Assetta v. Safety Ins. Co., 96-P-233

• Citation: 43 Mass.App.Ct. 317,682 N.E.2d 931
• Decision Date: 06 August 1997
• Docket Number: No. 96-P-233,96-P-233
• Parties: Phyllis ASSETTA & another 1 v. SAFETY INSURANCE COMPANY.
• Court: Appeals Court of Massachusetts

Page 931

682 N.E.2d 931

43 Mass.App.Ct. 317

Phyllis ASSETTA & another ¹ v. SAFETY INSURANCE COMPANY.

No. 96-P-233.

Appeals Court of Massachusetts,

Middlesex.

Argued June 13, 1997.

Decided Aug. 6, 1997.

Alice Olsen Mann, Boston (Steven E. Sylvester, with her), for defendant.

Marianne C. LeBlanc, Boston, for plaintiffs.

Before BROWN, GREENBERG and FLANNERY, JJ.

BROWN, Justice.

This is an appeal from the entry of summary judgment for the plaintiffs. ² There are no disputed facts.

On or about July 13, 1993, Phyllis Assetta (Phyllis), was walking her dog on the sidewalk in Malden when she was struck in the face by a bottle thrown from a passing vehicle. The driver of the vehicle, Patrick Richardson, threw the bottle out the window as he made a U-turn within five feet of the plaintiff. As a result of the incident, Phyllis sustained severe facial lacerations, trauma and permanent scarring. The vehicle that Richardson was driving at the time of the incident was owned by John T. Verdone and was insured by Commerce Mutual Insurance Company (Commerce).

Following the accident, the plaintiffs settled their claim against Richardson, Verdone and Commerce for $15,000, the limit of the Commerce policy. However, because the settlement amount was insufficient to cover their damages, the plaintiffs subsequently filed an underinsurance claim with the defendant, Safety Insurance Company (Safety). On or about August 8, 1994, Safety rejected the plaintiffs' claim on the ground that their injuries did not arise out of "the ownership, maintenance or use of an automobile" as required by the policy.

On November 4, 1994, the plaintiffs filed this declaratory judgment action in Superior Court seeking a determination as to whether their claim is covered by the Safety policy. Safety filed a motion for summary judgment. A Superior Court judge denied the motion, and, in a subsequent order, entered judgment for the plaintiffs.

"The responsibility of construing the language of an insurance contract is a question of law for the trial judge, and then for the reviewing court." Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234 (1982). In interpreting insurance policies, "we [ ] construe the words of the policy in their usual and ordinary sense," Hakim v. Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 280, 675 N.E.2d 1161 (1997), and, when appropriate, "consider what an objectively reasonable insured, reading the relevant policy language, would expect to be covered." Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 700, 555 N.E.2d 576 (1990).

Safety maintains that the Superior Court judge erred in entering judgment for the plaintiffs because their injuries did not arise from the use of an automobile. Specifically, Safety contends that because the plaintiffs' "injuries did not result from conduct necessary or integral to the use of an automobile; nor can it be said that the bottle which struck [Phyllis] Assetta was at any time, or in any way associated with or peculiar to the motor vehicle," the plaintiffs' claim is not covered by the policy.

The policy, in pertinent part, provides that "[Safety] will pay damages for bodily injury to people injured or killed as a result of certain accidents caused by someone who does not have enough insurance." As defined by the policy, the term "accident" refers to "an unexpected, unintended event that causes bodily injury or property damage arising out of the ownership, maintenance or use of an automobile."

Neither this court, nor the Supreme Judicial Court, has had occasion...