Mahoney v. American Automobile Insurance Company (Lawyers Weekly No. 11-070-13)

AGNES, J. (dissenting).  Does an insured have a right to indemnification under her parents’ automobile liability policy for her negligent entrustment of a rental vehicle to an unauthorized operator who causes a collision?  The majority says “no” because Part 5 of the policy, entitled “Optional Bodily Injury to Others” (Part 5), requires that the particular operation of the vehicle must be “with the consent of the owner.”  However, use with the “permission of the owner,” a phrase appearing in Part 1 of the policy governing compulsory insurance for bodily injury to others, has been interpreted consistently to require no more than that the insured was authorized by the owner to use the vehicle.  In this case, the insured was authorized by Hertz Rental Corporation (Hertz) to use the rental car, and thus her negligence in allowing an unauthorized person to operate it is not a bar to her indemnification.  Accordingly, I respectfully dissent.

1.  Additional background.  There is no dispute that at the time of the injuries suffered by the plaintiff, Wayne Mahoney, a standard Massachusetts automobile insurance policy approved by the Commissioner of Insurance and issued by American Automobile Insurance Company (AAIC) to Thomas and Sandra Joyce (Joyces) was in effect.  It is also undisputed that the Joyces selected optional coverage under Part 5 of the policy, which state in part as follows:

“Under this Part, we will pay damages to people injured or killed in accidents if you or a household member is legally responsible for the accident.  We will also pay damages if someone else using your auto with your consent is legally responsible for the accident.  The damages we will pay are the amounts the injured person is entitled to collect for bodily injury through a court judgment or settlement.

“This Part is similar to Compulsory Bodily Injury to Others (Part 1).  Like the Compulsory Part, this Part pays for accidents involving your auto in Massachusetts.  Also like the Compulsory Part, this Part does not pay for the benefit of anyone using an auto without the consent of the owner.“

At all relevant times, Jennifer Hill was a member of the Joyces’ household.  Hill was “legally responsible for the accident” within the meaning of Part 5 because a judgment entered against her in a personal injury action brought by Mahoney served as conclusive evidence that she acted negligently in entrusting the rental car to Ellen Teague and that Hill’s negligence was a substantial contributing cause of the collision with Mahoney’s vehicle.  Although the second sentence of Part 5, first par., states that “this Part pays for accidents involving your auto,” coverage under Part 5 is broader than coverage under Part 1 in the sense that it is not limited to accidents involving the insured’s automobile.  See, e.g., Massachusetts Insurers Insolvency Fund v. Safety Ins. Co., 439 Mass. 309, 314 n.8 (2003) (explaining Part 5 coverage included insured’s operation of rental truck).  See also Gleed v. Aetna Cas. & Sur. Co., 418 Mass. 503, 509 (1994).

2.  Discussion.  a.  Consent to use.  In a number of cases, the Supreme Judicial Court has reasoned that “[r]esponsibility for operation of the motor vehicle accompanying possession conferred by the owner is the test [for indemnification], not whether the particular operation was with the express or implied consent of the owner.”  O’Roak v. Lloyds Cas. Co., 285 Mass. 532, 538 (1934).  Accord Hurley v. Flanagan, 313 Mass. 567, 571-572 (1943).  This interpretation of “consent of the owner” is sometimes referred to as the “initial permission rule,“ and is illustrated by Boudreau v. Maryland Cas. Co., 287 Mass. 423, 426 (1934), a case on which Mahoney specifically relies.

In Boudreau, Blanche Kelley had given the use of her car to her son and another person named Dwyer.  In doing so she expressly instructed Dwyer, who held a driver’s license, not to permit her son, a minor who was unlicensed, to drive.  Dwyer nevertheless allowed her son to drive the car.  While Dwyer was riding in the back seat and Kelley’s son was driving, the son struck another vehicle, injuring the plaintiffs and causing property damage to their vehicle.  The plaintiffs sought to require Kelley’s insurer to pay the damages they recovered against Dwyer.  In opposing the plaintiffs’ claims, the insurer maintained that Dwyer was not responsible for the operation of the vehicle with the insured’s consent because he disobeyed the express instruction of the owner not to let her son drive.  In rejecting this argument, the Supreme Judicial Court noted:

“In the present case the responsibility for the operation of the automobile was placed upon Dwyer by the owner.  ‘His disobedience did not destroy his responsibility.’  That responsibility continued and was existent at the time the plaintiffs received their injuries.  Under a policy issued pursuant to the compulsory motor vehicle insurance law, it is the existence of the responsibility for the operation of a motor vehicle, not the authority for the particular operation at the time of an accident, which fixes the insurer’s liability to indemnify a person other than the owner for the consequences of negligent operation.”

