Plymouth Rock Assur. Corp. v. McAlpine

• Decision Date: 02 July 1992
• Docket Number: No. 90-P-1383,90-P-1383
• Citation: 594 N.E.2d 901,32 Mass.App.Ct. 755
• Parties: PLYMOUTH ROCK ASSURANCE CORPORATION, v. Cheryl McALPINE et al. 1
• Court: Appeals Court of Massachusetts

Page 901

594 N.E.2d 901

32 Mass.App.Ct. 755

PLYMOUTH ROCK ASSURANCE CORPORATION, v. Cheryl McALPINE et al. ¹

No. 90-P-1383.

Appeals Court of Massachusetts,

Suffolk.

Argued Jan. 22, 1992.

Decided July 2, 1992.

John D. Boyle, Boston, for plaintiff.

Samuel E. Greydanus, III, Braintree, for defendants.

Before PERRETTA, KASS and IRELAND, JJ.

PERRETTA, Justice.

On July 3, 1989, Cheryl McAlpine was in an automobile accident which was caused by the negligence of an uninsured motorist. She was the sole named insured on a policy, issued to her by Commercial Union Insurance Company (Commercial), effective December 11, 1988, through December 11, 1989. Commercial paid her the full limit, $10,000, of her uninsured motorist coverage. At the time of the accident, McAlpine resided with her mother, Beatrice Cate, who had uninsured motorist coverage in the amount of $50,000 on a policy issued to her on January 1, 1989, by Plymouth Rock Assurance Corporation (Plymouth). When McAlpine sought to stack her policy coverage with that provided under her mother's policy, Plymouth brought an action seeking a declaration that, under G.L. c. 175, § 113L, the coverage provided under its policy with Cate could not be stacked with the uninsured coverage available to McAlpine under her policy with Commercial. The parties entered into a statement of agreed facts, and a Superior Court judge, pursuant to Mass.R.Civ.P. 64, 365 Mass. 831 (1974), reported to us the question whether Cate's 1989 policy provides uninsured motorist coverage to McAlpine. Concluding that it does not, we respond "No" to the question.

1. The statute. In Cardin v. Royal Ins. Co. of America, 394 Mass. 450, 456, 476 N.E.2d 200 (1985), the court stated that the "propriety of stacking is a policy decision best left to the Legislature, and ... the strict command of the statute [G.L. c. 175, § 113L] precludes the insurer's attempt to avoid stacking uninsured motorist coverage."

In 1988, the Legislature amended various motor vehicle insurance statutes and expressed a very different policy decision. The purpose of the amendments, as expressed in St.1988, c. 273, § 1, is to reduce automobile insurance rates.

Statutes 1988, c. 273, § 47, amends § 113L by adding thereto a fifth paragraph. That paragraph provides, as here pertinent: "Uninsured motorists coverage shall provide that regardless of the number of vehicles involved, whether insured or not, persons covered, claims made, premiums paid or the number of premiums shown on the policy, in no event shall the limit of liability for two or more vehicles or two or more policies be added together combined or stacked to determine the limits of insurance coverage available to injured persons."

By § 77 of c. 273, St.1988, § 47, was made "effective for policies or contracts issued or renewed on or after the first of January, nineteen hundred and eighty-nine."

2. The policy's exclusion of coverage. As earlier noted, Plymouth issued its policy to Cate on January 1, 1989. There are two clauses in the mandatory endorsement to the underlying policy that are pertinent to McAlpine's bid to combine the coverage under the two policies, and they are consistent with the legislative prohibition against stacking. The first appears in subparagraph 1 to Part 3, "Bodily Injury Caused By An Uninsured Auto," and reads: "We will pay damages to or for: 1. You [Cate], or any household member [McAlpine], unless the household member has a Massachusetts auto policy of his or her own providing similar coverage or is covered by a Massachusetts auto policy of another household member providing similar coverage with higher limits."

Plymouth contends that "similar coverage" means, simply, coverage for bodily injury caused by an uninsured motorist. Because McAlpine's policy provides her with such protection, Plymouth concludes that she is excluded from coverage under its policy. McAlpine argues that the term "similar coverage" means "similar limits of coverage." Because her own policy provides her with less uninsured coverage than the Plymouth policy, she claims that the exclusion does not apply.

In construing the word "similar" as used in the policy, we do not find the common meaning and understanding of that word to be of any particular help. "The word 'similar' is often used to denote a partial resemblance only. But it is also often used to denote sameness in all essential particulars." Commonwealth v. Fontain, 127 Mass. 452, 454 (1879). It would thus appear that both Plymouth and McAlpine can find support for their conflicting contentions in the common meaning and understanding of the word "similar." However, as stated in Amica Mut. Ins. Co. v. Bagley, 28 Mass.App.Ct. 85, 90, 546 N.E.2d 184 (1989), "[a]lthough reading the words of an insurance policy, as any contract, in accordance with their ordinary meaning is a sound starting point for construction, that approach is less sound when, as here, the content of a...