Johnson v. Travelers Indem. Co.

• Decision Date: 13 May 1971
• Citation: 359 Mass. 525,269 N.E.2d 700
• Parties: David F. JOHNSON, Individually and as Administrator, et al. v. TRAVELERS INDEMNITY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 700

269 N.E.2d 700

359 Mass. 525

David F. JOHNSON, Individually and as Administrator, et al. v. TRAVELERS INDEMNITY COMPANY.

Supreme Judicial Court of Massachusetts, Hampden.

Argued April 6, 1971.

Decided May 13, 1971.

Frederick S. Pillsbury, Springfield, for insurer.

Thomas J. O'Connor, Springfield, for plaintiffs.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO, and BRAUCHER, JJ. BRAUCHER, Justice.

On April 1, 1967, the son of the plaintiffs David F. and Effie Johnson, aged eleven, was struck and killed by an uninsured automobile. The parents had three automobiles, each covered by a separate insurance policy issued by the same insurer. Each policy included Coverage U--Protection Against Uninsured Motorists, with a limit of liability of $5,000 for 'each person' in each policy. The boy was an insured under each policy as a relative of the named insured while a resident of the same household.

The insurer is willing to pay a total of $5,000, one-third on each policy, but asserts that its total liability is limited to $5,000. The plaintiffs sought declaratory relief as to the applicable limits. On the pleadings and a statement of agreed facts, the judge made findings of fact, declarations of rights, and an order for a decree. The insurer appeals from a decree that the plaintiffs may recover, when liability and damages are determined, a sum on each policy equal to one-third of the damages, with an upper limit of $5,000 on each policy.

1. The critical clause is identical in each policy. With an exception not applicable here, it reads: '* * * if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance' (emphasis supplied).

A somewhat similar clause, applicable to Coverage A, the compulsory liability coverage under G.L. c. 90, § 34A, was interpreted in Maryland Cas. Co. v. Hunter, 341 Mass. 238, 244--245, 168 N.E.2d 271, 276, 'to mean that each insurer is to share proportionately the total loss, so long as it is not required to pay more than its applicable limit of liability.' But that clause did not contain the language italicized above. With the italicized language, the clause may be infelicitous and confusing, but it is not ambiguous. If the italicized language means anything, it must mean that total recovery against the insurer in the present case is limited to $5,000.

2. So interpreted, the clause in each policy imposes a limit of one-third of $5,000 on payment under that policy on account of the death of the insured in this case. The governing statute in 1967 was G.L. c. 90, § 34L, inserted by St.1966, c. 260. ¹ That statute required that each policy provide for payment 'within limits no less than those set forth in said' § 34A. ² The definition of 'motor vehicle liability policy' in § 34A requires a policy which provides indemnity for or protection 'to the amount or limit of at least five thousand dollars on account of injury to or death of any one person.' A clause providing a limit of one-third of $5,000 does not comply with a requirement that the limit be 'no less' than 'at least $5,000.'

3. We therefore agree with the judge's ruling that the 'other insurance' clause conflicts with the statute and is ineffective to the extent of the conflict. Our conclusion is in accord with decisions reached by other courts in similar situations. Bacchus v. Farmers Ins. Group Exch., 106 Ariz. 280, 475 P.2d 264; Sellers v. United States Fid. & Guar. Co., 185 So.2d 689 (Fla.); State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, 177 S.E.2d 257; Morelock v. Millers' Mut. Ins. Assn., 125 Ill.App.2d 283, 260 N.E.2d 477; Sturdy v. Allied Mut. Ins. Co., 203 Kan. 783, 457 P.2d 34; Stephens v. Allied Mut. Ins. Co., 182 Neb. 562, 156 N.W.2d 133; Moore v. Hartford Fire Ins. Co. Group, 270 N.C. 532, 155 S.E.2d 128; Smith v. Pacific Auto. Ins. Co., 240 Or. 167, 400 P.2d 512; Harleysville Mut. Cas. Co. v. Blumling, 429 Pa. 389, 241 A.2d 112; Vernon v. Harleysville Mut. Cas. Co., 244 S.C. 152, 135 S.E.2d 841; Bryant v. State Farm Mut. Auto. Ins. Co., 205 Va. 897, 140 S.E.2d 817. See Safeco Ins. Co. v. Robey, 399 F.2d 330 (8th Cir.) (Ark. law); Pulley v. Allstate Ins. Co., 242 F.Supp. 330 (E.D.Va.), stating that Travelers Indem. Co. v. Wells, 316 F.2d 770 (4th Cir.), 'is no longer the law.' See Annotation, 28 A.L.R.3d 551. There are...