Beattie v. American Auto. Ins. Co.

• Decision Date: 06 February 1959
• Citation: 156 N.E.2d 49,338 Mass. 526
• Parties: Ernest R. BEATTIE v. AMERICAN AUTOMOBILE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 49

156 N.E.2d 49

338 Mass. 526

Ernest R. BEATTIE v. AMERICAN AUTOMOBILE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 6, 1959.

Decided Feb. 6, 1959.

No appearance for plaintiff.

Andrew B. Goodspeed, Boston, for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

This is a bill to reach and apply the obligations of the defendants as inserers to satisfy the unpaid half of the execution held by the plaintiff in the total sum of $3,753.12 on a judgment of $2,792.47 for personal injuries and of $780.65 for property damage. A final decree dismissed the bill as against the defendant American Automobile Insurance Company (hereinafter called American) and ordered the defendant United States Casualty Company (hereinafter called Casualty) to pay to the plaintiff $1,876.56 with interest and costs. Casualty appealed. The facts are stated on the basis of the trial judge's report of material facts. The evidence is not reported.

The plaintiff recovered judgment against one Marnoy for personal injuries and property damage caused by Marnoy's negligence on a public way in Massachusetts. Marnoy, at the time of the accident employed by Morton's Inc., was acting within the scope of his employment in operating a truck owned by Bern's Auto & Truck Renting Co., Inc. (hereinafter called Renting). Throughout the period during which the accident occurred this truck was leased by Renting to 'and regularly used exclusively on the business of Morton's Inc.'

At all pertinent times Casualty had in full effect a policy issued to Renting, providing (a) statutory (compulsory) coverage A; (b) increased bodily injury limits of $25,000 for each person and $50,000 for each accident as coverage B; and (c) property damage liability coverage C of $5,000 for each accident. In addition to statutory provisions Casualty's policy provided: [X] 'With respect to the insurance under coverages B and C the * * * word 'insured' includes the named insured and * * * any other person responsible for the operation of the * * * vehicle with the * * * consent of the named insured. * * * [Y] This policy does not apply: (d) under coverages B, C and D, to liability assumed by the insured under any contract or agreement. * * * [Z] 9. Other insurance. Under coverages A, B and C if the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss.'

American had in full effect a policy issued a Morton's Inc., providing (a) statutory coverage; (b) increased bodily injury liability limits of $100,000 for each person and $300,000 for each accident as coverage B; and (c) property damage liability coverage C of $50,000 for each accident. 'The truck involved in the accident was not a * * * vehicle described * * * except under the classification of commercial automobiles hired.' In addition to statutory provisions American's policy contained substantially (a) the definition of 'insured' under coverages B and C contained in Casualty's policy and quoted above as passage [X], and (b) the provision contained in Casualty's policy with respect to 'other insurance,' quoted above as passage [Z]. It did not contain the words (with respect to liability assumed by the insured by contract) quoted above as passage [Y] but did contain as a proviso to the 'other insurance' clause, quoted as passage [Z], the words set out in the margin. ¹ American's policy also contained a special indorsement entitled 'hired automobiles' ² set out in the margin.

Under a truck rental contract between Renting and Morton's, Inc., in force at the time of the accident Renting agreed 'to carry insurance for public liability, property damage, fire and theft * * * and * * * to assume all liability and save the lessee harmless from claims, liability * * * and cost resulting from accidents * * * other than for wilful collision and other malicious action * * * of the lessee, his agents or servants.'

Casualty voluntarily paid one half of the plaintiff's judgment. Casualty and American each refused the plaintiff's demand for payment of the remaining $1,876.56. The trial judge found that 'the coverage provided by * * * American * * * is excess coverage over and above, and not concurrent with, the coverage of * * * Casualty * * * and that the latter is solely responsible to the plaintiff for the unpaid balance of his judgment.'

1. Marnoy was an unnamed insured under American's policy and also under Casualty's policy with respect to coverages A, B, and C. He was operating the truck 'with the express or implied consent' of his employer, Morton's Inc., and of Renting ³ which had leased the truck for use by Morton's Inc. and its employees. With respect to coverages B and C he came within the definition of 'insured' under passage [X] already quoted and with respect to statutory compulsory coverage A he was within the definition of 'any person responsible for the operation of the insured's motor vehicle with his express or implied consent.' See G.L. c. 90, § 34A (as amended through St.1949, c. 571, § 1); Crompton v. Lumbermens Mut. Cas. Co., 333 Mass. 160, 129 N.E.2d 139.

2. The trial judge's conclusion that 'the coverage * * * of * * * American * * * is excess coverage over and above * * * the coverage of * * * Casualty' is unexplained by him, and we have not had any brief or argument in behalf...