Mahoney v. American Automobile Insurance Company (Lawyers Weekly No. 11-070-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑163 Appeals Court WAYNE MAHONEY vs. AMERICAN AUTOMOBILE INSURANCE COMPANY. No. 12‑P‑163. Plymouth. October 4, 2012. ‑ June 3, 2013. Present: Grasso, Fecteau, & Agnes, JJ. Motor Vehicle, Insurance, Entrustment. Insurance, Motor vehicle insurance, Coverage, Insurer’s obligation to defend. Indemnity. Contract, Insurance, Indemnity. Negligence, Motor vehicle, Entrustment. Civil action commenced in the Superior Court Department on February 11, 2010. The case was heard by Richard J. Chin, J., on motions for summary judgment. Merril S. Biscone, of New York (Pamela S. Gilman with her) for the defendant. J. Michael Conley for the plaintiff. FECTEAU, J. On appeal from the allowance of the defendant American Automobile Insurance Company’s (AAIC) motion for summary judgment, the plaintiff, Wayne Mahoney, contends that a judge in the Superior Court erred in interpreting Part 5, the “Optional Bodily Injury to Others” provision (Part 5) of a standard Massachusetts automobile insurance policy (seventh edition). Mahoney’s complaint sought a declaration that AAIC is contractually obligated to indemnify Jennifer Hill, a household member of its insureds, Thomas and Sandra Joyce (the Joyces), in connection with a motor vehicle accident in which Mahoney’s vehicle was struck by a vehicle rented by Hill and operated by Ellen Teague, to whom Hill had negligently entrusted it. Acting on cross motions for summary judgment, the judge concluded that AAIC had no contractual obligation to indemnify Hill, because the plain language of Part 5 unambiguously provides that “this Part does not pay for the benefit of anyone using an auto without the consent of the owner.” Relying on the reasoning in Vergato v. Commercial Union Ins. Co., 50 Mass. App. Ct. 824 (2001) (Vergato), the judge determined that Part 5 did not provide coverage to Hill because at the time of the accident, Teague was not operating the rental vehicle with the consent of the rental company, Hertz Rental Corporation (Hertz). We agree with the judge’s interpretation and affirm the judgment. Background. The essential facts are not in dispute. On March 17, 2007, Teague, who was not licensed, was driving a car that Hill had rented from Hertz when Teague negligently crossed the center line and struck Mahoney’s vehicle, seriously injuring him. In renting the car from Hertz, Hill listed only herself as an operator, and only Hill was […]