Oliveria v. Preferred Acc. Ins. Co. of New York

• Decision Date: 30 November 1942
• Citation: 45 N.E.2d 263,312 Mass. 426
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MARGARET OLIVERIA, administratrix, v. PREFERRED ACCIDENT INSURANCE COMPANY OF NEW YORK & another.

312 Mass. 426

45 N.E.2d 263

MARGARET OLIVERIA, administratrix, v. PREFERRED ACCIDENT INSURANCE COMPANY OF NEW YORK & another.

Supreme Judicial Court of Massachusetts, Bristol.

November 30, 1942

October 26, 1942.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Insurance, Motor vehicle liability insurance. A policy of motor vehicle liability insurance which, under the heading

"Coverage A . . Statutory," provided indemnity "in accordance with" the compulsory motor vehicle liability insurance law against loss "by reason of the liability imposed upon" the insured for bodily injury or death "sustained by any person," covered no more than did a policy of the character defined in G. L. (Ter. Ed.) c. 90 Section 34A, and did not cover a judgment for the death of the insured caused by negligent operation of his motor vehicle by one responsible for its operation with his consent.

BILL IN EQUITY filed in the Superior Court on September 3, 1940. The plaintiff appealed from a final decree dismissing the bill, entered by order of Baker, J.

H. W. Radovsky, for the plaintiff.

F. E. Smith, (W.

J. Fenton with him,) for the defendant insurance company.

QUA, J. This is a bill in equity brought under G. L. (Ter. Ed.) c. 175, Section 113, and c. 214, Section 3 (10), to reach and apply the obligation of the defendant insurance company on a liability policy to pay a judgment recovered by the plaintiff for the death of her husband, Manuel Oliveria, against the defendant Louis Oliveria, who is the son of herself and Manuel. See Oliveria v. Oliveria, 305 Mass. 297 .

Manuel, the deceased, owned a motor vehicle. He was the "named assured" in a policy covering that vehicle, wherein the defendant insurance company agreed to pay in behalf of the assured "in accordance with the `Massachusetts Compulsory Automobile Liability Security Act'" all sums which the assured should become obligated to pay by reason of the liability imposed upon him by law for damages for bodily injury, including death, sustained "by any person or persons" through the operation of his motor vehicle on the ways of this Commonwealth. The section of the policy which contained this provision was headed, "I. Coverage A. Bodily Injury Liability -- Statutory (Upon the ways of the Commonwealth of Massachusetts)." The policy further provided that the word "Assured" should include not only the "named Assured" but also any other person responsible for the operation of the motor vehicle with the express or implied consent of the "named Assured." On September 2, 1935, while the policy was in force, the defendant Louis Oliveria operated the motor vehicle on a highway in this Commonwealth with the consent of Manuel, the named assured, and operated it so negligently that he caused the death of Manuel.

The trial judge rightly dismissed the bill. In MacBey v. Hartford Accident & Indemnity Co. 292 Mass. 105 , we held after careful consideration that a motor vehicle liability policy as defined in G. L. (Ter. Ed.) c. 90, Section 34A, did not cover liability for bodily injuries suffered by the named assured himself through the operation of the vehicle by another with the named assured's consent. We there pointed out that this statute disclosed an intent to draw a sharp line of distinction between the assured himself on the one hand and "others" to whom damages are to be paid on the other hand. The assured himself does not belong to the class of the "others" against whose claims the company has agreed to provide protection. See Rose v. Franklin Surety Co. 281 Mass. 538; Cain v. American Policyholders' Ins. Co. 120 Conn. 645. Compare Adams v. American Employers Ins. Co. 292 Mass. 260 . It becomes necessary for the plaintiff to distinguish the present case from the MacBey case. This she attempts to do on two grounds, which we will consider in turn.

First, the plaintiff contends that the policy in this case affords a coverage broader than is required by the statute and broader than was afforded by the strictly statutory policy dealt with in the MacBey case. The basis of this contention is that the policy, instead of following precisely the wording of the statute and covering the assured against loss "by reason of the liability to pay damages to others" for bodily injuries or death "sustained . . . by any person," omits the words "to others" and covers the assured against loss...