Borden v. Progressive Direct Insurance Company (Lawyers Weekly No. 11-052-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-449 Appeals Court RITA BORDEN vs. PROGRESSIVE DIRECT INSURANCE COMPANY. No. 14-P-449. Bristol. November 10, 2014. – May 21, 2015. Present: Rubin, Brown, & Maldonado, JJ. Insurance, Business exclusion. Contract, Insurance. Motor Vehicle, Insurance. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on October 9, 2012. The case was heard by Robert J. Kane, J., on motions for summary judgment. Joseph A. Keough, Jr., for the plaintiff. Hillary J. Giles for the defendant. BROWN, J. The single issue presented for review is whether the “automobile business” exclusion contained in a standard Rhode Island automobile policy applies in the circumstances of this case as to preclude coverage. Ruling on cross motions for summary judgment, a judge of the Superior Court concluded that it did, and ordered judgment to enter for the defendant, Progressive Direct Insurance Company (Progressive). We agree and, accordingly, affirm the judgment.[1] To prevail on appeal, the plaintiff must convince us that there is a dispute of material fact which precludes summary judgment or that the undisputed material facts entitle her to a judgment as matter of law. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Our review is de novo. See Miller v. Cotter, 448 Mass. 671, 676 (2007). 1. Facts. The material facts necessary to decide the legal issue before us are undisputed. In 2008, Geraldina Melo purchased a Dodge tow truck solely for the use of her boy friend, Davidson Lues Bucco. On behalf of automobile dealerships, Bucco transported used automobiles by means of the tow truck either (1) from dealer lots to sales auctions or (2) from the auctions to dealer lots. Bucco called his business “David’s Towing.” He hired Eduardo A. Silva to assist him with the work.[2] Whenever Silva’s help was needed, someone from David’s Towing would notify Silva that he was needed on a designated day. Silva performed services for David’s Towing once or twice per week, earning $ 100 per day. On the date of the accident, Silva arrived at the garage used by David’s Towing at 9 A.M. and parked his 2007 Nissan Altima (the vehicle insured by Progressive). After retrieving the keys to the tow truck, the only one used in the business, he inspected it to make sure […]