Hanover Ins. Co. v. Locke
| Decision Date | 28 December 1993 |
| Docket Number | No. 92-P-1586,92-P-1586 |
| Citation | 624 N.E.2d 615,35 Mass.App.Ct. 679 |
| Parties | The HANOVER INSURANCE COMPANY v. Stephen LOCKE & others. 1 |
| Court | Appeals Court of Massachusetts |
Daniel E. Kudzma, Norwell, for Donna Martynowski, adm'x.
John D. Boyle, Boston, for plaintiff.
Before ARMSTRONG, DREBEN and IRELAND, JJ.
The insurer sought a declaration that Stephen Locke, who allegedly killed James M. Maloney in a hit and run accident when driving his father's automobile, was not covered by his father's insurance policy. The reason for no coverage, in the view of the insurer, is that both the compulsory and the optional parts of the policy provide coverage only if a person is operating the vehicle with the consent of the vehicle's owner.
A judge of the Superior Court found that Stephen, at the time of the accident, did not have the express or implied consent of either of his parents to drive the car. Under the mistaken assumption that the only issue before him concerned the optional part of the policy, the judge ordered the entry of judgment declaring that the insurer is not obligated to defend Stephen Locke in this action beyond the $10,000 compulsory coverage. The administratrix of Maloney's estate appealed from the denial of optional coverage, and the insurer filed a cross appeal, seeking a declaration that Stephen was also not covered under the compulsory insurance portion of the policy.
1. Compulsory insurance. Contrary to the administratrix's contention, the finding that "Stephen Locke operated the Ford Escort without the express or implied consent of either parent" is supported by the record. There was evidence that not only did the Lockes forbid Stephen to use their cars but, at their request, Stephen was taken off the policy. Stephen had his own car, and, on the night of the accident, he took his father's car without the permission or knowledge of either parent.
The relevant section of Stephen's father's policy provided:
"We will pay only if you or someone else using your auto with your consent is legally responsible for the accident."
There is no ambiguity in this language, and an examination of the record indicates that the insurer did not waive its claim that there was no compulsory coverage. The judgment must be corrected to state that there was no coverage for Stephen on the night of the accident under the compulsory part of the policy.
2. Optional coverage. The relevant language of the policy is as follows:
"Household member" is defined to include "anyone living in your household who is related to you by blood,...." It is undisputed that Stephen was a household member.
The administratrix claims that under the language of the policy a household member is covered even when driving without consent. Otherwise, she claims, the term "household member" is meaningless surplusage. Moreover, citing Commerce Ins. Co. v. Koch, 25 Mass.App.Ct. 383, 387, 522 N.E.2d 979 (1988), she argues that if there is any ambiguity, since this is an optional clause, the provision must be construed against the insurer.
Although there is some redundancy in the provisions concerning optional coverage and the clauses are inartfully drafted, we agree with the judge that the language--"this Part does not pay for the benefit of anyone using an auto without the consent of the owner"--applies to anyone, including household members. 2 Otherwise, the exclusion would be unnecessary, and the comparison with compulsory insurance would be inappropriate. 3 Contrary to the administratrix's claim, the term "household member" in the first sentence is not without meaning, as the clause provides coverage when the household member is driving a car not owned by the insured.
Since both the compulsory and the optional provisions at issue required the consent of the owner, we order that the judgment be modified...
To continue reading
Request your trial
-
Allstate Ins. Co. v. Pruett
...471, review denied 319 Or. 407, 879 P.2d 1285; Cincinnati Ins. Co. v. Plummer, 213 Ga. App. 265, 444 S.E.2d 378; Hanover Ins. Co. v. Locke, 35 Mass.App.Ct. 679, 624 N.E.2d 615; Kelly v. Threshermen's Mut. Ins. Co., 176 Wis.2d 513, 502 N.W.2d 618 [unpublished decision-text at 1993 WL 98770];......
-
Mahoney v. Am. Auto. Ins. Co.
...for the benefit of anyone using an auto with the consent of the owner.” Although not involving a rental car, Hanover Ins. Co. v. Locke, 35 Mass.App.Ct. 679, 624 N.E.2d 615 (1993), leads to the same interpretation of the scope of Part 5 coverage. There, a household member who operated the fa......
-
Hartford Ins Co. of the Midwest v. Halt
...471, review denied 319 Or. 407, 879 P.2d 1285; Cincinnati Ins. Co. v. Plummer, 213 Ga.App. 265, 444 S.E.2d 378; Hanover Ins. Co. v. Locke, 35 Mass.App.Ct. 679, 624 N.E.2d 615; Kelly v. Threshermen's Mut. Ins. Co., 176 Wis.2d 513, 502 N.W.2d 618 [unpublished decision--text at 1993 WL 98770];......
-
Close v. Ebertz
...Exch., 600 So.2d 106 (La.Ct.App.1992); General Accident v. Perry, 75 Md.App. 503, 541 A.2d 1340 (1988); Hanover Ins. Co. v. Locke, 35 Mass.App.Ct. 679, 624 N.E.2d 615 (1993); St. Paul Ins. v. Rutgers Cas. Ins., 232 N.J.Super. 582, 557 A.2d 1052 (A.D.1989); Hartford Ins. Co. of the Midwest v......