Norfolk & Dedham Mutual Fire Insurance Company v. National Continental Insurance Company (Lawyers Weekly No. 11-099-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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, Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       12‑P‑1207                                       Appeals Court   NORFOLK & DEDHAM MUTUAL FIRE INSURANCE COMPANY  vs.  NATIONAL CONTINENTAL INSURANCE COMPANY.       No. 12‑P‑1207.      August 14, 2013.     Insurance, Motor vehicle insurance, Notice, Cancellation.  Motor Vehicle, Insurance.  Registrar of Motor Vehicles.  Notice, Cancellation of insurance.       The question is whether the defendant, National Continental Insurance Company (National), “immediately upon the intended effective date of the cancellation of [an automobile insurance] policy . . . forwarded to the registrar of motor vehicles a notice, in such form as he may prescribe, containing such information to apprise the registrar of the particular motor vehicle registration on which the insurance is intended to be cancelled.”[1]  G. L. c. 175, § 113A(2), as amended by St. 1990, c. 287, § 1.     The facts are these:[2]  National issued a commercial automobile policy to Genivaldo DeSousa on March 7, 2009.[3]  On October 13, 2009, National notified DeSousa that the policy would be canceled effective November 3, 2009, at 12:01 A.M. for nonpayment of premiums.[4]  DeSousa did not pay.  On November 4, 2009, therefore, National notified DeSousa that his policy had been canceled as previously warned.  Two days later, on November 6, 2009, National electronically notified the registry of motor vehicles (RMV) (in a form known as a send report) that DeSousa’s policy had been canceled effective November 3, 2009.  The send report was in the form prescribed by the RMV in the sense that it supplied all the information required by the RMV including, among other things, the correct policy number, vehicle identification number, and license plate number.  However, it incorrectly identified DeSousa as a corporation rather than as an individual.[5]  Three days later, on November 9, 2009, the RMV electronically notified National of the error (in a form known as a return report).  On November 17, 2009, National sent a second send report correctly identifying DeSousa as an individual.  The RMV accepted the corrected send report that same day and accepted the cancellation of DeSousa’s policy effective November 3, 2009.[6]   A few weeks later, on December 7, 2009, DeSousa was in an accident with Eddy Guillaume, who was insured by the plaintiff, Norfolk & Dedham Mutual Fire Insurance Company (Norfolk & Dedham).   Norfolk & Dedham brought the underlying action, pursuant to G. L. c. 175, § 113, and G. L. c. 214, § 3(9), to reach and apply National’s policy in payment […]

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