Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co.

CourtMassachusetts Supreme Judicial Court
Writing for the CourtBefore TAURO; TAURO
Citation279 N.E.2d 686,361 Mass. 144
Decision Date10 February 1972
PartiesTRANSAMERICA INSURANCE COMPANY et al. 1 v. NORFOLK AND DEDHAM MUTUAL FIRE INSURANCE COMPANY et al. 2

Page 686

279 N.E.2d 686
361 Mass. 144
TRANSAMERICA INSURANCE COMPANY et al. 1
v.
NORFOLK AND DEDHAM MUTUAL FIRE INSURANCE COMPANY et al.
2
Supreme Judicial Court of Massachusetts, Suffolk.
Argued Nov. 5, 1971.
Decided Feb. 10, 1972.

[361 Mass. 145]

Page 687

Sumner H. Rogers, Boston, for defendant Norfolk and Dedham Mutual Fire Ins. Co.

Timothy H. Donohue, Boston, for plaintiffs.

Before [361 Mass. 144] TAURO, C.J., and CUTTER, QUIRICO and BRAUCHER, JJ.

[361 Mass. 145] TAURO, Chief Justice.

In this suit in equity for declaratory relief, the defendant Norfolk and Dedham Mutual Fire Insurance Company (Norfolk) appeals from a final decree, declaring that the plaintiff Peirce is an 'insured' under the noncompulsory coverage B of the defendant Wheatley's Massachusetts motor vehicle policy with Norfolk, and further declaring that a similar policy issued by the plaintiff Transamerica Insurance Company (Transamerica) to Peirce provided 'excess' coverage and was thus secondary to Norfolk's 'primary' coverage.

The pertinent facts as agreed to and found by the judge are as follows. On June 20, 1964, Wheatley sustained personal injuries while a passenger in his own car which was being operated with his consent by Peirce. Norfolk learned of the accident upon receipt of an accident report (dated June 26, 1964) from Wheatley's insurance agent on or about June 30, 1964. Wheatley brought suit against Peirce by writ dated September 1, 1964, and returnable the first Monday of October, 1964. Peirce's motor vehicle policy issued by Transamerica had a $100,000/$300,000 coverage. Wheatley had similar coverage with Norfolk. Transamerica mailed the summons served on Peirce to Norfolk. In turn, Norfolk mailed the summons back to Transamerica, together with a letter, dated October 16, 1964, stating its position that Wheatley's Norfolk policy was not valid and collectible insurance as to Peirce; that Norfolk would not enter an appearance in the suit; and that Transamerica might want to enter an appearance in [361 Mass. 146] order to avoid a default being entered against Peirce. Transamerica defended the action against Peirce and a verdict was returned for Wheatley in the amount of $18,000. After exceptions taken by Peirce were overruled in the Supreme Judicial Court (Wheatley v. Peirce, 354 Mass. 573, 238 N.E.2d 858), Transamerica satisfied in full the execution issued against Peirce for $22,693.23 and also paid $2,453.67 for legal services.

Norfolk raises three contentions on appeal: first, that the named insured, Wheatley, may not recover from his own insurer; second, that its coverage is not primary in reference to Transamerica's coverage; 3 and third, that Peirce did not comply with 'notice' requirements of its policy.

Page 688

1. Norfolk relies on MacBey v. Hartford Acc. & Indem. Co., 292 Mass. 105, 197 N.E. 516, and Oliveria v. Preferred Acc. Ins. Co., 312 Mass. 426, 45 N.E.2d 263, to support its contention that there can be no recovery against it by Wheatley, its named insured. In these cases, however, this court was construing the language of coverage A (compulsory motor vehicle insurance) rather than the language of coverage B (noncompulsory insurance) involved in the instant case. 4 The language of coverage A follows the statutory language of the Massachusetts compulsory liability insurance statute. G.L. c. 90, § 34A. 'In (the) MacBey . . . (case) we held after careful consideration that a motor vehicle liability policy as defined in . . . (this statute) did not cover liability for bodily injuries suffered by the named assured himself through the operation of the vehicle by another [361 Mass. 147] 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.' Oliveria v. Preferred Acc. Ins. Co., supra, at p. 427, 45 N.E.2d at p. 264.

