Santos v. Lumbermens Mut. Cas. Co.
| Citation | 556 N.E.2d 983,408 Mass. 70 |
| Parties | Gregory A. SANTOS et al. 1 v. LUMBERMENS MUTUAL CASUALTY COMPANY. |
| Decision Date | 16 July 1990 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Paul J. Driscoll, Marshfield, for plaintiffs.
Stephen M.A. Woodworth, Brockton, for defendant.
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.
In this case, we answer four reported questions involving underinsured motorist coverage under two separate automobile insurance policies.
The parties have stipulated to the following facts. On May 11, 1985, Gregory A. Santos, II, the four-year-old son of Gregory A. Santos and Renee Santos, while riding a three wheel "big-wheel" bike, was struck and killed by a 1977 Ford Granada automobile owned and operated by Anna A. Durling. Durling's insurance policy, issued by Fireman's Fund Insurance Company (Fireman's), provided mandatory coverage for bodily injury to others in the amounts of $10,000 per person and $20,000 per accident. The plaintiffs negotiated a settlement with Fireman's, assented to by the defendant Lumbermens Mutual Casualty Company (Lumbermens), in which the plaintiffs received $20,000. That sum is insufficient to cover the amount of damages sustained by the plaintiffs.
Gregory Santos' 1983 Ford Ranger automobile was covered at the time of the accident by a Massachusetts automobile insurance policy issued by the defendant Lumbermens. The policy, effective October 1, 1984, provided coverage of up to $100,000 per person and up to $300,000 per accident for injury to Gregory Santos or to any member of his household caused by an uninsured or underinsured automobile. Gregory Santos paid an annual premium of $36 for this underinsurance coverage. Renee Santos had a separate insurance policy with Lumbermens at the time of the accident (effective January 1, 1985), covering her 1979 Oldsmobile Cutlass automobile, and also providing uninsured or underinsured coverage of $100,000 maximum per person and $300,000 maximum per accident, for which she paid an annual premium of $40. 2
Gregory Santos and Renee Santos demanded $300,000 under each insurance policy issued by Lumbermens. After Lumbermens refused to tender the $600,000, the plaintiffs made proper demand for arbitration, asserting claims for the conscious pain and suffering of their son; for consortium-like damages of the next of kin under the wrongful death statute; for punitive damages due to the gross negligence of Anna A. Durling; and for funeral and burial expenses. See G.L. c. 229, § 2 (1988 ed.). After certain coverage issues, which form the basis of this case, arose during the arbitration proceeding, the plaintiffs commenced this action in the Superior Court for Plymouth County under the Declaratory Judgment Act, G.L. c. 231A (1988 ed.). The judge reported this case to the Appeals Court. We granted the parties' joint application for direct appellate review.
The following are the reported questions:
1. Whether and to what extent the $100,000 "per person," $300,000 "per accident," underinsurance coverage provided under the automobile insurance policy issued by Lumbermens to Renee Santos effective January 1, 1985, upon her 1979 Oldsmobile motor vehicle may be "stacked" with or upon the $100,000 "per person," $300,000 "per accident," underinsurance coverage provided under the automobile insurance policy issued by Lumbermens to Gregory A. Santos effective October 1, 1984, upon his 1983 Ford motor vehicle.
2. In an action for wrongful death arising out of a motor vehicle accident commenced by the administrator of the decedent's estate under G.L. c. 229 (1988 ed.), for purposes of determining the amounts of underinsurance coverage available under the applicable standard 1984 and 1985 Massachusetts Automobile Insurance policies (with the mandatory endorsements), when and to what extent is the administrator considered to be a separate "person" in his presentation and prosecution of:
(a) the claim of decedent's estate under G.L. c. 229, § 2(2), for funeral and burial expenses;
(b) the claim of decedent's estate under G.L. c. 229, § 2(3), for punitive damages in such case where a decedent's death was caused by the reckless conduct or gross negligence of the underinsured tortfeasor;
(c) the claim of decedent's estate under G.L. c. 229, § 6, for decedent's conscious pain and suffering prior to his death; and
(d) the claim of decedent's next of kin under G.L. c. 229, § 2(1), for consortium-like damages.
