Commerce Insurance Co., Inc. v. Gentile, et al. (Lawyers Weekly No. 11-025-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1169 Appeals Court COMMERCE INSURANCE CO., INC. vs. VITTORIO GENTILE & others.[1] No. 12‑P‑1169. Norfolk. September 11, 2013. ‑ March 13, 2014. Present: Kantrowitz, Sikora, & Hines, JJ. Insurance, Motor vehicle insurance, Coverage, Misrepresentation. Motor Vehicle, Insurance, Permission to operate. Contract, Insurance. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on November 7, 2007. A motion for summary judgment was heard by E. Susan Garsh, J., and the entry of final judgment was ordered by Patrick F. Brady, J. Brian P. Burke for Janice Silverio & another. Richard R. Eurich (John F. Hurley, Jr., with him) for the plaintiff. SIKORA, J. Commerce Insurance Company (Commerce) brought this action in Superior Court for a declaratory judgment of its obligation to pay substantial damages under the optional bodily injury provision of a standard Massachusetts motor vehicle policy. Defendants Vittorio and Lydia Gentile are the policyholders. The defendant Vittorio Gentile, Jr. (Junior), is their grandson. Defendants Joseph Homsi and Janice Silverio, as guardian of Douglas Homsi, by separate suit have achieved verdicts and resulting judgments of substantial compensatory damages for severe personal injuries against Vittorio, Lydia, and Junior, by reason of Junior’s negligent operation of his grandparents’ vehicle and by reason, inter alia, of the negligent failure of Lydia and Vittorio to prevent Junior’s use of that vehicle. At the time of the accident on December 10, 2006, an operator exclusion form, drafted by Commerce and signed by Lydia and Junior on December 7, 2004, provided that Junior would not drive any vehicle covered by the Gentiles’ policy. Junior did operate his grandparents’ vehicle and, according to the verdicts in the separate personal injury litigation, negligently caused devastating injuries to the Homsi brothers. In this litigation Commerce sought a judgment declaring that the Gentiles’ violation of the operator exclusion form relieved the insurer of any duty of indemnification of them under the policy clause for optional bodily injury coverage of $ 500,000. A judge of the Superior Court concluded that Junior had violated the operator exclusion form as a material representation underlying the issuance of the policy and that Commerce therefore was relieved of its duty of optional coverage for bodily injury caused by their vehicle. The Homsi parties have appealed. For the following reasons, […]