Opinion
No. 16–P–544.
12-28-2016
PROGRESSIVE DIRECT INSURANCE COMPANY v. Chaz WILSON & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, Chaz Wilson and his mother, Delores Wilson, appeal from a declaratory judgment declaring that the plaintiff, Progressive Direct Insurance Company (Progressive), has no obligation, under an automobile insurance policy (policy) issued to Delores, to provide underinsured motor vehicle insurance coverage to Chaz. The judgment entered pursuant to a judge's order that granted Progressive's summary judgment motion. On appeal, the defendants claim that the motion judge committed error in determining that Chaz was not a household member for purposes of Delores's policy, that Progressive should be estopped from denying Chaz underinsured benefits due to Delores's conversation with a Progressive representative, and that Chaz was an intended third-party beneficiary under the policy. We affirm.
Because the defendants share the same last name, we refer to them by their first names.
1. Household member. The defendants claim that the motion judge erred in finding that Chaz was not a member of Delores's household for purposes of her policy with Progressive. We disagree. We review a decision on a motion for summary judgment de novo, analyzing "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." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
Under Delores's policy, Progressive agreed to pay damages to "[a]ny household member ... while occupying an auto not owned by you," with the term household member defined as "anyone living in your household who is related to you by blood, marriage or adoption." Progressive submitted evidence of Chaz's separate household through medical records, the address on his license, and a signed lease showing his residence to be unit one, not his mother's unit two.
Furthermore, in her conversation with a Progressive representative concerning her purchase of the policy, Delores made clear that Chaz did not live in her unit, stating, "He doesn't live with me in my apartment; he lives—has his own apartment downstairs.... He's unit one, I'm unit two." Delores herself made it clear that Chaz does not live with her, and is therefore not a household member. The contention that the entire family does laundry in unit 1, that Delores cooks for the entire family, and that the back doors between units are not locked, does not suffice to show that Chaz is a household member as defined by the policy's terms.
2. Estoppel. The defendants also claim that Progressive is estopped from denying Chaz coverage under the policy because of Delores's conversation with a Progressive representative regarding her policy's coverage of Chaz. We disagree.
"Estoppel is appropriate where a party can demonstrate ‘(1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission.’ " Kanamaru v.. Holyoke Mut. Ins. Co., 72 Mass.App.Ct. 396, 405 (2008), quoting from Sullivan v. Chief Justice for Admn. & Mgmt. of the Trial Ct., 448 Mass. 15, 27–28 (2006). The motion judge determined that the conversation between Delores and the Progressive representative concerned liability coverage for persons who drove her vehicle, not whether her son was covered by the policy in terms of underinsured motorist coverage. We agree.
The conversation between Delores and the Progressive representative shows intent on the behalf of Delores to ensure that Chaz did not need to be listed on her insurance policy. The representative explained that under Massachusetts law, Progressive is required to list family members of legal age to drive that live in Delores's household. That information is what Delores was concerned with. Her questioning of the representative was based on her concerns that even though Chaz may drive her car occasionally, she did not want to pay to list Chaz as an occasional driver on her policy.
PROGRESSIVE: "All right. And the reason I ask is because the way that we're (inaudible) write our policies in the state of Massachusetts, we're required to list any family members old enough to drive—"
MS. WILSON: "Okay. Now, this is a two-family house. He doesn't live with me in my apartment; he lives—has his own apartment downstairs. Would that be considered living—"
PROGRESSIVE: "Okay. So you're unit two. Is he unit one?" MS. WILSON: "He's unit one, I'm unit two."
PROGRESSIVE: "Then it's separate households. We don't have to (inaudible)."
MS. WILSON: "Yeah, okay."
The representative did not say, or even imply, that Delores did not need to list Chaz on the policy to include him in her underinsured motorist coverage. Delores even clarified this information further before ending the conversation. There was no mention of underinsured motorist coverage. The defendants cannot claim that Chaz lives in a separate unit to avoid adding him for liability coverage, but say he's a household member for purposes of underinsured motorist coverage.
MS. WILSON: "Because my son lives-he doesn't drive my car that much. He might run to the store. He has his own car. But because he lives in a separate unit, I don't have to add him onto my policy?"
PROGRESSIVE: "You don't, but if anybody is going to drive your vehicle twelve times or more in a year, you'd want to think about adding him to your policy at that point to make sure—" MS. WILSON: "Yes."
PROGRESSIVE: "—in the event they had an accident, they would be covered."
MS. WILSON: "No one drives my car."
PROGRESSIVE: "Perfect."
MS. WILSON: "Okay? I just want to make that clear, because he lives in a separate unit. Sometimes he might run to the store or-if anything happened, I want to make sure that's covered." PROGRESSIVE: "Yup. Just make sure—"
MS. WILSON: "Okay."
PROGRESSIVE: "—he's not driving it more than twelve times a year-"
MS. WILSON: "Oh no."
PROGRESSIVE: "—without being on the policy."
MS. WILSON: "No, he won't."
3. Third-party beneficiary. Finally, the defendants claim that Chaz should be covered by the underinsured motorist coverage as a third-party beneficiary. However, the argument that Chaz was a third-party beneficiary due to Delores's intention that he be covered by her policy fails, because that in fact was the opposite of her intention; her intention was to purposely not list him on her policy and avoid the cost. Delores's conversation with the Progressive representative shows that she wanted to make sure that she did not have to list Chaz on her policy for liability reasons. There can only be third-party beneficiary status "[w]hen two people enter a contract for the direct benefit of a third person." Lind v. Domino's Pizza LLC, 87 Mass.App.Ct. 650, 661 (2015). That was not the purpose of Delores's policy; the purpose was liability coverage for someone who occasionally drives her car but is not listed on her policy, and therefore Chaz cannot show he was an intended beneficiary of any underinsured motorist coverage. See ibid.
See note 3, supra.
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Judgment affirmed.