Kenner v. Century Indem. Co.
| Decision Date | 25 June 1946 |
| Citation | 67 N.E.2d 769,320 Mass. 6 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | BENJAMIN KENNER v. THE CENTURY INDEMNITY COMPANY & others(and a companion case [1]). |
March 6, 1946.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & SPALDING, JJ.
Insurance, Motor vehicle liability insurance, Subrogation. Subrogation. Words "Use." A policy of compulsory motor vehicle liability insurance issued under G. L.
(Ter. Ed.) c. 90 Section 34A, as amended, covered judgments obtained against the proprietor of an automobile repair shop and an employee thereof for personal injuries sustained in a collision occurring on a public way between an automobile in which the judgment creditor was riding and the insured automobile while the insured automobile, which had been left by its owner at the repair shop for repairs, was being driven on a way by the employee of the shop for testing purposes in the course of the repairs; but noncompulsory coverage in the same policy did not cover such judgments because the definition of "insured" in that coverage excluded one operating an automobile repair shop, or any employee thereof, with respect to any accident arising out of its operation.
Under the provision of G. L. (Ter. Ed.) c. 90, Section 34C, that a blanket policy of compulsory motor vehicle liability insurance issued under that section shall cover all vehicles "owned or controlled by" the insured, such a policy issued to the proprietor of an automobile repair shop having a general registration under c. 90, Section 5, covered an automobile in his possession for repairs while it was being operated on a public way for testing in the course of the repairs notwithstanding that his number plates were not displayed on the automobile and a provision of the policy limited its coverage to vehicles "under a . . . repairer's registration," and that the automobile was being operated on the number plates of its owner. A policy of insurance issued to the proprietor of an automobile repair shop and insuring him against liability for personal injuries arising from the ownership, maintenance, occupation or use of the shop premises and adjoining ways "and all operations either on the premises or elsewhere which are necessary and incidental thereto, including repairs of motor vehicles," but not "ownership or use of any motor vehicle," covered a judgment against the proprietor for personal injuries sustained through negligence of an employee of the proprietor in operating on a way, for testing in the course of repairs, an automobile owned by a third person and left by him at the shop for such repairs.
A judgment against the proprietor of an automobile repair shop for property damage resulting from negligence of his employee in driving on a way, for testing in the course of repairs, an automobile of a third person left at the shop for such repairs was not covered by a motor vehicle liability insurance policy issued to the owner of the automobile, in which the definition of "insured" excluded one operating such a shop, or any employee thereof, "with respect to any accident arising out of the operation thereof"; but the judgment was covered by a policy of insurance issued to the proprietor and insuring him against liability for property damage "arising out of the ownership, maintenance, occupation or use of the [shop] premises . . . and all operations either on the premises or elsewhere which are necessary and incidental thereto, including repairs of motor vehicles."
A judgment creditor holding a judgment for personal injuries, in an amount less than $5,000, covered by both of two policies of compulsory motor vehicle liability insurance issued by different insurers, each having an applicable limit of liability of $5,000 and each providing that if the insured had other valid and collectible insurance against the loss the insurer should not be liable for a greater proportion of the loss than such limit of liability bore to the total applicable limit of liability of all the insurance, and also covered by noncompulsory coverage with an applicable limit of liability of $10,000, included in one of the policies, which provided that the limit of liability of the compulsory coverage should be fully exhausted before the limit of liability of the noncompulsory coverage should apply, was entitled, in a consolidated suit in equity to reach and apply the obligations of both insurers, to recover from each insurer one half of the amount of the damages included in the judgment, one half of the interest on that amount, one half of the costs of the judgment and one half of the interest on such costs.
A provision in each of two policies of compulsory motor vehicle liability insurance issued by different insurers, that "in the event of any payment under this policy, the company shall be subrogated to all the insured's rights of recovery therefor," did not entitle either insurer to throw the whole amount of a certain loss upon the other by subrogation where the loss, arising from a judgment for personal injuries against one who was either a named or an unnamed insured in both policies, was covered by both policies; the loss must be apportioned between the insurers according to an "Other Insurance" provision contained in like terms in both policies.
