AND SURETY COMPANY, Plaintiff, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 302

806 F.2d 302

AETNA CASUALTY AND SURETY COMPANY, Plaintiff, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant, Appellee.

No. 86-1445.

United States Court of Appeals, First Circuit.

Argued Oct. 9, 1986.

Decided Dec. 1, 1986.

John P. Graceffa with whom Gallagher & Gallagher, P.C., Boston, Mass., was on brief for plaintiff, appellant.

D. Alice Olsen with whom Susan C. Mormino, Mark P. Bailey and Morrison, Mahoney & Miller, Boston, Mass., were on brief for defendant, appellee.

Before BOWNES, Circuit Judge, BROWN, ^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

This case presents the question whether an automobile insurance policy covers damages resulting from the rape of child by her school bus driver. We conclude that the rape did not result "from the ownership, maintenance or use of a covered auto" as contemplated by the insurance policy at issue.

Roy Gorton, Jr., an employee of McGregor-Smith Motor Co., raped a handicapped child he was transporting in a McGregor-Smith school bus. The child and her parents sued McGregor-Smith and recovered $600,000. Nancy Gallant, et al. v. Roy Gorton, Jr. and McGregor-Smith, (D. Mass, Civil Action No. 82-2583-Z). The Travelers Insurance Co. ("Travelers") defended McGregor-Smith and paid $300,000, the ceiling on its general liability policy. The Aetna Casualty and Surety Company ("Aetna") paid the remainder under an excess indemnity, or "umbrella," policy. Aetna then sued the United States Fidelity and Guarantee Co. ("Fidelity") for a declaratory judgment that Fidelity is liable for the Gallant settlement under Fidelity's automobile liability policy insuring McGregor-Smith. The district court ruled on summary judgment that Fidelity had neither a duty to defend nor to indemnify McGregor-Smith. We affirm.

The business auto policy under which Fidelity insured McGregor-Smith stated the following:

We will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto.

(Emphasis supplied). This provision is a standard feature in automobile insurance policies. See, e.g., A & G Assoc., Inc. v. Michigan Mutual Ins. Co., 312 N.W.2d 235 (Mich., 1981); Anno: Automobile Liability Insurance, 15 ALR 4th 10 (1982).

Massachusetts' courts, whose law applies in this case, have held that this policy provision requires "a causal connection between the use of the automobile ... and the accident." Lapointe v. Shelby Mutual Ins. Co., 281 N.E.2d 253, 257 (Mass.1972). The district court below interpreted this requirement as follows:

"[U]se" means foreseeable use, or contemplated use, or, as one New York court put it, "the use of an automobile qua automobile."

Gallant v. Gorton, No. 82-2583-Z, slip op. at 4 (D.Mass. April 22, 1986). Automobile insurance spreads the risk of damages from automobile accidents among the insured population. The limitation on liability to damages "resulting from the ownership, maintenance or use of a covered auto" ensures that the risk spread is the risk of automobile accidents, and not all accidents, or more accurately, incidents, to which an automobile can be tied, however remotely.

Aetna claims that the school bus provided Gorton with the opportunity to rape the child; thus, the rape resulted from the use of the bus. But this would prove too much. Automobiles are an indispensable part of many crimes, bank robberies for example, yet it would most certainly be farfetched to say that these crimes result from the use of the automobile. See Sabitinelli v. Travelers Ins. Co., 341 N.E.2d 880 (Mass.1976...