Opinion
16-P-318
03-27-2017
BIG WHEEL TRUCK SALES, INC. v. SAFETY INSURANCE COMPANY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Big Wheel Truck Sales, Inc. (Big Wheel), appeals from a decision of the District Court Appellate Division that reversed a District Court judgment in its favor. The defendant, Safety Insurance Company (Safety or insurer), sought summary judgment on Big Wheel's claim for payment of an invoice for removing a truck from the Commonwealth's land along Route 195 in Swansea. The District Court held that the invoice was for remediation of the Commonwealth's property and ordered Safety to pay Big Wheel. The Appellate Division reversed stating that, even if Big Wheel remediated the property, it was not the owner of the land and therefore not entitled to payment under part 4 of the insured's policy. We affirm the decision and order of the Appellate Division but for a different reason.
We acknowledge the amicus brief filed by the Automobile Insurers Bureau.
Background . The following facts are not in dispute. David Raposa was insured by Safety under a 2008 edition of the Massachusetts Automobile Insurance Policy. The parties agree that Raposa did not purchase the optional collision coverage or towing coverage. On August 8, 2009, Raposa was traveling on Route 195 near Swansea, he lost control of the vehicle, and it left the roadway and landed in a ditch about seventy-five feet away from the guard rail. The State police responded to the scene and called Gaskell's Towing (Gaskell's) to remove the vehicle. Upon arrival at the scene, Gaskell's determined that they could not remove the vehicle from the ditch and contacted Big Wheel to remove the vehicle with specialized equipment. Big Wheel completed the removal of the vehicle from the ditch and placed it on Gaskell's truck for towing. After removing the vehicle, Big Wheel, in accordance with the relevant regulations, submitted its bill to Gaskell's to be included with the towing invoice submitted to Safety for payment. Big Wheel also sent the invoice to Raposa.
The District Court judge noted that there may be a question of fact regarding leaking fluids from the vehicle at issue. For the purposes of summary judgment, the judge presumed that there was no fluid leak, and there does not appear to have been any need for environmental cleanup of the property from leaking fluids after the removal of the vehicle.
Because Raposa did not have optional coverage for towing or collision, Safety did not pay Gaskell's or Big Wheel for the removal and towing of the vehicle. Big Wheel proceeded against Raposa individually. After litigating the claim, and just prior to trial, Raposa agreed to the entry of a judgment in favor of Big Wheel in the amount of Big Wheel's invoice, $5,470. Safety consented to the judgment, and Big Wheel agreed to only pursue Safety for payment of the judgment.
As stated by the Appellate Division, the agreed facts state that Big Wheel "remediated" the area, but there was no indication that Big Wheel did anything other than remove the vehicle. In addition, the judgment is silent on whether property repair was the basis of the removal but it is undisputed that Gaskell's Towing called Big Wheel to the scene in accordance with the towing regulations. 220 Code Mass. Regs. § 272 (2004) (rates for towing of motor vehicles).
Safety refused to pay the judgment, arguing that the services rendered by Big Wheel were towing services or due to damage to his own vehicle and not covered by Raposa's policy. Big Wheel asserted that the services it rendered were not towing services, but rather property remediation covered by part 4 of Raposa's policy, damage to the property of another. On cross motions for summary judgment, a judge of the District Court held that the presence of Raposa's vehicle on the Commonwealth's property constituted loss of use of the property within the meaning of part 4 and, therefore, the judge found that Big Wheel's removal of the vehicle amounted to repair of property damage within the meaning of part 4 of the policy. The judge also noted that, since a State police trooper arranged for the tow, the Commonwealth sought Big Wheel's services through its agent, and concluded that Safety was responsible for Big Wheel's invoice. Judgment entered for Big Wheel.
Safety appealed the judgment to the District Court Appellate Division. There, Safety argued that the invoice was for towing services or for damage to Raposa's vehicle and that there was no damage to another's property within the meaning of the policy, because Big Wheel was not the owner of the property at issue. The Appellate Division, relying on the plain language of the policy, ruled that the coverage under part 4 was for repairs to the property of "someone else" and therefore the coverage is limited to "that person" whose property is damaged in an accident. Since the Commonwealth and not Big Wheel owned the property, Big Wheel was not entitled to payment under the policy. The Appellate Division reversed and directed that judgment enter in favor of Safety. Big Wheel appealed.
Discussion . "On appellate review of a judge's decision on cross motions for summary judgment, we view the record in the light most favorable to the party against whom the judge allowed summary judgment." Marhefka v. Zoning Bd. of Appeals of Sutton , 79 Mass.App.Ct. 515, 516, 947 N.E.2d 1090 (2011). "We review a grant of summary judgment de novo to determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’ " Juliano v. Simpson , 461 Mass. 527, 529-530, 962 N.E.2d 175 (2012), quoting from Augat, Inc . v. Liberty Mut. Ins. Co ., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). The responsibility of construing the language of an insurance contract is a question of law for the trial judge, and then for the reviewing court. Ruggerio Ambulance Serv., Inc . v. National Grange Mut. Ins. Co ., 430 Mass. 794, 797, 724 N.E.2d 295 (2000).
