First Specialty Insurance v. Pilgrim Insurance
First Specialty Insurance v. Pilgrim Insurance
Opinion of the Court
The instant case involves a dispute between a general liability insurer, First Specialty Insurance Corporation (FSIC), and an automobile insurer, Pilgrim Insurance Company (Pilgrim), regarding the scope of an automobile exclusion in a commercial general liability insurance policy (CGL policy). By its express terms, this “exclusion applies even if the claims against any insured allege negligence ... in the supervision]:] [or] hiring[] ... of others by that insured, if the ‘occurrence’ which caused the ‘bodily injury’. . . involved the . . . use . . . of any . . . ‘auto’. . . owned or operated by . . . any insured.” The question presented is whether FSIC had a duty to defend
1. Background, a. Underlying facts. The facts of the underlying litigation are undisputed in this action. In 2007, Dennis Pinto had been diagnosed with dementia. Pinto’s family contracted with R. Squared Enterprises, Inc. (R. Squared), to provide nonmedical support services to Pinto. Starting on October 17, 2007, R. Squared assigned Kimberly Pereira to work with Pinto. The following day, Pereira drove Pinto to a restaurant for lunch in an automobile owned by Pinto’s wife. While at the restaurant, Pereira consumed alcohol, allegedly becoming intoxicated, and she thereafter drove negligently. She crashed the automobile into a tree, and Pinto suffered serious injuries. R. Squared had policies in place to require background checks of prospective hires, including their criminal and driving records. Under those policies, Pereira should not have been hired because she previously had been convicted twice of alcohol-related offenses.
Pinto’s family sued Pereira, R. Squared, and others associated with R. Squared, eventually naming as defendants R. Squared’s
b. Insurance policies. At all relevant times, R. Squared was the named insured on a Pilgrim business automobile insurance policy. That policy included coverage for automobiles owned by others. It is undisputed that this policy covered Pereira while using Pinto’s wife’s automobile. The Pilgrim policy also provided that anyone qualified as an insured if they were “liable for the conduct of [another] ‘insured’ . . . but only to the extent of that liability.” See Society for Christian Activities, Inc. v. Markel Ins. Co., 56 Mass. App. Ct. 190, 193 & n.9 (2002), S.C., 440 Mass. 1006 (2003) (dealing with identical language).
R. Squared also held a CGL policy with FSIC. The CGL policy covers liability for bodily injuries to third parties stemming from accidents in general. All of the R. Squared defendants are insureds under the CGL policy. However, the CGL policy also contains an automobile exclusion, of particular relevance here, which is set forth in the margin.
c. The instant action. In March, 2010, FSIC filed this action against Pilgrim, seeking a judgment declaring that it had no obligation to defend or indemnify the R. Squared defendants, and consequently that Pilgrim had no right to contribution or subrogation from FSIC. Soon after the Pinto suit settled, Pilgrim filed opposing counterclaims for equitable contribution and subrogation. On cross motions for summary judgment, the motion judge ruled in favor of FSIC and entered judgment accordingly.
2. Discussion. We review the motion judge’s ruling on summary judgment de nova. See Miller v. Cotter, 448 Mass. 671, 676 (2007). “We ask whether the evidence, in the light most favorable to the party losing the contest of cross motions, and the controlling law entitle the prevailing party to judgment. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991); DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66, 70 (2007). As with contracts generally, the interpretation of the unambiguous terms of an insurance policy is a matter of law for the trial court and then the reviewing court. See Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146 (1982); Clendenning v. Worcester Ins. Co., 45 Mass. App. Ct. 658, 660 (1998).” Audubon Hill S. Condominium Assn. v. Community Assn. Underwriters of America, Inc., 82 Mass. App. Ct. 461, 465 (2012). An ambiguous term in a policy will be construed against the insurer, but “[a] term is ambiguous only if it is susceptible of more than one meaning and if reasonably intelligent persons would differ over the proper meaning.” Suffolk Constr. Co. v. Illinois Union Ins. Co., 80 Mass. App. Ct. 90, 94 (2011). See Shamban v. Worcester Ins. Co., 47 Mass. App. Ct. 10, 16 (1999) (Shamban).
As an insurer’s duty to defend is broader than its duty to
In interpreting FSIC’s automobile exclusion, see note 3, supra, we do not write on a blank slate. The Marnell case construed a homeowner’s insurance policy containing an automobile exclusion, not materially different from the first paragraph of FSIC’s automobile exclusion, disclaiming coverage if a motor vehicle was owned or operated by “any insured.” 398 Mass. at 242. In Marnell, the underlying complaint alleged that the parents permitted their son Michael to have a party at their house, knowing that, although he was underage, he would drink alcohol, “that [Michael] left the party in an intoxicated condition, and that, while operating his motor vehicle in a negligent manner, he struck and killed the intestate.” Id. at 241. The parents were named insureds under the homeowner’s policy, and the son was an unnamed insured. Id. at 242. The son, not the parents, owned and operated the vehicle. Ibid. The essential theory of liability against the parents was negligent supervision of their son. Id. at 241.
The Marnell court held that “without the severability provision a literal reading of the motor vehicle exclusion by itself precludes the [parents] from coverage under the policy because [the son], an insured, owned and operated the motor vehicle involved in the fatal accident. But the severability of insurance clause makes coverage available to [the parents] nonetheless.”
This court further explained the Marnell rule in Shamban, 47 Mass. App. Ct. at 13-16. The underlying facts in Shamban were that a fifteen year old boy on his dirt bike crashed into a friend, and the friend sued the boy’s parents for negligent supervision. Id. at 10-11. The same insurer as in Marnell, applying much the same policy language, declined to defend based on the motor vehicle exclusion. Id. at 11-13 & n.4, 14 n.7. We held that “[u]nder Marnell it makes a difference whether the insured who is sued in the third-party action did or did not own the vehicle involved in the accident.”