Id. at 426, quoting from Guzenfield v. Liberty Mut. Ins. Co., 286 Mass. 133, 137 (1934).

b.  Compulsory and optional coverage.  Compulsory coverage, unlike optional coverage, is mandatory, see G. L. c. 90, § 34A, and is designed primarily to serve a public purpose, namely, to protect innocent travelers on our roadways, in addition to providing protection to the insured.  See Metropolitan Property & Cas. Ins. Co. v. Santos, 55 Mass. App. Ct. 789, 797 (2002), and cases cited.  See also G. L. c. 231, § 85C.  In some respects, compulsory coverage is broader 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 (1972).

The majority builds the foundation for its view that virtually identical language found in Part 1 and Part 5 of the policy should be read differently by quoting language from Flattery v. Gregory, 397 Mass. 143, 150 (1986), out of context.  In Flattery, the Supreme Judicial Court held that the plaintiff, an injured motorist whose vehicle was struck by a vehicle operated and owned by the defendant, was the intended beneficiary of a contract between the defendant and his insurance agent, who had failed to honor his promise to obtain optional liability insurance coverage for the defendant in the amount of $ 100,000 per person and $ 300,000 per accident.  As a result, at the time of the accident the defendant had only compulsory coverage in the amount of $ 20,000 per person and $ 40,000 per accident.  The plaintiff recovered a judgment against the defendant in the amount of $ 118,181.99.  The majority, ante at   , quotes this excerpt from Flattery:

“We have said many times that the primary purpose of compulsory automobile liability insurance is protection of travelers on the highway. . . .  That recognition has led us to treat similar policy provisions differently depending on whether they pertain to compulsory or to optional insurance.”

397 Mass. at 150.  However, the remainder of that paragraph reads as follows:

“But the fact that the Legislature’s purpose in enacting the compulsory motor vehicle insurance law is to protect travelers does not warrant the conclusion urged on us by the defendant that ‘the purpose of non-compulsory coverage is to protect insureds’ (emphasis added).  General Laws c. 175, § 113 (1984 ed.), gives an injured highway traveler who has recovered a judgment against the party responsible for his injuries the right to collect directly from the tortfeasor’s insurer the amount of the judgment up to the limits of the tortfeasor’s compulsory and optional insurance.  See Blair v. Travelers Ins. Co., 291 Mass. 432, 435-436 (1935).  That provision displays the Legislature’s view that injured highway travelers are intended beneficiaries of optional automobile liability insurance” (emphasis added).

Ibid.  Flattery thus supports the view that notwithstanding differences between compulsory and optional coverage in automobile insurance policies, the public policy of the Commonwealth, which favors a broad reading of the terms of compulsory coverage under Part 1 in order “to protect travelers on the highway from injury by motor vehicles,” see Dickinson v. Great Am. Indemn. Co., 296 Mass. 368, 372 (1937), applies to comparable terms defining optional coverage under Part 5.

The compulsory coverage part of a Massachusetts automobile liability insurance policy must conform to G. L. c. 90, § 34A.  To ensure that such policies sold in Massachusetts conform to the statutory requirements, insurers must submit them to the Commissioner of Insurance for approval.  See G. L. c. 175, §§ 22A, 113A.  However, with regard to optional coverage such as that contained in Part 5, Massachusetts law only requires the insurer to offer additional coverage of $ 15,000 per person and $ 40,000 per accident.  See G. L. 175, § 113C.  See also Commerce Ins. Co. v. Koch, 25 Mass. App. Ct. 383, 387 (1988).