In our view, the words 'by any person' in coverage B indicate an intention on the part of the insurer to provide broader coverage than is available under the more restrictive words 'to others' in coverage A. This construction is in accordance both with the plain and ordinary meaning of the words and with authority in other jurisdictions. Bachman v. Independence Indem. Co., 214 Cal. 529, 6 P.2d 943 (construing words, 'to any person or persons'). Farm Bureau Mut. Ins. Co. v. Waugh, 159 Me. 115, 188 A.2d 889 (construing words, 'by any person'). See Chicago Ins. Co. v. American So. Ins. Co., 115 Ga.App. 799,...

To continue reading

Request your trial
27 practice notes
  • Worcester Ins. Co. v. Fells Acres Day School, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 22, 1990
    ...Ins. Co. v. Tabor, 407 Mass. 354, 362, 553 N.E.2d 909 (1990), quoting Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144, 147, 279 N.E.2d 686 (1972). See Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 83, 469 N.E.2d 797 (1984). Thus, the homeowners' polic......
  • Blasing v. Zurich Am. Ins. Co., No. 2012AP858.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 17, 2014
    ...sustained while the car was operated by a permissive user), with Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144, 279 N.E.2d 686, 688 (1972) (holding that the omnibus clause's use of the words “ ‘by any person’ includes the insured”). 8. Courts “construe ambi......
  • Mahoney v. Am. Auto. Ins. Co., No. 12–P–163.
    • United States
    • Appeals Court of Massachusetts
    • October 3, 2013
    ...than optional coverage, but the converse is also sometimes true. See Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144, 147, 279 N.E.2d 686 (1972). The majority builds the foundation for its view that virtually identical language found in Part 1 and Part 5 of t......
  • Fin. Res. Network, Inc. v. Brown & Brown, Inc., Civil Action No. 09–11315–MBB.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 13, 2012
    ...claims rather than occurrences is frustrated.” Id. at 30. Citing Transamerica Ins. Co. v. Norfolk & Dedham Mutual Fire Insurance Co., 361 Mass. 144, 279 N.E.2d 686, 689–90 (1972), plaintiffs nevertheless argue that the August 31, 2005 email from Meiselman's attorney satisfies the 2004–2......
  • Request a trial to view additional results
27 cases
  • Worcester Ins. Co. v. Fells Acres Day School, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 22, 1990
    ...Mut. Ins. Co. v. Tabor, 407 Mass. 354, 362, 553 N.E.2d 909 (1990), quoting Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144, 147, 279 N.E.2d 686 (1972). See Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 83, 469 N.E.2d 797 (1984). Thus, the homeowners' poli......
  • Blasing v. Zurich Am. Ins. Co., No. 2012AP858.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 17, 2014
    ...injuries sustained while the car was operated by a permissive user), with Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144, 279 N.E.2d 686, 688 (1972) (holding that the omnibus clause's use of the words “ ‘by any person’ includes the insured”). 8. Courts “construe......
  • Mahoney v. Am. Auto. Ins. Co., No. 12–P–163.
    • United States
    • Appeals Court of Massachusetts
    • October 3, 2013
    ...than optional coverage, but the converse is also sometimes true. See Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144, 147, 279 N.E.2d 686 (1972). The majority builds the foundation for its view that virtually identical language found in Part 1 and Part 5 of the p......
  • Fin. Res. Network, Inc. v. Brown & Brown, Inc., Civil Action No. 09–11315–MBB.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 13, 2012
    ...claims rather than occurrences is frustrated.” Id. at 30. Citing Transamerica Ins. Co. v. Norfolk & Dedham Mutual Fire Insurance Co., 361 Mass. 144, 279 N.E.2d 686, 689–90 (1972), plaintiffs nevertheless argue that the August 31, 2005 email from Meiselman's attorney satisfies the 2004–2005 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT