Opinion
10-P-2016
09-16-2011
COMMERCE INSURANCE COMPANY v. JOYCE ALLEN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this insurance coverage dispute, a judge of the Superior Court allowed the insurer's motion for summary judgment on the insurer's compliant seeking a declaration that no coverage obtained under the facts of the case. We affirm.
The underlying incident is a dog bite suffered by a niece of the named insured householders, Jerold and Maureen Siegal. The contractual issue centers on the niece's status as an 'insured' as that term is defined by the policy and excluded from liability coverage protecting the householder. The policy defines 'insured' as 'you and residents of your household who are: (a) Your relatives; or (b) Other persons under the age of 21 and in the care of any person named above.'
The Siegals were named as defendants in the complaint but are not parties to the appeal.
Neither the policy nor our law provides a definition of 'resident,' and we resolve the issue as a matter of law on a case-by-case basis with reference to common usage. See Vaiarella v. Hanover Ins. Co., 409 Mass. 523, 526-527 (1991).
It is undisputed that the niece had been residing with her aunt for two days at the time she was bitten, and that her stay was contemplated to last for at least three months and possibly as long as one year. While the record contains assertions that the victim's mother, Joyce Allen, may have provided, or paid for, some amount of food during the period of occupancy, it is also undisputed that board was provided free of charge. The niece was enrolled in a local school using the aunt's address and the aunt was provided with written authority to make decisions concerning medical care in the mother's absence.
We are not persuaded that the factual disputes invoked by the defendant is material to the issue. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002); Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). The fact that the incident occurred shortly after her arrival does not speak to the nature of the niece's presence in the household. Likewise, the fact that there remained personal belongings in California and that the mother had returned there to complete the move to Massachusetts does not render the niece's presence somehow transitory rather than, as it was, newly established. The intent that the mother and her children would not live with the aunt forever does not avail the defendant, given the undisputed minimum intended length of the stay. Even were we to adopt the interpretation of 'close' family to exclude a sibling's children as urged by the defendant (and we do not do so), the facts permit no interpretation other than that the niece, a five year old girl whose mother had left her in Massachusetts while the mother completed the move here from California, was in her aunt's care at the time she was bitten.
The record reveals an undisputed intent for the niece to remain in the care of the aunt while the mother was out of State and the combined care of the aunt and the mother thereafter, either of which satisfies the definition of 'insured' under the policy.
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In sum, a young child was living with her aunt while her mother completed preparations for a stay that had a minimum intended duration of months and would continue until another residential accommodation could be located. A large part of the child's expenses was borne by the aunt who was indisputably acting in loco parentis. Under these circumstances the judge was correct in concluding that no genuine issue of material fact precluded entry of summary judgment for the insurer.
Judgment affirmed.
By the Court (Kafker, Green & Grainger, JJ.),