The majority opinion rests on an artificial and unwarranted distinction between compulsory and optional insurance that ignores the actual terms of the policy.  According to the majority, an operator uses a vehicle “with the express or implied permission” of the owner, for purposes of triggering compulsory coverage under Part 1 of the policy, so long as he has “authority to operate” or “the right to possession.”  See ante at   , citing Liberty Mut. Ins. Co. v. Tabor, 407 Mass. 354, 360 (1990).  However, the majority maintains that for optional coverage to apply at the time of the accident, the actual operation of the vehicle must conform specifically to the terms of the consent or permission of the owner.  Yet, no such distinction was made in Tabor, where the Supreme Judicial Court held that the driver-renter of the vehicle operated it with the consent of the owner and was entitled to indemnification beyond the compulsory insurance limits even though she violated her contract with the rental company by operating the vehicle while under the influence of alcohol.  Id. at 359-362.

There is no basis to read restrictions into a policy of insurance that are not there.  See White v. American Cas. Ins. Co., 53 Mass. App. Ct. 66, 68 (2001), quoting from 8 Couch, Insurance § 119.37 (3d ed. 1997) (“[t]he term ‘use’ must be understood in its most comprehensive sense”).  We should assign the same meaning to words appearing in the Part 5 optional coverage section as we assign to comparable words in the Part 1 compulsory coverage section.  See Cohen v. Liberty Mut. Ins. Co., 41 Mass. App. Ct. 748, 755 n.6 (1996) (“Additional optional bodily injury coverage merely increases the potential amount an injured party can recover while offering the same protection as compulsory coverage”).

c.  The “initial permission rule” governs the meaning of “consent” in Part 5.  In Blair v. Travelers Ins. Co., 288 Mass 285, 290 (1934), the Supreme Judicial Court relied on the “initial permission rule,” see note 4 and accompanying text, supra, in circumstances that are instructive.  The court explained that the estates of Daniel Garvey and Henrietta Blair, respectively the party killed and the party injured in a motor vehicle collision as a result of the negligence of one Perreault, who was operating a motor vehicle owned by Toren which had been lent to Dion, could recover damages from Toren’s insurer because Dion had Toren’s authority to use the vehicle.  Indemnification on behalf of Dion was proper, the court stated, even though his actual use was contrary to the instructions given to him by Toren.  Ibid.  The plaintiffs brought an equitable action against Toren’s insurer and recovered a judgment of $ 8,535.41 plus costs.  In reversing the judgment, the Supreme Judicial Court explained that the plaintiffs were entitled to collect up to the limits of the compulsory insurance law from Toren’s insurer, but without evidence of the availability of optional coverage, the judgment could not stand.  Id. at 290-291.

The following year, in Blair v. Travelers Ins. Co., 291 Mass. 432 (1935) (Blair II), the Supreme Judicial Court revisited the case.  On remand, it was determined that Toren did have optional coverage in an amount twice as great as his compulsory coverage.  Optional coverage was available to the named “assured” and to “any other person” provided he or she was “legally using” the vehicle “with the permission of the named Assured.”  Id. at 435.  The court explained that insofar as optional coverage goes beyond the limits of compulsory coverage “as to territory, amount, circumstances of operation, or other particulars, the obligation of the defendant is measured exclusively by the words of Section B.”  Ibid.  In this regard, the court found that the term “assured” was defined quite differently in Part A of the policy (compulsory coverage) than in Part B of the policy (optional coverage).

“Section B does not provide, as does Section A, that the word ‘Assured’ shall include any person ‘responsible for’ the ‘operation’ of the automobile with the ‘express or implied consent’ of the owner.  It provides, instead, that the word ‘Assured’ shall include any person ‘while legally using’ the automobile, provided ‘such use’ is with the permission of the owner.  Was Dion an ‘Assured’ within that definition?  Toren had given no permission for a pleasure ride on Sunday evening, although he had not expressly forbidden it.  Such a ride was not within the express or implied purposes of the bailment, nor incidental to them, but amounted to a conversion of the automobile.”

Id. at 436.  Since Dion met the definition of an “assured” for purposes of the compulsory part of the policy, the plaintiffs were entitled to recover up to the statutory limits, but because Dion did not meet the definition of an “assured” under the optional part of the policy, the plaintiffs could not access any of that additional coverage.  Id. at 436-437.  The logical implication of Blair II is that if, as in this case, the terms of the policy used to define the scope of optional coverage are essentially the same as those used to define the scope of compulsory coverage, the terms should receive the same interpretation from the court in both parts of the policy.

d.  Reasonable expectations.  This court’s decision in Commerce Ins. Co. v. Koch, 25 Mass. App. Ct. 383, is also instructive.  There, the defendant driver of a vehicle and the plaintiff passenger were both seventeen years old and unlicensed.  They had been drinking alcohol and were traveling in the passenger’s vehicle, which due to the driver’s negligence rolled down an embankment and turned over, injuring the passenger.  The vehicle was unregistered and uninsured.  The question faced by the court was whether passenger could recover damages under Part 5 of the motor vehicle liability policy issued by Commerce to the driver’s father on the theory that the driver (like Hill in this case) was a “household member” and “legally responsible for the accident.”  Id. at 384.  Part 5 there also included restrictive language that provided that if an insured was using a nonowned vehicle at the time of the accident, the “owner’s auto insurance must pay its limits before we pay.”  Ibid.  This court rejected the insurer’s argument that the Part 5 language in question should be interpreted to mean that if there was no insurance coverage on the nonowned vehicle, the insurer had no obligation to pay.  Id. at 384-385.  Of particular significance is the court’s dicta that even if there was uncertainty about the meaning of language imposing a limitation on coverage under Part 5, because the terms used by the insurer to define the scope of optional coverage are not prescribed by the Commissioner of Insurance, “the insureds are still favored; this would follow from common sense considerations of equity and of the ability of insurers to spread the losses as well as to advocate and secure changes in the policy terms, if they are warranted.”  Id. at 388.

“It is common knowledge that protection against liability on the ground of negligence is the principal purpose of [motor vehicle liability] policies. . . .  The object of the policy is protection against law suits and legal liability.”  Miller v. United States Fid. & Guar. Co., 291 Mass. 445, 448 (1935). Certainly, as Mahoney argued in the case before us, when the Supreme Judicial Court has interpreted terminology in the Part 1 compulsory coverage section of the policy (“permission of the owner”) to require no more than that the insured has the “authority to operate” or “the right to possess” the vehicle, see Liberty Mut. Ins. Co. v. Tabor, 407 Mass. at 360, and the Commissioner of Insurance approves a liability policy that uses the functional equivalent of this language in the Part 5 optional coverage section, we should consider this body of interpretive law part of the “objectively reasonable expectations” of the intended beneficiaries of the policy and honor it.  Commerce Ins. Co. v. Koch, 25 Mass. App. Ct. at 388 n.11, quoting from Keeton, Insurance Law 351 (1971).

e.  Cases cited by the majority are distinguishable.  Despite superficial similarities, our decision in Vergato v. Commercial Ins. Co., 50 Mass. App. Ct. 824 (2001), does not control the outcome of this case.  Vergato also involved a rental car and the application of optional coverage for bodily injury to others under Part 5 of the policy.  There the named insured permitted her son to drive a rental car even though he was not identified as an additional driver in the rental agreement.  The son, in turn, asked a friend to drive for him; the friend lost control of the rental car and the son, who was a passenger, sustained injuries.  The insurer denied coverage on the ground that the son’s friend did not have the rental company’s consent to drive the car.  We concluded that the term “owner” used in the final sentence of Part 5, second par., referred to the actual title holder of the vehicle, i.e., the rental company.  Based on this, we held that the insurer had no obligation to provide coverage for the injuries sustained by the insured’s son.  Id. at 829.  The insured’s son was an unauthorized driver who at no time had the consent of the rental company to use the rental car.  If the court had concluded that coverage existed for the son under those circumstances, the insurer would have been forced to pay for the benefit of someone using the rental vehicle without the consent of the owner in contravention of the last sentence of the second paragraph of Part 5 optional coverage.  On the other hand, recognition of Hill’s right to indemnification does not force AAIC to pay damages for the benefit of someone who used the vehicle without the consent of Hertz, because Hill’s negligent entrustment of the vehicle to Teague was not only a “use” of the vehicle but, notwithstanding a violation of her bailment with Hertz, a use that was with the consent of Hertz.  See Hurley v. Flanagan, 313 Mass. 567, 572 (1943) (indicating that test for whether vehicle was operated with consent of owner is based on whether individual had lawful possession of it and was responsible for operation as opposed to whether owner approved of particular operation).  See also Liberty Mut. Ins. Co. v. Tabor, 407 Mass. at 360 (vehicle renter’s “use” of automobile was within scope of rental company’s permission, even while renter engaged in use of automobile prohibited by rental company).

