Jefferson Ins. Co. of New York v. City of Holyoke

Decision Date01 April 1987
Citation503 N.E.2d 474,23 Mass.App.Ct. 472
PartiesJEFFERSON INSURANCE COMPANY OF NEW YORK v. CITY OF HOLYOKE.
CourtAppeals Court of Massachusetts

Harold F. Brunault, Asst. City Sol., for defendant.

John H. Goewey, Worcester, for plaintiff.

Before ARMSTRONG, PERRETTA and SMITH, JJ.

SMITH, Judge.

The city of Holyoke appeals from a judgment entered in the Superior Court in favor of Jefferson Insurance Company of New York (Jefferson). 1 The facts are not in dispute.

On or about September 20, 1979, Sandra J. Smigiel was taken into protective custody by members of the Holyoke police department. She committed suicide by hanging herself while still in protective custody. Jefferson had issued an insurance policy to Holyoke insuring the police department and its members against certain risks. The policy carried an exclusionary clause that read as follows:

"This policy does not apply: ... (i) To claims arising from events during which the injured party was in the care, custody or control of any Insured under this policy other than during an overt attempt to escape from care, custody or control; ..."

The policy was in effect at the time of Smigiel's death.

As a result of Smigiel's death, Dolores Miga, the mother of the decedent and administratrix of the estate of Smigiel, brought an action against Holyoke based on negligence. She later amended her complaint to include counts against Holyoke and six police officers on a violation of civil rights theory for "fail[ing] to insure the safe custody and protection of [Smigiel] due to the lack of frequent, diligent, and adequate supervision of [her] in her cell."

After Miga brought her action but before it was tried, Jefferson filed a complaint in the Superior Court seeking declaratory relief as to Holyoke and Miga. The complaint sought a declaration that as a result of the exclusionary clause in the policy: (1) Holyoke and members of its police department were not covered in regard to the events concerning Smigiel that occurred on September 20 and 21, 1979, and (2) Jefferson was not obligated to pay any judgment awarded to Miga, in her capacity as administratrix, as a result of her action brought against Holyoke and certain members of its police department.

After the defendants had filed their answers to its complaint, Jefferson filed a motion for summary judgment. It claimed that there was no genuine issue of any material fact among the parties and that the exclusionary clause in the policy denied coverage to Holyoke and its police officers in the circumstances. A Superior Court judge denied the motion and Jefferson's subsequent motion for reconsideration. The motion judge stated in a memorandum that, in her opinion, the language in the exclusionary clause was ambiguous and that extrinsic evidence showing the circumstances of the making of the contract and the parties' intent should be permitted at the trial of Jefferson's complaint.

Miga recovered judgments against Holyoke and certain police officers after a jury trial in the Superior Court. 2 Trial was then held before a Superior Court judge, sitting without a jury, 3 on Jefferson's complaint. She found that the language in the exclusionary clause was not ambiguous and, therefore, did not need clarification by extrinsic evidence. She ruled that as a result of the exclusionary clause, the insurance policy did not provide coverage for Holyoke or its police officers for liability in regard to Smigiel's death and that Jefferson was not obligated to pay the judgments recovered by Miga in her capacity as administratrix.

1. Ambiguity in insurance contracts. Holyoke contends that the exclusionary clause is ambiguous, either standing alone or read in conjunction with the entire contract. It also claims that the judge should have applied the "doctrine of reasonable expectations" to resolve the dispute.

An ambiguity exists in an insurance contract when the language contained therein is susceptible of more than one meaning. Ober v. National Cas. Co., 318 Mass. 27, 30, 60 N.E.2d 90 (1945). Middlesex Ins. Co. v. American Employers Ins. Co., 9 Mass.App.Ct. 855, 856, 400 N.E.2d 882 (1980). It must be shown that reasonably intelligent persons would differ as to which one of two or more meanings is the proper one. Ober v. National Cas. Co., 318 Mass. at 30, 60 N.E.2d 90. However, an ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other's. Southern Construction Co. v. United States, 364 F.2d 439, 453 (Ct.Cl.1966).

The interpretation of an insurance contract is a "question of law for the trial judge, and then for the reviewing court." 4 Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234 (1982). In our opinion, the words contained in the exclusionary clause, especially the phrase "care, custody or control," are clear and free from ambiguity. Therefore, we construe those words in their usual and ordinary sense. Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 605, 373 N.E.2d 966 (1978). Our inquiry does not stop there, however. Words that are clear and unambiguous, by themselves, may be ambiguous when read in the context of the entire insurance contract, or as applied to the subject matter. Save-Mor Supermarkets, Inc. v. Skelly Detective Serv., Inc., 359 Mass. 221, 226, 268 N.E.2d 666 (1971). Reading the words of the exclusion in that context, we hold that they are not reasonably susceptible of more than one meaning.

The insurance contract provided comprehensive coverage for "all sums which the [Holyoke police department] shall become legally obligated to pay as damages because of negligent acts, errors, or omissions arising out of the performance of the ... duties [of the Holyoke police department and its members] to provide law enforcement with respect to the following perils: Coverage A--Personal Injury; Coverage B--Bodily Injury; Coverage C--Property Damage." The exclusionary clause clearly excludes from coverage those claims arising from events during which the injured party was in "the care, custody or control" of the Holyoke police department or any of its members. 5 Here, there is no dispute that Smigiel was in the "care, custody or control" of the police department at the time she committed suicide. Holyoke argues, however, that the exclusion applies only to those situations where police officers use excessive force on persons who are under their "care, custody or control." We reject that argument. The language in the exclusionary clause is not reasonably susceptible of such an interpretation. If the parties had intended that the exclusionary clause should apply only to a "hands-on" situation, they could have used appropriate language. "They did not do so, and we cannot distort the plain policy language to give it that construction." Save-Mor Supermarkets, Inc. v. Skelly Detective Serv., Inc., 359 Mass. at 227, 268 N.E.2d 666. We conclude that there was no ambiguity in the contract and that the exclusionary clause controls the situation present in the instant case. 6

2. The doctrine of reasonable expectations. The judge refused to apply the "doctrine of reasonable expectations" in this matter, and Holyoke claims error. The doctrine has been described by...

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