Metropolitan Property & Cas. Ins. v. Santos

Decision Date11 September 2002
Docket NumberNo. 00-P-1903.,00-P-1903.
Citation55 Mass. App. Ct. 789,774 N.E.2d 1128
PartiesMETROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY v. William SANTOS, Jr., & another.<SMALL><SUP>1</SUP></SMALL>
CourtAppeals Court of Massachusetts

Michael L. Snyder, Boston, for the plaintiff.

Allan J. Costa, Plymouth, for the defendants.

Present: CYPHER, MASON, & KAFKER, JJ.

KAFKER, J.

The case arises out of injuries sustained by defendant Patricia A. Slavin on May 17, 1999, during the loading of a pick-up truck owned by defendant William Santos, Jr., and insured by plaintiff Metropolitan Property and Casualty Insurance Company (Metropolitan). While Santos operated a hydraulic lift at the Plymouth town wharf, Slavin was hit in the mouth with three 100-pound totes of fish as she stood behind the truck in order to guide the totes into the truckbed. At the time of the incident, Santos had a Standard Massachusetts Automobile Insurance Policy (Sixth Edition) (the policy) issued by Metropolitan, covering the period between July 13, 1998, and July 13, 1999.2 The policy provided coverage for a 1983 Chevrolet K-10 pick-up truck (truck) owned by and registered to Santos.3 Slavin filed a claim with Metropolitan for benefits under the following sections of the policy: (1) compulsory bodily injury to others (compulsory BI); (2) compulsory personal injury protection (PIP); and (3) optional bodily injury to others (optional BI).

Metropolitan filed a complaint for declaratory relief, seeking a declaration and order that it had no obligation to provide insurance benefits to or for Slavin in connection with the incident. After the parties jointly filed a stipulation of facts along with cross motions for summary judgment, a Superior Court judge allowed summary judgment in favor of Slavin and entered a declaration and order that Metropolitan had a duty to defend and indemnify Santos on any claim or civil action for personal injuries brought by Slavin in connection with the incident. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). Superior Court Rule 9A(b)(5). The judge further ruled that Metropolitan was obligated to provide PIP benefits to Slavin for the injuries she sustained in the incident. Metropolitan timely filed its notice of appeal and now claims that the judge committed an error of law in determining that the incident was covered under the policy.

A. Statement of the facts. The parties stipulated to the following facts. Santos was a commercial fisherman who routinely docked his vessel, "Four Kids," at the Plymouth town wharf. Between 5:30 P.M. and 6:30 P.M. on May 17, 1999, Santos telephoned Slavin and requested that she bring the truck to the wharf to assist him in transferring the fish from the boat and onto the truck. Slavin arrived at the wharf with the truck between 6:00 P.M. and 7:00 P.M. Santos had already removed the fish from the "Four Kids" and placed them in hard plastic containers known as totes, weighing approximately 100 pounds each. Slavin backed the truck to the area where Santos had stacked the totes three-high and turned off the ignition.

Santos used a hydraulic lift permanently maintained at the wharf to load the totes into the truckbed.4 He had used the lift hundreds of times prior to May 17, 1999. Slavin was standing behind the truck near the tailgate in order to guide the totes into the truckbed when she was struck in the mouth by the totes, resulting in her injuries. Slavin was not inside the truck, nor was she standing on the truckbed when she was injured; she may or may not have been making contact with the truck.

B. Standard of review. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Miller v. Mooney, 431 Mass. 57, 60, 725 N.E.2d 545 (2000), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). Mass. R.Civ.P. 56(c). "The interpretation of an insurance contract is a question of law for the court.... Likewise, the application of policy language to known facts presents a question of law for the court." Kelleher v. American Mut. Ins. Co., 32 Mass.App.Ct. 501, 503, 590 N.E.2d 1178 (1992). See White v. American Cas. Ins. Co., 53 Mass. App.Ct. 66, 68, 756 N.E.2d 1208 (2001).

C. Personal injury protection benefits. Part 2 of the policy provides that the insurer will pay compulsory PIP — or "no-fault" — benefits to or for the policy holder, "or any other person, if injured while occupying [the] auto with the [policy holder's] consent." The policy defines "occupying" in the "Definitions" section of the policy as "in, upon, entering into, or getting out of' the vehicle.5 Without addressing the "occupying" requirement, the trial court awarded PIP benefits.

The defendants concede that Slavin was not occupying the automobile at the time of the incident. They nevertheless maintain that she is entitled to PIP benefits based on allegedly ambiguous language in the policy and that we must "ascertain the fair meaning of the language used, as applied to the subject matter." Bilodeau v. Lumbermen Mut. Cas. Co., 392 Mass. 537, 541, 467 N.E.2d 137 (1984) (citation omitted). The defendants point to the introductory statement regarding PIP benefits that provides, "[w]e will pay the benefits described below to you and other people injured or killed in auto accidents," and claim that it is inconsistent with language appearing later in Part 2 of the policy that provides, "[w]e will pay PIP benefits to or for you, or any other person, if injured while occupying your auto with your consent" (emphasis in original).

A fair reading of the policy reveals no ambiguity with respect to the occupancy requirement. The subsequent provision clearly contains a conditional clause requiring occupancy, and should be construed according to its plain meaning. Moreover, the defendants cite no Massachusetts case in which the language of a policy with respect to PIP benefits, if ambiguous, has been interpreted so expansively as not to require occupancy.

Given that the language of Part 2 is clear as to the occupancy requirement, the judge erred in granting summary judgment in favor of Slavin and not granting summary judgment for Metropolitan with respect to PIP benefits.

D. Optional bodily injury to others benefits. Part 5 of the policy provides that Metropolitan will pay optional BI benefits to people injured or killed in an accident if the insured or a member of his or her household is legally responsible for the accident.6 The policy provides that the insurer will not pay for injuries caused by accidents occurring:

"[w]hile anyone is using a vehicle in the course of any business other than that of selling, servicing, repairing or parking autos. This exclusion does not apply to private passenger autos, pick-up trucks, vans, or similar type vehicles having a gross vehicle weight of 10,000 pounds or less and not used for the delivery or transportation of goods or materials unless such use is incidental to [the policy holder's] business of installing, maintaining, or repairing furnishings or equipment."

The judge recognized this exclusion, which on its face excludes Santos's use of the truck from coverage because it involved the delivery and transportation of goods however, he reasoned that Metropolitan raised but did not adequately develop the argument that Slavin's injuries occurred during a business use of the insured vehicle and therefore did not reach or address the exclusion.7

Metropolitan argues that since the parties stipulated to facts that establish that the pick-up truck was being used for the "delivery and transportation of goods or materials" — in this case fish stored in plastic totes for commercial sale — it is absolved from any duty to pay optional BI benefits under the express provisions of the policy.

Given the explicit business use exception in Part 5 of the policy, the defendants' stipulated use of the pick-up truck for loading and transporting fish in Santos's business as a fisherman, and Santos's concession in his deposition that "[a]t the time of the incident, [he was] using the truck in connection with [his] work," Slavin's motion for summary judgment with respect to optional BI benefits should not have been allowed. The materials submitted by the parties in support of their cross motions for summary judgment clearly demonstrate that the defendants had no reasonable expectation of proving that the instant use was not "in the course of any business." See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991).

E. Compulsory bodily injury to others benefits. Unlike the PIP benefits section, the compulsory BI section of the policy has no "occupancy" requirement. Also unlike the optional BI benefits section, the compulsory BI section has no business use exclusion. As a result, for the purposes of determining coverage for compulsory BI benefits, we need consider only whether a covered accident has occurred.8

An accident is defined in the "Definitions" section of the policy as an "unexpected, unintended event that causes bodily injury or property damage arising out of the ownership, maintenance or use of an auto." The trial judge properly found that "[t]here is no dispute in the record that Slavin being hit with the fish tote on May 17, 1999 was unexpected and unintended or that such an occurrence caused her bodily injury." The judge also correctly found that because "Slavin does not own the vehicle and was not in the process of maintaining it when the accident occurred," the issue was whether the injuries arose out of the "use" of the vehicle. The judge concluded that the injury arose out of the loading of the vehicle and was therefore covered by the policy.

"The expression `arising out of' indicates a wider range of causation than the concept of proximate...

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