In this case, Pilgrim argues that Marnell and Shamban mandate coverage for the R. Squared defendants under FSIC’s CGL policy. If the automobile exclusion contained only the first paragraph, which is similar to those at issue in Marnell and Shamban, that might be true. Cf. Ayer v. Imperial Cas. & Indem. Co., 418 Mass. 71, 73-74 (1994), quoting from Merrimack Mut. Fire Ins. Co. v. Sampson, 28 Mass. App. Ct. 353, 358 (1990). However, the exclusion in the FSIC policy, see note 3 supra, contains a second paragraph that addresses this precise situation. See Rhoades vs. Massachusetts Property Ins. Underwriting Assn., supra, slip op. at 10 n.5 (noting that a similar provision “appears . . . designed precisely to exclude coverage for any negligent supervision claims which might be raised under a Marnell theory”). That paragraph states that the automobile exclusion “applies even if the claims against any insured allege negligence ... in the supervision!] [or] hiring[] ... of others by that insured,” if the underlying claim involves an automobile “that is owned or operated by . . . any insured!” (emphasis supplied). In Marnell, the court construed a reference to “any insured,” in light of the severability clause, to refer only to each insured who was sued. Marnell, 398 Mass. at 244-245. However, the policy at issue in Marnell did not have this second paragraph. Indeed, the second paragraph appears to be a response to the issues raised in cases like Marnell. See Rhoades vs. Massachusetts Property Ins. Underwriting Assn., supra.
When read carefully, the second paragraph clearly envisions that two different insureds are involved. That paragraph excludes coverage if (1) claims are brought against “any insured” alleging negligent supervision or hiring of others by “that insured,” and (2) the occurrence underlying those claims involved an automobile owned or operated by “any insured.” If these two clauses of the second paragraph refer to the same person, as Pilgrim would have it, the second paragraph would add nothing to the first, and would make little sense. Under this interpreta
With this interpretation in mind, we compare the allegations of the complaint with the policy terms. See Quincy Mut. Fire Ins. Co. v. Crispo, 80 Mass. App. Ct. 484, 488 (2011). The direct claim for negligence against Pereira obviously falls within the automobile exclusion. See Merrimack Mut. Fire Ins. Co. v. Sampson, 28 Mass. App. Ct. at 358. Any claims seeking to impose vicarious liability on the R. Squared defendants for Pereira’s negligence are also excluded, as they are not “separate and distinct from the use or operation of an automobile.” Marnell, 398 Mass. at 245. See Society for Christian Activities, Inc. v. Markel Ins. Co., 440 Mass. at 1006-1007. The remaining claims against the R. Squared defendants, for negligent hiring, negligent supervision, and the like, clearly fall within the second
This result also comports with the allocation of risks and payment of premiums among policies purchased by R. Squared. R. Squared obtained an automobile policy from Pilgrim and a CGL policy from FSIC. The automobile policy was drafted broadly enough to provide that anyone qualified as an insured if they were “hable for the conduct of [another] ‘insured.’ ” The CGL policy, in contrast, contained a broad automobile exclusion. Contrast Marnell, 398 Mass. at 242; Cherokee Ins. Co. v. Babin, 37 So. 3d 45, 49-50 (Miss. 2010) (finding factual issue as to CGL insurer’s liability where endorsement removed second paragraph from identical automobile exclusion). The policies thereby complemented each other, and the premiums for each policy reflected the extent of the coverage each provided. R. Squared did not plan or pay for overlapping policies.
To insure itself for injuries arising out of automobile accidents, R. Squared relied on its automobile, not its general liability policy. “Were we to conclude that the [automobile] exclusion did not apply, we would in effect allow the general liability policy to provide additional insurance [for injuries arising out of automobile accidents] without a premium.” Society for Christian Activities, Inc. v. Markel Ins. Co., 440 Mass. at 1007. Our holding that there was no overlap between the Pintos’ claims arising out of the automobile accident and FSIC’s coverage therefore comports with the economic decisions made by the insured and “supports the proper allocation of risks between an insured’s [general liability] policy and automobile insurance,” Ibid., quoting from Phoenix Ins. Co. v. Churchwell, 57 Mass. App. Ct. at 616 (alteration in original).
3. Conclusion. FSIC’s policy, unlike those in Marnell and Shamban, clearly communicated that the types of harm suffered by the Pintos fell outside the scope of its coverage. Indeed, the policy language appears intended to address the interpretive issues raised in those cases. Therefore, FSIC owed no duty to the
Judgment affirmed.
In light of the result we reach, we need not address FSIC’s alternative argument that it cannot be responsible for equitable contribution in the absence of an apportionment of the settlement paid by Pilgrim among the various claims in the underlying litigation.
Another corporation and an individual (Sandra Smith, a former employee of R. Squared) were also named as defendants.
The CGL policy’s automobile exclusion states that the insurance does not apply to the following:
“ ‘Bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and ‘loading or unloading’.
“This exclusion applies even if the claims against any insured allege*815 negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the ‘occurrence’ which caused the ‘bodily injury’ or ‘property damage’ involved the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft that is owned or operated by or rented or loaned to any insured.”
Pilgrim reads too much into this statement, asserting that our cases “draw a distinction between negligent supervision claims where the insured owns the vehicle involved in the accident, wherein there is no General Liability coverage, and those where the insured does not own the vehicle, wherein there is General Liability coverage.” Even if the cases have tended to follow that factual pattern, they depend on the particular policy language at issue. It does not follow that the exclusion only applies to those who own the vehicle
Case-law data current through December 31, 2025. Source: CourtListener bulk data.