In general, the rules of construction entitle an insured to "the most favorable interpretation of the policy language when there is more than one rational interpretation of the policy language, or where the policy language is ambiguous." Richardson v. Liberty Mut. Fire Ins. Co ., 47 Mass.App.Ct. 698, 702, 716 N.E.2d 117 (1999), quoting from Nashua Corp . v. First State Ins. Co ., 420 Mass. 196, 200, 648 N.E.2d 1272 (1995). This rule of resolving ambiguities in a policy against the insurer, however, is inapplicable where the language of the contract is that of the standard policy and is, therefore, prescribed by statute and controlled by the Division of Insurance. See Jacobs v. United States Fid. & Guar. Co ., 417 Mass. 75, 76, 627 N.E.2d 463 (1994). The policy must be construed consistent with the principle that "policy language must be ‘read as a whole and in the context of the insurance scheme in Massachusetts.’ " Massachusetts Insurers Insolvency Fund v. Premier Ins. Co ., 449 Mass. 422, 427, 869 N.E.2d 576 (2007), quoting from Massachusetts Insurers Insolvency Fund v. Safety Ins. Co ., 439 Mass. 309, 313, 787 N.E.2d 555 (2003).
The policy at issue is the 2008 edition of the Massachusetts Automobile Insurance Policy. Safety asserts that if Raposa had purchased part 7 collision coverage, the removal of the automobile would have been covered, subject to the policy deductible, as that part covers damage to "your auto." In addition, part 11 of the policy provides in pertinent part that: "Under this [p]art, we will pay up to the limit shown on your [c]overage [s]elections [p]age for towing and labor costs incurred each time your auto is disabled." The parties concede that, if Raposa had purchased either optional coverage when he purchased his automobile policy, he would have had coverage up to the limits shown on the coverage selection page for Big Wheel's invoice for services in removing the automobile from the Commonwealth's property. See 220 Code Mass. Regs. § 272.03, Table 1 (2004). Section 272.30 of the regulation also provides: "If the carrier [Gaskell's] has to employ any extraordinary or additional services [o]utside of its [c]apabilities (renting cranes, bulldozers, specialized labor, etc.) the maximum charge will be exactly equal to those charges which have been levied by the outside organization [Big Wheel] on the tow carrier." Ibid . Raposa did not have coverage for damage to his own automobile or for towing, therefore, Safety refused payment on Gaskell and Big Wheel's invoices.
Not to be deterred, however, Big Wheel sought payment for its invoice under part 4 of the policy, damage to someone else's property. Part 4 of the policy requires the insurer to pay "damages to someone else whose ... property is damaged in an accident. The damages we will pay are the amounts that person is legally entitled to collect for property damage through a court judgment or settlement." Big Wheel asserts that under the circumstances of this case, the Appellate Division incorrectly ruled that Big Wheel was not entitled to payment under the policy because it is not a "person legally entitled to collect for property damage" as it does not own the property from which the vehicle was removed. In support of this assertion, Big Wheel points to Safety's payment for repair of the guardrail by another vendor, where the Commonwealth owned the guardrail but did not submit the invoice for payment. At oral argument, the parties agreed that this is the usual custom for the repair of the guardrails and roadway, and we agree with Big Wheel that their claim for payment is not precluded, as the Appellate Division ruled, because they do not own the property from which the vehicle was removed. That said, we are not persuaded that the work it performed constituted a repair or remediation under part 4.
In support of its assertion that the work it performed falls under part 4 of the policy, Big Wheel points to two District Court cases wherein the court ruled that the clean-up of the roadway after an accident constituted property damage for the purposes of payment of the costs incurred in the clean-up. The facts of those cases differ from the circumstances presented here. In both cases there was documented property damage in the form of debris strewn on the roadway. The only conceivable damage supported by the record here is the "loss of use." See Citation Ins. Co . v. Newman , 80 Mass.App.Ct. 143, 147, 951 N.E.2d 974 (2011) (description of coverage for property damage for loss of use). The mere presence, however, of Raposa's damaged car on the Commonwealth's property is not a loss of use so sufficient to constitute property damage under part 4. Were that the case, every damaged or disabled vehicle on the Commonwealth's roadways would be entitled to towing at the expense of an auto insurer under the compulsory coverage of part 4. We agree with Safety that such an interpretation stretches the language of the policy in this case. The goal of part 4 coverage is "to protect the insured from the claims of injury or damage to others, but not to insure against economic loss sustained by the insured." Commerce Ins. Co . v. Betty Caplette Builders, Inc ., 420 Mass. 87, 92, 647 N.E.2d 1211 (1995).
The cases are Big Wheel Truck Sales, Inc . v. Canal Ins. Co ., Bristol Superior Court Civil Action No. 2005-1143 (2007); Sterry Street Towing, Inc . v. Canal Ins. Co ., Bristol Superior Court Civil Action No. 2011-1176 (2013).
Under the policy and relevant regulations set out above, and when looked at logically, the removal of the vehicle is covered by the statute and regulations for towing. See G. L. c. 85, § 2C ; 220 Code Mass. Regs. § 272.03. Raposa's vehicle left the roadway and traveled about seventy-five feet from the guardrail. The State police trooper who responded called Gaskell's, the tow company, and in accordance with the towing regulations, Gaskell's called Big Wheel. See 220 Code Mass. Regs. § 272.03. Ultimately, Big Wheel would not be at the scene of the accident unless called by the tow company. The regulations that govern Big Wheel's payment fall under the payment regulations for tow companies. Because Raposa did not purchase towing coverage for his vehicle, and did not purchase collision coverage for his vehicle, the insurer is not required to pay Big Wheel's invoice. Big Wheel's remedy is against Raposa.
Because we affirm decision of the Appellate Division, we do not reach Big Wheel's argument that Safety's refusal to make the payment is a violation of G. L. c. 93A, § 9. See Townsends, Inc . v. Beaupre , 47 Mass.App.Ct. 747, 755, 716 N.E.2d 160 (1999).
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Decision and order of Appellate Division affirmed .