Becker v. Commerce Ins. Co.

• Decision Date: 22 August 2011
• Docket Number: 10-P-628
• Parties: JOHN BECKER v. COMMERCE INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

JOHN BECKER v. COMMERCE INSURANCE COMPANY.

10-P-628

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Entered: August 22, 2011

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This appeal involves a car accident in which the plaintiff, John Becker (hereinafter John or the plaintiff), was a passenger in a vehicle which he owned, but which was being driven by his mother, Anna Becker (Anna), when there was a collision with another vehicle. John was severely injured and incurred $68,632.83 in medical expenses.

The following background is summarized from the summary judgment record. At the time of the accident, Anna was married to Bernard Karbowski (Bernard), and lived with her husband as a member of his household. Bernard and Anna were named insureds for the four vehicles listed on the defendant Commerce Insurance Company (Commerce) policy, with Bernard as the principal operator, and Anna as an occasional operator, on all four vehicles. John lived in the same house with Anna and Bernard, but John was not listed as an operator on the Commerce policy. Rather, John owned his own car, the one involved in the accident, which was separately insured by Arbella Insurance Company (Arbella).¹

John filed complaints for his personal injuries against a number of persons and insurers including, as pertinent to this appeal, Anna, Commerce, and Mount Vernon Fire Insurance Company (Mount Vernon). John obtained a judgment against Anna for $420,000, and then, after other proceedings, sought to enforce that judgment against Commerce and Mount Vernon.

The litigation against Mount Vernon proceeded first. Summary judgment entered in favor of Mount Vernon -- dismissing John's claim against that insurer. In a memorandum and order pursuant to our rule 1:28, this court affirmed the denial of coverage and resulting summary judgment for Mount Vernon. See Becker v. Becker, 69 Mass. App. Ct. 1102 (2007) (Becker I).

This litigation and a settlement offer by Commence were placed on hold while the Mount Vernon case was litigated and appealed. Following the affirmance of summary judgement for Mount Vernon in Becker I, John filed the present action against Commerce seeking to recover $100,000 available under the Commerce coverage as partial satisfaction of the $420,000 judgment against Anna because she was an insured member of the household under the Commerce Policy Part 5 Optional Bodily Injury to Others provision.

On cross-motions for summary judgment, relying on the denial of Mount Vernon coverage affirmed in Becker I, a Superior Court judge entered judgment for Commerce on the basis that Anna was not driving a car that would be considered 'your [Anna's] auto' within the Commence policy provisions for Optional Bodily Injury to Others. The 'your auto' limitation was central to the holding in Becker I.²

However, in following the 'your auto' analysis in Becker I, the motion judge did not address the first sentence in the Part 5 Optional Bodily Injury to Others coverage in the Commence policy, which does not have a 'your auto' clause. It is this first sentence in the Part 5 Optional Bodily Injury to Others coverage which is implicated in John's claims against Commence. In contrast, it was the second sentence in the Part 5 Optional Bodily Injury to Others coverage which was implicated in the denial of coverage in Becker I.

The two, different, first and second coverage sentences in the Optional Bodily Injury to Others Coverage state as follows.

'[1] Under [Part 5], we will pay damages to people injured or killed in accidents if you or a household member is legally responsible for the accident. [2] We will also pay damages if someone else using your auto with your consent 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.'

(emphasis added).

The first sentence quoted above is not circumscribed by the 'your auto' clause in the second sentence, and provides Part 5 Optional Bodily Injury to Others for either the primary insured, or a household member of the primary insured who is named as a user of the insured automobiles, if either the primary insured or the household member is 'legally responsible for the accident.' ³ Given the two differing coverage sentences, the 'your auto' clause, which in Becker I was controlling, does not determine the case against Commerce. Thus, summary judgment was not sustainable on the basis that Becker I resolved John's claim against Commence.

We conclude, however, that summary judgment still correctly entered for Commence because of an express exclusion in § 5.2 from any coverage, notwithstanding Anna's driving and legal responsibility for the accident. ⁴ We turn to the effect of the exclusion: Even assuming that there theoretically were coverage under the broader first sentence of the Commerce policy Part 5, Optional Bodily Injury to Others because Anna was driving, and because Anna was a listed 'household member [who] is legally responsible for the accident,' John's claims against Commerce remain barred by the § 5.2 exclusion. Specifically § 5.2 operates to exclude coverage

'[f]or injuries resulting from an accident while a household member, other than your spouse, [here John] is using an auto which you or any household member [John is a household member] owns or uses regularly,

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