The majority maintains that our decision in Hanover Ins. Co. v. Locke, 35 Mass. App. Ct. 679 (1993), supports its view that optional coverage is not available in this case.  Locke, however, offers no support for the majority’s view.  There, the insured’s son, who had been expressly forbidden to drive his father’s automobile and specifically removed from the father’s motor vehicle liability policy, took the father’s car one evening without the knowledge or permission of his parents and allegedly killed another person in a hit and run accident.  Id. at 680.  In ruling that neither the father’s compulsory nor optional coverage was available to the decedent’s estate, we reasoned that the son at no time had his father’s permission to operate the vehicle.  Id. at 681-682.  Here, unlike in Locke, Hill had the consent and permission of Hertz to operate the rental car.

The majority also maintains that our decision in Picard v. Thomas, 60 Mass. App. Ct. 362 (2004), supports the conclusion that optional coverage is not available in this case.  Picard, however, simply represents an application of the principle in Vergato, supra.  In Picard, the evidence was that David Pearlman leased an automobile for his daughter Samantha.  She, in turn, allowed her friend Thomas to drive it while she was a passenger even though this was contrary to her father’s instructions, and she knew Thomas was not licensed.  The vehicle operated by Thomas collided with another vehicle, resulting in the death of one person and serious injuries to another.  Lawsuits followed against Thomas, Samantha, and Pearlman.  The court concluded there was sufficient evidence that Thomas operated the vehicle in a negligent manner and that Samantha was negligent in entrusting the vehicle to him to preclude summary judgment in their favor, but upheld summary judgment in favor of Pearlman because he played no role in the events.  Id. at 365-370.  With regard to questions of insurance coverage, the court held that Pearlman’s insurer had no duty to defend or indemnify Thomas for any damages recovered against him in these actions because there was no evidence that Thomas operated the vehicle with the express or implied consent of Pearlman.  Id. at 371.  However, the court noted that the insurer “does not deny that it is obligated to defend Samantha in this action.”  Id. at 372 n.5.  The analysis in Picard thus undermines the reasoning of the majority:  if you substitute Hill for Samantha, and Teague for Thomas, you have the case before us.

3.  Conclusion.  The public policy of Massachusetts, as reflected in cases such as O’Roak v. Lloyds Cas. Co., 285 Mass. at 535-536; Guzenfield v. Liberty Mut. Ins. Co., 286 Mass. at 136; Boudreau v. Maryland Cas. Co., 287 Mass. at 425-426; and Dickinson v. Great Am. Indemn. Co., 296 Mass. at 372, discussed above, is to interpret the omnibus clause of Part 1 of the standard motor vehicle liability policy broadly so that innocent travelers on our roadways have access to compulsory coverage when injured by a motorist using a vehicle with the authority of the owner.  The “permission of the owner” clause in Part 1 of the policy requires only that the operator have authority to use the vehicle.  The “consent of the owner” exclusion in Part 5 of the policy should likewise require no more than authority to use the vehicle.  This is especially so considering that in Part 5, the standard policy includes this phrase:  “This Part is similar to Compulsory Bodily Injury to others (Part 1).”

Massachusetts public policy indicates that terms like “permission” and “consent” to use a vehicle, in the absence of other restrictive language, should be read broadly because “optional bodily injury coverage merely increases the potential amount an injured party can recover while offering the same protection as compulsory coverage.”  Cohen v. Liberty Mut. Ins. Co., 41 Mass. App. Ct. at 755 n.6.  Under the reasoning applied by the majority in this case, if a person in Hill’s position acted negligently and elected to drive a rented vehicle while drunk, she would be entitled to indemnification, but if such a person acted negligently by entrusting the rental vehicle to a designated driver who was not intoxicated, but who then caused an accident, while the insured rode in the vehicle as a passenger, the insured would not be entitled to indemnification, and an innocent party could be left without a complete remedy. Such a result is at odds with the principle enunciated in Liberty Mut. Ins. Co. v. Tabor, 407 Mass. at 358, that restrictions in automobile rental agreements do not have the effect of nullifying an automobile liability policy’s coverage of the insured for her negligence.  Moreover, the majority’s view finds no support in any of our precedents and is contrary to the observation by the Supreme Judicial Court in Flattery v. Gregory, 397 Mass. at 150, that the Legislature intended innocent travelers on the highway to be the beneficiaries of optional coverage no less than of compulsory coverage.

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