Improved Machinery, Inc. v. Merchants Mut. Ins. Co.

• Decision Date: 30 June 1965
• Citation: 208 N.E.2d 796,349 Mass. 461
• Parties: IMPROVED MACHINERY, INC., et al. v. MERCHANTS MUTUAL INSURANCE CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 796

208 N.E.2d 796

349 Mass. 461

IMPROVED MACHINERY, INC., et al. v. MERCHANTS MUTUAL INSURANCE CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 8, 1965.

Decided June 30, 1965.

John H. Fletcher Calver, Boston (John F. Finnerty, Boston, with him), for plaintiffs.

Edward F. Flynn and Edward Nappan, Boston, for Merchants Mut. Ins. Co.

Before WILKINS, C. J., and WHITTEMORE, KIRK, SPIEGEL and REARDON, JJ.

REARDON, Justice.

This is a bill for declaratory relief brought by Improved Machinery, Inc. (Improved), and The Aetna Casualty and Surety Company (Aetna) against Merchants Mutual Insurance Co. (Merchants) and The Home National Bank of Brockton. The case has been reported to us by a judge of the Superior Court without decision.

We summarize the statement of agreed facts. Aetna issued a so called general or comprehensive liability policy to Improved. This was in effect on July 9, 1962, as was a motor vehicle liability policy issued to Improved by Merchants. In June, 1962, Bourget Company in Brockton purchased from Improved an injection molding machine which was installed at the Bourget plant. The machine did not operate properly, and Improved decided to replace a component of the machine called the press assembly. Kemp Transportation Co. (Kemp) was hired by Bourget to unload the new press assembly, which weighed about 3,500 pounds, and to loan on Improved's truck the old press assembly. Kemp supplied a forklift and an operator to perform the unloading and loading.

A part of the old press assembly called the clamp platten had to be dismantled and various other operations performed before the defective part of the machine could be loaded by the forklift operator. This was done during the afternoon of July 9, 1962. At about 5 P.M. the new press assembly was delivered to Bourget by means of Improved's truck driven by its employee. After the arrival of Improved's truck no employee of Improved had anything to do with the machinery. The new press assembly was removed from the truck with great difficulty by the forklift operator, who thereafter began to load the clamp platten. During the lattr process the weight of the clamp platten caused the forklift to sway and then to tip over. The forklift struck Charles Bourget resulting in injuries and death.

Home National Bank, executor under the will of Charles Bourget, instituted suit against Improved and Kemp. This action is presently awaiting trial. Merchants has been requested by Aetna to take over the defence in said suit but has refused to do so.

1. We consider first whether the court has jurisdiction to entertain a proceeding for declaratory relief between insurers where the issue of the liability of the insured has not yet been determined. Section 9 of G.L. c. 231A provides that the purpose of the chapter is 'to remove, and to afford relief from, uncertainty and insecurity with respect to rights, duties, status and other legal relations, and it is to be liberally construed and administered.' We think that here an 'actual controversy' (see c. 231A, § 1) has arisen. The report reveals 'a real dispute caused by the assertion by one party of a legal relation, status or right in which * * * [it] has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation.' School Comm. of Cambridge v. Superintendent of Schs. of Cambridge, 320 Mass. 516, 518, 70 N.E.2d 298, 300. We hold, therefore, that c. 231A is properly invoked in this case notwithstanding the fact that liability of the insured has not been...