Colby v. Metropolitan Property and Cas. Ins. Co.

• Decision Date: 19 July 1995
• Citation: 652 N.E.2d 128,420 Mass. 799
• Parties: John N. COLBY, Jr. v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 128

652 N.E.2d 128

420 Mass. 799

John N. COLBY, Jr. v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued April 3, 1995.

Decided July 19, 1995.

J. Michael Conley, Braintree, for plaintiff.

Alice Olsen Mann, Boston (William P. Rose with her), for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.

O'CONNOR, Justice.

On January 5, 1992, Michael L. Colby was operating his automobile insured by Liberty Mutual Insurance Company when it was involved in a collision with an automobile operated by Angela Colasanti. Michael Colby was killed in the accident. Colasanti was insured by a policy issued by Commerce Insurance Company providing bodily injury liability limits of $25,000 per person and $50,000 per accident. Neither Liberty Mutual Insurance Company nor Commerce Insurance Company is a party to this action. The plaintiff, John N. Colby, Jr., was Michael's father and the named insured in an automobile policy issued by the defendant, Metropolitan Property and Casualty Insurance Company (Metropolitan). The policy provided underinsured motorist coverage with limits of $100,000 per person and $300,000 per accident. Metropolitan rejected the plaintiff's claim for payment, pursuant to his underinsured motorist coverage, of his consortium-like damages due to the loss of his son. See G.L. c. 229, § 2 (1992 ed.).

As a result, the plaintiff brought this action against Metropolitan. The complaint was entitled "Complaint for Declaratory Judgment" and demanded a judgment declaring, among other things, that the "[p]laintiff is entitled to Underinsured Motorist Coverage for his individual claims and damages arising from the death of Michael L. Colby in the accident caused by Angela Colasanti." Although, coincidentally, the plaintiff was the administrator of the estate of his son, Michael, it is clear that he did not bring this action as administrator either on behalf of Michael's estate or pursuant to G.L. c. 229, § 2, but brought it on his own behalf in his individual capacity. As he states in his reply brief, the action "is fundamentally an action in contract for indemnification.... The controversy is ... a contractual issue between a policy holder [John N. Colby, Jr.,] and an insurer." Thus, this case is significantly different from Smart v. Safety Ins. Co., 419 Mass. 144, 643 N.E.2d 435 (1994), which focuses on the rights of the estate of an individual who, like Michael L. Colby, was insured under his own automobile policy and was killed in a collision. As the plaintiff states in his reply brief, "the Smart decision ... simply establish[es] the proposition, with which the plaintiff in this case has no quarrel, that because Michael Colby had his own policy, the claims of Michael Colby and of the Estate of Michael Colby, (as distinguished from the claims of John N. Colby, Jr.), would not be compensable under John N. Colby, Jr.'s policy."

In this case, both parties moved for summary judgment. A judge decided the motions on a stipulation of facts, the standard Massachusetts automobile insurance policy with 1991 Massachusetts mandatory endorsement, and the coverage selections page in Michael Colby's automobile policy. The judge allowed Metropolitan's motion, denied that of the plaintiff, and issued a judgment declaring that "the plaintiff is not entitled to recover underinsured motorist benefits under the [policy] issued to him by the defendant, Metropolitan Property & Casualty Insurance Company, because he did not sustain 'bodily injury' in the accident upon which he bases his claim. It is further ordered and adjudged that the plaintiff is not entitled to recover underinsured motorist benefits under the policy issued to him by the defendant because the plaintiff's decedent had a policy of his own in effect at the time of the accident and he would, therefore, not have been entitled to recover such benefits under the Metropolitan policy had he survived the accident. Accordingly, the defendant's motion for summary judgment is hereby allowed and the plaintiff's cross-motion for summary judgment is denied." The plaintiff appealed, and we allowed his application for direct appellate review. We affirm the judgment entered in the Superior Court insofar as it declares that the plaintiff is not entitled to recover underinsured motorist benefits under the policy issued to him by Metropolitan.

The plaintiff's insurance policy with Metropolitan provides in "Part 12. Bodily Injury Caused by an Underinsured Auto," including the 1991 Massachusetts mandatory endorsement as follows:

"Sometimes an owner or operator of an auto legally responsible for an accident is underinsured. Under this Part, we 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. We will only pay if the injured person is legally entitled to recover from the owner or operator of the underinsured auto. An auto is underinsured when the limits for automobile bodily injury liability insurance covering the owner and operator of the auto are:

"1. Less than the limits shown for this Part on your Coverage Selections Page; and

"2. Not sufficient to pay for the damages sustained by the injured person."

The tortfeasor's (Colasanti's) automobile liability insurance limits of $25,000 per person and $50,000 per accident were less than the $100,000/$300,000 underinsured motorist coverage of the plaintiff's Metropolitan policy, and we shall assume, favorably to the plaintiff, that Colasanti's liability coverage would not be sufficient to pay for the damages sustained by the plaintiff. See G.L. c. 229, § 2, incorporating by reference G.L. c. 229, § 1.

The policy goes on to provide in relevant part the following:

"We will pay damages to or for:

"1. You, while occupying your auto, while occupying an auto you do not own, or if injured as a pedestrian.

"2. Any household member, while occupying your auto, while occupying an auto not owned by you, or if injured as a pedestrian. If there are two or more policies which provide coverage at the same limits, we will only pay our proportionate share. We will not pay damages to or for any household member who has a Massachusetts auto policy of his or her own or who is covered by a Massachusetts auto policy of another household member providing similar coverage with higher limits.

"3. Anyone else while occupying your auto. We will not pay damages to or for anyone else who has a Massachusetts auto policy of his or her own or who is covered by a Massachusetts auto policy of any household member providing similar coverage.

"4. Anyone else for damages he or she is entitled to recover because of injury to a person covered under this Part.

"If you are injured while occupying your auto and you have two or more autos insured with us with different limits, we will only pay up to the limits shown on your Coverage Selections Page for the auto you are occupying when injured.

"If you are injured as a pedestrian or while occupying an auto you do not own and you have two or more Massachusetts auto policies which provide coverage at different limits, the policy with the higher limits will pay. If there are two or more policies which provide coverage at the same limits, we will only pay our proportionate share.

"...

"If only one person sustains bodily injury, we will pay any...