Opinion
15-P-562
04-04-2016
COMMERCE INSURANCE CO., INC. v. PREMIER INSURANCE COMPANY OF MASSACHUSETTS & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Jose Soares is the plaintiff in an underlying civil action in Superior Court arising from an automobile accident. The accident was caused by Caleb Sorel while he was driving a vehicle owned by his father, Mark Sorel. At the time of the accident, Caleb had a Massachusetts auto policy with Commerce Insurance Co., Inc. (Commerce) and Mark had a Massachusetts auto policy with Premier Insurance Company of Massachusetts (Premier). While the underlying tort case was pending, Commerce commenced this action seeking a declaration that it had no duty to defend or indemnify Caleb because Caleb did not have Mark's express or implied consent to operate his vehicle. Premier also sought a declaration that it had no duty to defend or indemnify Caleb for the same reason. Commerce and Premier filed motions for summary judgment. Following the entry of judgment in favor of Commerce and Premier, Soares appealed. We affirm.
Because Caleb Sorel and his father, Mark Sorel, share a surname, we will refer to them hereafter by their first names to avoid confusion.
The judge declared that neither insurer's policy provided compulsory or optional insurance protection to Caleb. However, the judge ruled that, because Commerce initially undertook Caleb's defense and Caleb had reason to rely on Commerce as the source of his defense, Commerce must continue Caleb's defense in the civil suit brought by Soares.
Standard of review. "Summary judgment is appropriate where there is no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law." Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 804 (2014). "We review a grant of summary judgment de novo," viewing the evidence in the light most favorable to the nonmoving party. Miller v. Cotter, 448 Mass. 671, 676 (2007).
Background. The essential facts are not in dispute. Caleb moved into his parents' home in late 2011 after he and his wife separated. At that time, Caleb owned his own car and did not drive any of his parents' vehicles until June, 2012, when he turned his car over to his lender. From June, 2012, until August, 2012, Mark gave Caleb permission to use Mark's 2006 GMC solely to get to and from work, but he required Caleb to obtain his express permission each time he took the vehicle. Caleb was required to call Mark and obtain additional permission to keep the vehicle if he was working late or needed to stop somewhere on his way home. In early August, 2012, Caleb purchased a 2005 Buick and did not use his father's GMC again until November 7, 2012, the day of the accident at issue. On October 31, 2012, the 2006 GMC car registration expired, and the car was not reregistered between October 31 and the day of the accident.
On the morning of November 7, 2012, Caleb was involved in a one-car accident, while driving his Buick, that left his vehicle inoperable. Caleb returned to his parents' home and called his father to ask permission to use the GMC truck, but his father did not answer his telephone. Caleb testified that he took a spare key to the GMC from a drawer and drove to Fall River. On his way home, he was involved in a second car accident with a vehicle operated by Soares.
Caleb asserted his Fifth Amendment to the United States Constitution right against self-incrimination at his deposition and refused to testify about where he was going when he took his father's GMC. Nothing in the record suggests he was using the GMC to get to work.
Discussion. Soares claims that a genuine issue of material fact exists as to whether Caleb was operating Mark's truck with his implied consent. In support of this claim, Soares points to the following facts: Mark previously allowed Caleb to use the GMC when Caleb had no other car; Mark failed to exclude Caleb from his auto policy; Mark did not report the truck stolen or its use unauthorized; Caleb had access to the spare key in a drawer; and Caleb testified that he believed Mark would have allowed him to use the truck on the day of the accident.
Soares concedes that Caleb did not have Mark's express permission to use the GMC on the day of the accident.
Under G. L. c. 90, § 34A, a Massachusetts motor vehicle liability policy "provides indemnity for or protection to the insured and any person responsible for the operation of the insured's motor vehicle with his express or implied consent." At the time of the accident, Caleb and Mark each had Massachusetts auto policies with compulsory and optional bodily injury coverage. Coverage "extends only to persons who are driving the vehicle with the consent of the policyholder under both the compulsory and optional coverages of the policy." Picard v. Thomas, 60 Mass. App. Ct. 362, 372 (2004).
Although Mark had, more than two months prior to the accident, allowed Caleb to use the GMC frequently, any such use first required Caleb to obtain Mark's express permission and that permission was limited to using the GMC for trips to and from work. Caleb testified that he knew he needed his father's permission to use the GMC on the day of the accident and the fact that he remembered calling his father three times to ask is evidence of such knowledge. There is no evidence in the record that Caleb had ever previously taken the GMC, or any of Mark's other vehicles, without Mark's express permission. Cf. Hurley v. Flanagan, 313 Mass. 567, 573-574 (1943). In addition, the car registration for the GMC had expired prior to the accident.
The mere opportunity to take Mark's GMC by using the spare key, even when Caleb had used that same key in the past to permissibly use the vehicle, does not equate to Mark's implied consent to use it on the day of the accident. See Dickinson v. Great Am. Indem. Co., 296 Mass. 368, 371 (1937).
In response to an insurance investigator's question, "So did you have reason to think that it was okay to use [the GMC] without permission?" Caleb answered, "I just thought it would be okay." He later stated, "If nothing occurred, if no accident occurred, it would've been fine." Soares argues that these statements by Caleb, in contrast to Mark's testimony that he did not give implied consent, establish a genuine issue of material fact. However, the statement of facts includes the undisputed statement that "Caleb . . . knew that Mark . . . did not allow him to take [the GMC] at any time unless he received Mark's express permission to take the vehicle" (emphasis supplied). Furthermore, Mark was aware that the GMC's registration had expired on October 31, 2012. We disagree with Soares's suggestion that there is a genuine issue as to whether Mark would have consented to Caleb taking his unregistered vehicle on a personal errand just hours after Caleb crashed his own car. Nor do we agree that Mark's failure to specifically exclude Caleb from his auto policy or report an unauthorized use or theft of the vehicle creates such an issue in light of the rest of the record before us.
Judgment affirmed.
By the Court (Kafker, C.J., Katzmann & Grainger, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 4, 2016.