3. Whether the underinsurance provisions of the two automobile insurance policies applicable here provide coverage for an award of punitive damages made under G.L. c. 229, § 2(3), as a result of the recklessness or gross negligence of the underinsured tortfeasor, Anna A. Durling.
4. Whether the defendant Lumbermens is subrogated under the policies to any sums that the plaintiffs may recover from third-party nonmotorist tortfeasors due to underinsurance coverage payments that Lumbermens may make to the plaintiffs under the policies in excess of the $10,000 compulsory underinsurance coverage of G.L. c. 175, § 113L (1988 ed.), and the $15,000 mandatorily-offered optional additional underinsurance coverage of G.L. c. 175, § 113C (1988 ed.).
1. Stacking. Lumbermens rightly concedes that the plaintiffs are entitled to "stack" 3 the combined underinsurance coverages per person under each policy at least up to $125,000. 4 Lumbermens contends, however, that the plaintiffs may not stack the $100,000 per person benefits of Gregory Santos' policy with the $100,000 per person benefits of Renee Santos' policy, or Gregory Santos' $300,000 per accident benefits with Renee Santos' $300,000 per accident benefits. We disagree.
Lumbermens argues that the "anti-stacking" exclusion in the policy prohibits the plaintiffs from recovering more than $125,000 per injured person. The exclusion provides: 5
"[W]hen there is no ambiguity, we will construe the words of an insurance policy according to their ordinary meaning." Cardin v. Royal Ins. Co., 394 Mass. 450, 453, 476 N.E.2d 200 (1985). The anti-stacking exclusion is unambiguous. In the "Introduction" portion of each policy, the word "you" is defined as follows: "This insurance policy is a legal contract between the policy-owner (you) and the company (we or us)." The "Definitions" portion of each policy provides: "You or Your--refers to the person named on the Coverage Selections Page." Each policy contained a name on the coverage selections page, just after the phrase "this policy is issued to." "You," then, refers to the owner of each policy. See Manning v. Fireman's Fund Am. Ins. Cos., 397 Mass. 38, 41 & n. 2, 489 N.E.2d 700 (1986). The word "have" connotes ownership. Busteed v. Cambridge Savs. Bank, 306 Mass. 9, 14, 26 N.E.2d 983 (1940). "You may have two or more auto policies with us" thus refers to a situation where one policy owner holds two or more policies with Lumbermens. Such is not the case here.
The policy covering the Ford automobile listed Gregory A. Santos on the Coverage Selections Page, and the policy covering the Oldsmobile automobile listed Renee Santos. Each policy provided $100,000 maximum per person underinsurance coverage, for which each named insured paid a separate premium. Each policy is a separate obligation by Lumbermens to pay up to the stated coverage amounts in the event of an accident to a covered person. 6
At the time of the accident, G.L. c. 175, § 113L, did not prohibit stacking the underinsurance benefits of two separate policies. 7 The coverage at issue here was "purely optional and thus entirely a matter of contract." Johnson v. Hanover Ins. Co., 400 Mass. 259, 266, 508 N.E.2d 845 (1987). Woodman v. Hartford Accident & Indem. Co., 27 Mass.App.Ct. 1120, 1122, 537 N.E.2d 601 (1989). The Santoses each contracted with Lumbermens for $100,000 maximum per person underinsurance coverage, and nothing prohibits them from stacking their benefits under each policy. 8
2. "Per person" limitation. We now consider, under the terms of each policy, when and to what extent the administrator in the wrongful death action may be considered a separate "person" with respect to the various claims in the case.
We first examine the policy of Gregory A. Santos, issued in 1984. We recite the relevant language from the policy: 9 Lumbermens contends that, in a wrongful death action, there is only one "person" to whom it must pay for injuries--namely, the administrator. We disagree.
Under the wrongful death statute, G.L. c. 229, § 2, a "personal representative" may bring an action "on behalf of the designated categories of beneficiaries." Gaudette v. Webb, 362 Mass. 60, 71, 284 N.E.2d 222 (1972). General Laws c. 229, § 2, states in pertinent part: "A person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person ... shall be liable in damages in the amount of: (1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered; (2) the reasonable funeral and burial expenses of the decedent; (3) punitive damages in an amount of not less than five thousand dollars in such case as the decedent's death was caused by the malicious,...
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