DiRaimo v. DiRaimo, 75-101-A

• Decision Date: 23 March 1977
• Docket Number: No. 75-101-A,75-101-A
• Citation: 370 A.2d 1284,117 R.I. 703
• Parties: Gustavo DiRAIMO v. Anthony DiRAIMO et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1284

370 A.2d 1284

117 R.I. 703

Gustavo DiRAIMO v. Anthony DiRAIMO et al.

No. 75-101-Appeal.

Supreme Court of Rhode Island.

March 23, 1977.

[117 R.I. 709] Gunning, LaFazia & Gnys, Inc., Raymond A. LaFazia, Providence, for plaintiff.

Higgins & Slattery, Eugene V. Higgins, Providence, for Great American Ins. Co.

Keenan, Rice, Dolan, Reardon & Kiernan, Leonard A. Kiernan, Jr., James A. Currier, Providence, for National Grange Mutual Ins. Co.

OPINION

PAOLINO, Justice.

This case is before us on the plaintiff's appeal from a declaratory judgment entered in the defendants' favor. The plaintiff had filed a complaint for declaratory judgment in which he claimed injuries incurred by him were covered under certain insurance policies issued by two of the defendants. ¹ The case was heard before a justice of the Superior Court sitting without a jury. He found that the plaintiff's injuries were not covered in the policies.

The plaintiff DiRaimo is the son of defendant Anthony DiRaimo. The senior DiRaimo is the owner of Thornton Liquor Mart, Inc. (hereinafter referred to as Thornton), which is a Rhode Island corporation, also a defendant in this case.

On February 15, 1972, plaintiff was helping his father start the latter's pickup truck in the parking lot of Thornton. The plaintiff had opened the hood of the truck and was trying to adjust the battery cable. At plaintiff's request, and not knowing the truck was in gear, defendant DiRaimo turned the ignition key. This caused the truck to lurch forward and pin plaintiff to the wall of the liquor store. The resulting injuries incurred by plaintiff are the subject of the instant controversy.

The defendant National Grange Mutual Insurance Company (hereinafter National Grange) has issued to defendant DiRaimo a motor vehicle insurance policy for the vehicle involved in the mishap, and another defendant, Great American Insurance Company (hereinafter referred to as Great American), had issued a Business Protector Policy to the corporate defendant Thornton.

A complaint was filed seeking a declaratory judgment that National Grange and Great American were bound to defend defendants DiRaimo and Thornton in accordance with the aforementioned insurance policies and to satisfy any judgment in the action brought against them.

The evidence in this case discloses that defendant DiRaimo is sole owner, president and treasurer of Thornton; that his usual employment is as a carpenter for The Hope Building Company, Inc.; and that his wife, Carolyn, acting in her capacity as secretary and vice president of the liquor business, ran that business on a daily basis and received $125 per week for her services. The defendant DiRaimo would work at the store evenings. Three weeks prior to the incident involved in this case, defendant DiRaimo had been 'laid-off' from his job with The Hope Building Company, Inc., and began to spend his mornings working at Thornton with his wife.

From February 1971 through October 1971, plaintiff DiRaimo helped out at Thornton between 9:30 a.m. and 2 p.m. almost every day. When otherwise unemployed, plaintiff would again assist at Thornton up to 6 or 7 hours a day. During the week prior to the mishap, plaintiff put in between 20 and 30 hours at Thornton. His duties there included making deliveries, stocking and dusting shelves, as well as conducting the entire operation of the store when his mother was not present. The plaintiff was not on the payroll of Thornton but was given $20 to $30 a week spending money by his father. Both father and son testified that when plaintiff obtained outside work this allowance would cease.

With respect to National Grange's automobile liability policy the pertinent exclusion provision is as follows:

'This policy does not apply:

'(d) under coverage A, to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law, or (2) other employment by the insured.'

With respect to Great American's Business Protector Policy the pertinent exclusion provisions are as follows:

'This policy does not apply:

'(c) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured, but this exclusion does not apply (1) to any such injury arising out of and in the course of domestic employment by the insured unless benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law, or (2) to liability assumed by the insured under a written contract other than an agreement between the insured and any employee or his representative;

'(d) under Coverages B and D to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of (1) any automobile or aircraft owned or operated by or rented or loaned to the named insured, or (2) any other automobile or aircraft operated by any person in the course of his employment by the named insured; but this exclusion does not apply to the parking of an automobile on premises owned by, rented to or controlled by the named insured or the ways immediately adjoining, if such automobile is not owned by or rented or loaned to the named insured.'

In his decision, the trial justice stated:

'It is apparent from the provisions of both policies quoted above that said policies do not afford coverage to Thornton Liquor Mart as an 'insured' for liability arising out of the occurrence of February 15, 1972 if Gustavo DiRaimo was an employee of Thornton Liquor Mart, Inc. and his injury arose out of and in the course of his employment. The crucial issue, therefore, is whether the plaintiff Gustavo DiRaimo was acting as an employee...