FOUR BILLS IN EQUITY, filed in the Superior Court on September 27, 1944. The suits were consolidated and reported by J. Walsh, J.
E. Field, for the plaintiffs.
D. J. Kelly, (N.
F. Fermoyle with him,) for Massachusetts Bonding and Insurance Company.
W. W. Jump, for The Century Indemnity Company.
The plaintiff in each of these two suits seeks to reach and apply under G. L. (Ter. Ed.) c. 214, Section 3 (10), and c. 175, Section 113, the alleged obligations of the defendant The Century Indemnity Company, hereinafter called Century, and of the defendant Massachusetts Bonding and Insurance Company hereinafter called Mass. Bonding, to the defendants Robinson and Toohey, copartners, and to the defendant Mailloux, under motor vehicle liability policies issued respectively by Century to one Dineen and by Mass. Bonding to Robinson and Toohey, each policy being effective during the year 1943. The facts are agreed. The cases are here by report.
The policy issued by Century to Dineen covered a single vehicle therein described. Robinson and Toohey carried on in Lawrence the business of dealing in and servicing and repairing automobiles. The registrar of motor vehicles issued to them a certificate of registration containing a general distinguishing number and furnished them number plates as provided in G. L. (Ter. Ed.) c. 90, Section 5. The policy issued by Mass. Bonding to Robinson and Toohey was in "garage liability form." Mailloux was an employee of Robinson and Toohey. On or about December 18, 1943, Dineen delivered his motor vehicle, insured by Century, to Robinson and Toohey for the purpose of having repairs made upon it. As necessary and incident to said repairs, and for the purpose of testing the vehicle, Mailloux as the servant or agent of Robinson and Toohey operated it upon a public way in Lawrence and negligently collided with a motor vehicle owned by the plaintiff Benjamin Kenner, causing damage to his motor vehicle and personal injury to the plaintiff Marlene Kenner. At the time of the collision Robinson and Toohey as principals and Mailloux as their agent were responsible for the operation of Dineen's vehicle, and its operation was with the express or implied consent of Dineen. Dineen's plates and not those of Robinson and Toohey were upon it. In 1944 Benjamin Kenner recovered judgment against Robinson and Toohey and also against Mailloux for the damage to his vehicle, both judgments being for the same cause of action; and Marlene Kenner recovered judgments against the same defendants for personal injury, both judgments being for the same cause of action. After the judgments had remained unsatisfied for thirty days the plaintiffs brought four suits, which by consolidation have been reduced to the two now before us. All conditions precedent have been satisfied to enable the plaintiffs to prevail, if they are otherwise entitled to prevail upon the facts stated and under the terms of the policies to which reference will be made in dealing with the claims of the respective plaintiffs.
1. The plaintiff Marlene Kenner has a valid claim against Century for the amount of her damages for personal injury, the sum being that mentioned as damages in each of her judgments, together with the costs of both judgments and interest.
This recovery rests squarely upon "Coverage A" of Century's policy. "Coverage A" is the Massachusetts compulsory motor vehicle liability policy defined in G. L. (Ter. Ed.) c. 90, Section 34A, as amended by St. 1935, c. 459, Section 2. It includes insurance of the named insured and any person responsible for the operation of the insured's motor vehicle with his express or implied consent against liability arising out of the operation of the vehicle upon the ways of the Commonwealth. Robinson and Toohey as principals and Mailloux as their agent were persons responsible for the operation of Dineen's motor vehicle upon a way of the Commonwealth with the implied consent of the named insured. Marlene Kenner was a person injured who did not come within either of the excluded classes of "Guest Occupant" or employee entitled to workmen's compensation. Liability to her on the part of Robinson and Toohey or of Mailloux was a liability insured against by "Coverage A."
2. The plaintiff Marlene Kenner has, however, no valid claim against Century on "Coverage B" of Century's policy, which is the general nonstatutory coverage against liability for bodily injury, since the definition of "insured" applicable to this...
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