Vergato v. Commercial Union Insurance
| Decision Date | 15 December 1999 |
| Docket Number | P-716 |
| Citation | 741 N.E.2d 486,50 Mass. App. Ct. 824 |
| Parties | (Mass.App.Ct. 2001) MARK VERGATO vs. COMMERCIAL UNION INSURANCE COMPANY. Docket No.: 98- |
| Court | Appeals Court of Massachusetts |
County: Essex.
Present: Beck, Dreben, & Rapoza, JJ.
Practice, Civil, Summary judgment. Contract, Insurance, Construction of contract. Insurance, Construction of policy, Motor vehicle insurance, Insured. Words, "Owner."
Civil action commenced in the Superior Court Department on December 19, 1996.
The case was heard by Thayer Fremont-Smith, J., on motions for summary judgment.
William P. Rose for the plaintiff.
Andre A. Sansoucy for the defendant.
The plaintiff filed a declaratory judgment action in Superior Court seeking a determination that Commercial Union Insurance Company (Commercial) owed him coverage for injuries suffered in a motor vehicle accident. The plaintiff and Commercial filed cross motions for summary judgment. Following the entry of judgment in favor of Commercial, the plaintiff appealed. We affirm.
Background.
In 1994, Gail Vergato (Vergato) owned a 1988 Ford Mustang that was listed on an automobile insurance policy she had purchased from Commercial.(1) She selected additional coverage under Part 5 of the policy entitled "Optional Bodily Injury to Others," with limits of $100,000 per person and $300,000 per accident. Vergato identified her husband and their three children as additional operators under the policy.
On August 16, 1994, Vergato's Ford Mustang was stolen and she subsequently rented a temporary replacement vehicle from Enterprise Rent-A-Car (Enterprise). Vergato designated herself as the operator of the vehicle in the rental agreement. She neither identified any additional drivers in the agreement nor purchased supplemental insurance from Enterprise. Nonetheless, Vergato permitted her children to drive the rental car. On September 10, 1994, her son, Mark Vergato (Mark), borrowed the rental car and went to a party. He consumed alcohol at the affair and, consequently, asked a friend who had not been drinking, Amber Kenney (Kenney), to drive for him. She agreed to do so, but lost control of the vehicle while driving, and struck a tree. Mark sustained serious injuries as a result of the accident. Commercial denied coverage on the ground that Kenney did not have Enterprise's consent to operate the rental car.
Both parties rely upon language contained in Part 5, first and second pars. of the insurance policy, which provides optional coverage for bodily injury to others:
Relevant to the application of Part 5 is the policy definition of "your auto," which, in pertinent part, reads:
"[5]. A. The vehicle or vehicles described on the Coverage Selection Page.
The plaintiff argues that coverage is provided by Part 5 "Optional Bodily Injury to Others," first par., because the Enterprise rental car was a temporary substitute vehicle within the meaning of "your auto" as that term is defined in the policy. Commercial, on the other hand, maintains that the last sentence of Part 5 "Optional Bodily Injury to Others," second par., precludes coverage because the owner of the rental car was Enterprise and Enterprise had not given its consent for either Kenney or Mark to operate the vehicle.
Discussion. "Summary judgment will be upheld when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" White v. Boston, 428 Mass. 250, 251-252 (1998), quoting from McDonough v. Marr Scaffolding Co., 412 Mass. 636, 638 (1992), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). In the absence of an express definition, the interpretation of contract language USM Corp. v. Arthur D. Little Sys., Inc., 28 Mass. App. Ct. 108, 116 (1989) (citations omitted). See Commerce Ins. Co. v. Koch, 25 Mass. App. Ct. 383, 386 (1988) (). We also note that, Aetna Cas. & Sur. Co. v. Sullivan, 33 Mass. App. Ct. 154, 156 (1992).
The plaintiff seeks a determination that he is owed coverage(2) in light of the language in Part 5 of Vergato's policy, which states, "We will also pay damages if someone else using your auto with your consent is legally responsible for the accident." The plaintiff asserts that the damages resulting from Kenney's use of Vergato's rental car fall within the scope of Vergato's policy, which defines "your auto" to include "[a]ny auto . . . used as a temporary substitute for the described auto while that auto is out of normal use because of breakdown, repair, servicing, loss or destruction." The policy also states that "your auto" does not include any substitute vehicle which is owned by the policyholder or the policyholder's spouse.
Vergato's insurance policy thus provides coverage in circumstances where a third party, with Vergato's consent, operates (1) a car that she owns which is listed on the coverage selection page of her policy, or (2) a car that she does not own which is a temporary substitute vehicle for the auto listed in her policy. Were our analysis to end here, we could conclude that the rental car involved in the accident was a temporary substitute vehicle and that, if Vergato had given permission to Kenney to operate the rental car, Commercial was bound to provide coverage for the injuries of Mark, the passenger.(3)
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