Oliveira v. Commerce Ins. Co., 17-P-757

• Decision Date: 23 October 2018
• Docket Number: No. 17-P-757,17-P-757
• Parties: Derrick Martins OLIVEIRA v. The COMMERCE INSURANCE COMPANY.
• Court: Appeals Court of Massachusetts

112 N.E.3d 1206

Derrick Martins OLIVEIRA

v.The COMMERCE INSURANCE COMPANY.

No. 17-P-757

Appeals Court of Massachusetts, Suffolk.

Argued March 9, 2018

Decided October 23, 2018

Brad W. Greenberg, Brookline, for the plaintiff.

John P. Donohue, Worcester, for the defendant.

Present: Trainor, Meade, Lemire, Ditkoff, & McDonough, JJ.¹

DITKOFF, J.

The plaintiff, Derrick Martins Oliveira, filed suit against the insurer, The Commerce Insurance Company, to obtain coverage as a "household member" under an insurance policy held by the mother and stepfather of his long-term partner, with whom he has a child. To resolve this dispute, we must confront the question whether the phrase "related by blood," in its usual and ordinary sense, reaches two persons with no blood relationship with each other whatsoever, but who each have a blood relationship with a third person. Concluding that the Superior Court judge correctly determined that two persons without a blood relationship with each other are not "related by blood," in the common understanding of the term, we affirm the summary judgment for the insurer.

1. Background. Since 2012, the plaintiff has lived with his long-term partner in a single-family unit with her mother and stepfather. The plaintiff is not married to his partner, but they have a minor son together.

On July 18, 2014, the plaintiff was injured in a serious single-automobile accident while a passenger in a vehicle owned and operated by a third party. The plaintiff sustained fractures to his spine

and ribs, tore ligaments in his knee, and suffered substantial lacerations and scarring on his scalp. He was hospitalized for four days, required long-term disability, and incurred medical bills in excess of $40,000. The driver was insured under her own policy, and the plaintiff accepted a settlement with the driver and the driver's insurer to the full extent of that policy, $100,000.²

The insurance company here provided coverage for the two vehicles used by the residents of the plaintiff's home under a policy issued to his partner's mother and stepfather (policyholders). The policy provided, inter alia, $250,000 of coverage per person in underinsured motorist (UIM) coverage for "damages for bodily injury to people injured or killed as a result of certain accidents caused by someone who does not have enough insurance." The policy for UIM coverage included coverage for:

"1. You, while occupying your auto, while occupying an auto you do not own, or if injured as a pedestrian.

"2. Any household member, while occupying your auto, while occupying an auto not owned by you, or if injured as a pedestrian. If there are two or more policies which provide coverage at the same limits, we will only pay our proportionate share. We will not pay damages to or for any household member who has a Massachusetts auto policy of his or her own or who is covered by a Massachusetts auto policy of another household member providing underinsured auto insurance with higher limits."

The policy also included a definition for "household member":

"9. Household Member- means anyone living in your household who is related to you by blood, marriage or adoption. This includes wards, step-children or foster children."

The plaintiff claimed coverage under the policy as a "household member" of the policyholders.³ The insurer denied the claim, contending that the plaintiff was not eligible for coverage because he did not "meet the definition of a ‘household member’ " under the policy. In response, the plaintiff filed a complaint in Superior Court, alleging breach of contract and seeking a judgment declaring that the plaintiff was a "household member" under the policy and, as such, was eligible for coverage. On cross-motions for summary judgment, the plaintiff argued that he was related by blood to the policyholders through his biological son and therefore entitled to coverage as a "household member."⁴ After a hearing, a judge denied the plaintiff's motion and granted the insurer's motion. The judge found that the plaintiff was not related by blood to either policyholder, and thus he was not a "household member" and was not entitled to UIM coverage under the policy. This appeal followed.

2. Discussion. "We review a grant of summary judgment de novo." Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253, 28 N.E.3d 416 (2015). On appeal, the issue 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 judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177, 37 N.E.3d 39 (2015), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). Here, there is no dispute concerning the material facts, but only concerning the proper construction of the insurance policy.

Our task is to "construe the words of the policy in their usual and ordinary sense." Mahoney v. American Auto. Ins. Co., 83 Mass. App. Ct. 677, 679, 989 N.E.2d 503 (2013), quoting Hakim v. Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 280, 675 N.E.2d 1161 (1997). Because "the language of the policy is determined by the insurance commissioner," construction of the policy language "is exempt from the usual construction against the drafter; rather, it is interpreted in its ordinary sense." Kanamaru v. Holyoke Mut. Ins. Co., 72 Mass. App. Ct. 396, 399, 892 N.E.2d 759 (2008), citing Chenard v. Commerce Ins. Co., 440 Mass. 444, 445-446, 799 N.E.2d 108 (2003).⁵

In its usual and ordinary sense, the phrase "related by blood" denotes a genetic relationship between the two persons asserted to be related. See Black's Law Dictionary 1402 (9th ed. 2009) (defining "blood relative" as "[o]ne who shares an ancestor with another"). See also Allstate Ins. v. Shelton, 105 F.3d 514, 516-517 (9th Cir. 1997) ("resident relative" requires relationship of blood or affinity; where unmarried partners were living together, child of one partner was not relative of other partner); Remington v. Aetna Cas. & Sur. Co., 35 Conn. App. Ct. 581, 587, 646 A.2d 266 (1994) (stepson related by affinity but not by blood); People v. Zajaczkowski, 493 Mich. 6, 14, 825 N.W.2d 554 (2012) (where deoxyribonucleic acid test established that defendant and victim "do not share a relationship arising by descent from a common ancestor," they were not related by blood); Lewis v. Farmers Ins. Exch., 315 Mich. Ct. App. 202, 217, 888 N.W.2d 916 (2016) (automobile insurance policy covering person related "by blood, marriage or adoption" did not reach person whose aunt married insured's uncle). Cf. State Farm Mut. Auto. Ins. Co. v. Boyd, 377 F.Supp.2d 511, 514-515 (D.S.C. 2005) (former foster child of insured's brother not related "by blood, marriage or adoption").

Here, there is no genetic relationship between the plaintiff and the policyholders; rather the plaintiff relies on the fact that both the plaintiff and one of the policyholders have a genetic relationship with the plaintiff's child. The policy, however, covers (for UIM purposes) a person "related to you [the policyholder] by blood, marriage or adoption," not someone "who is related by blood to someone you are related to by blood." Indeed, in the only case we have found to address this precise issue, Holi v. AIG Haw. Ins. Co., 113 Hawai'i 196, 197, 206, 150 P.3d 845 (Ct. App. 2007), the Hawaii Court of Appeals affirmed a lower court's ruling that UIM benefits were not available to a person who lived in the policyholders' household and had a child with the policyholders' daughter, who was not married to the injured person at the time of the accident. The lower court had held that, because the injured person there a lacked a common ancestor with the policyholders, he was not related by blood to the policyholders and, therefore, he was not entitled to UIM coverage. Id. at 206, 150 P.3d 845.⁶ The injured person failed even to challenge this ruling on appeal. Id.

Here, the plaintiff requests an expansive definition of "related by blood." The policy language, however, by specifically adding "wards, step-children or foster children" to the persons included in "household member," makes evident that the meaning of "related ... by blood, marriage or adoption" is not suited to further expansion beyond its usual and ordinary meaning. Otherwise, there would be no need to add those persons to the definition of "household member." See Balles v. Babcock Power Inc., 476 Mass. 565, 575 n.17, 70 N.E.3d 905 (2017) (contract should be interpreted not to render any provision superfluous).

We are, nonetheless, given some pause by Turner v. Lewis, 434 Mass. 331, 749 N.E.2d 122 (2001). In Turner, the Supreme Judicial Court faced a complaint for an abuse prevention order sought by the paternal grandmother of a child against the mother, who had never married the child's father. Id. at 331-332, 749 N.E.2d 122. The grandmother had custody of the child and, when the grandmother failed to produce the child at the mother's demand, the mother attacked the grandmother and threatened her with more violence. Id. The Supreme Judicial Court held that "related by blood," as used in G. L. c. 209A, § 1, was broad enough to include the relationship between the grandmother and the mother, and thus the grandmother could seek an abuse prevention order. Turner, supra at 334, 749 N.E.2d 122.

The reasoning of Turner, however, is not applicable here. The court in Turner was not applying the usual and ordinary meaning of the term "related by blood," but rather interpreting legislative language in light of the Legislature's intent "to broaden the definition of persons eligible to seek protection from abuse and domestic violence beyond the ‘family’ and to also include other persons having some ‘family-like’ connection." Turner, 434 Mass. at 334, 749 N.E.2d 122, quoting Kindregan & Inker, Family Law and Practice § 57.5 (2d ed. 1996). Noting the "importance of ‘giv...