Roe v. Lawn

• Decision Date: 09 June 1994
• Parties: , 91 Ed. Law Rep. 311 Mary ROE 1 v. Edward J. LAWN & others 2 ; Aetna Casualty and Surety Company & Others, 3 Third-Party Defendants.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 117

634 N.E.2d 117

418 Mass. 66, 91 Ed. Law Rep. 311

Mary ROE ¹ v. Edward J. LAWN & others ² Aetna Casualty and Surety Company & Others, ³ Third-Party Defendants.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Jan. 6, 1994.

Decided June 9, 1994.

J. Michael Conley, Braintree (Paul F. Kenney with him), for plaintiff.

John P. Graceffa, Boston, for Aetna Cas. and Sur. Co., submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

At issue is whether a sexual assault occurring within a vehicle owned and operated by a common passenger carrier and committed by an employee of that carrier on a passenger should be deemed to have arisen out of the "ownership, maintenance or use" of that vehicle.

1. Background. The plaintiff, a minor and a special needs student, alleges that she was sexually assaulted by Edward J. Lawn, the driver of a school bus owned by Braintree Town Taxi, Inc. (Town Taxi). The plaintiff commenced this action by suing Town Taxi for breach of its nondelegable duty as a common carrier to ensure passenger safety. Town Taxi then brought a third-party action to require its insurer, Aetna Casualty and Surety Company (Aetna), to defend and indemnify Town Taxi with respect to the plaintiff's claim pursuant to the business motor vehicle policy which Aetna issued to Town Taxi. Under the terms of this policy, Aetna agreed to pay "all sums which [Town Taxi] shall become legally obligated to pay as damages because of bodily injury, sustained by any person, caused by accident and arising out of the ownership, maintenance or use including loading and unloading, of the insured motor vehicle." The policy provides that assault and battery "shall be deemed an accident unless committed by or at the direction of [Town Taxi]." Lawn's assault on the plaintiff was not committed by or at the direction of Town Taxi. Nevertheless, the Superior Court judge allowed Aetna's summary judgment motion on the ground that Town Taxi's liability with respect to the assault did not arise out of its ownership, maintenance, or use of the insured motor vehicle. The Appeals Court reversed, holding that the assault arose from the use of the school bus because it occurred within the bus and in the course of the performance of the taxi company's duty to transport the plaintiff. See Roe v. Lawn, 34 Mass.App.Ct. 726, 729-730, 615 N.E.2d 944 (1993). We granted Aetna's application for further appellate review. We think the Appeals Court reached the correct result. We reverse the judgment of the Superior Court.

2. Did the assault arise from the use of the school bus? In Dotts v. Taressa J.A., 182 W.Va. 586, 390 S.E.2d 568 (1990), the Supreme Court of Appeals of West Virginia stated the general rule: "Assaults committed on passengers by employees of a bus or taxicab company are usually considered as arising out of [the] ownership, maintenance or use of the vehicle." Id. at 593, 390 S.E.2d 568, quoting 6C J. Appleman & J. Appleman, Insurance Law and Practice § 4468, at 639 (1979). See Huntington Cab Co. v. American Fidelity & Casualty Co., 155 F.2d 117, 120 (4th Cir.1946) ("[the] terms [ownership, maintenance or use] do not ... require that the automobile itself produce the injury.... They are equally satisfied if the injury is incidental to or grows out of the relationship of carrier and passenger which in this form of transportation necessitates personal dealings and contact between the driver and the passenger in the use of the cab. Whether the driver inflicts an injury upon the passenger by reckless management of the vehicle, or so forgets his duty to carry the passenger safely as to inflict an injury upon him by physical violence, in either case the injury is made possible and derives from the use of the cab"); Nassau Ins. Co. v. Mel Jo-Jo Cab Corp., 102 Misc.2d 455, 463, 423 N.Y.S.2d 813 (N.Y.Sup.Ct.), aff'd, 78 A.D.2d 549, 432 N.Y.S.2d 29 (1980) ("Inherently, 'ownership' of a business of carrying passengers in a motor vehicle entails providing protection to the traveling public not only from injury inflicted by its driver's reckless management of the vehicle, but also from its driver's physical violence to the passenger"). See also Butler v. Sequeira, 100 Cal.App.2d 143, 147, 223 P.2d 48 (1950); Connell v. Clark, 88 Cal.App.2d 941, 950, 200 P.2d 26 (1948); Maryland Casualty Co. v. Baker, 304 Ky. 296, 303-304, 200 S.W.2d 757 (1947); Suburban Serv. Bus Co. v. National Mut. Casualty Co., 237 Mo.App. 1128, 1132-1133, 183 S.W.2d 376 (1944); Mironov v. New York Mut. Underwriters, 147 A.D.2d 761, 763, 537 N.Y.S.2d 345 (N.Y.1989); Green Bus Lines v. Ocean Accident & Guar. Corp., 287 N.Y. 309, 314-316, 39 N.E.2d 251 (1942).

In Aetna Casualty & Sur. Co. v. United States Fidelity & Guar. Co., 806 F.2d 302 (1st Cir.1986), the United States Court of Appeals for the First Circuit interpreted Massachusetts law as providing that a school bus driver's sexual assault on a child he was transporting to school should not be deemed to have arisen out of the ownership, maintenance, or use of the school bus. In reaching this conclusion, the court relied on our decisions in LaPointe v. Shelby Mutual Ins. Co., 361 Mass. 558, 281 N.E.2d 253 (1972), and Sabatinelli v. Travelers Ins. Co., 369 Mass. 674, 341 N.E.2d 880 (1976).

Our decisions in LaPointe, and Sabatinelli, supra, essentially provide that there must be a causal connection between a motor vehicle's use and an injury for the injury to be deemed to have arisen out of the ownership, maintenance, or use of the motor vehicle. See LaPointe, supra 361 Mass. at 563-564, 281 N.E.2d 253; Sabatinelli, supra 369 Mass. at 677, 341 N.E.2d 880. In LaPointe supra, we determined that an explosion caused by a...