Mercadante v. Worcester Insurance

816 N.E.2d 145, 62 Mass. App. Ct. 293, 2004 Mass. App. LEXIS 1178
CourtMassachusetts Appeals Court
DecidedOctober 18, 2004
DocketNo. 03-P-1334
StatusPublished
Cited by4 cases

This text of 816 N.E.2d 145 (Mercadante v. Worcester Insurance) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercadante v. Worcester Insurance, 816 N.E.2d 145, 62 Mass. App. Ct. 293, 2004 Mass. App. LEXIS 1178 (Mass. Ct. App. 2004).

Opinion

Grasso, J.

We consider, once again, the intricacies of under-insured motorist insurance coverage. The material facts are not in dispute. On May 6, 1999, Katherine Mercadante sustained serious injuries in a motor vehicle accident caused by Cynthia Steele, who was insured under a policy issued by Middlesex Insurance Company (Middlesex Insurance) that provided bodily [294]*294injury liability coverage limits of $20,000 per person and $40,000 per accident.

At the time of the accident, Mercadante was driving a 1997 Ford Explorer sport utility vehicle owned by Mercadante Funeral Home, Inc. (the funeral home). The vehicle was insured under a business automobile policy issued to the funeral home as named insured by Worcester Insurance Company (Worcester Insurance). The Worcester Insurance policy provided underinsured motorist coverage with limits of $250,000 per person and $500,000 per accident. Mercadante was a listed driver but not a named insured on the policy.1 An endorsement to the Worcester Insurance policy stated that underinsured motorist coverage would be provided to anyone “occupying” a covered “auto” except if that person had his or her own Massachusetts automobile policy or was covered by a Massachusetts automobile policy of any “household member” providing underinsurance coverage.

At the time of the accident, Mercadante resided with her husband, Kevin Mercadante, who was the named insured on a standard Massachusetts automobile policy issued by The Commerce Insurance Company (Commerce Insurance). As a household member, Mercadante was a listed driver on this policy, which provided underinsured motorist coverage with the minimum statutorily required limits of $20,000 per person and $40,000 per accident, for which Commerce Insurance did not charge any additional premium. See G. L. c. 175, § 113L(1); G. L. c. 90, § 34A.

Mercadante resolved her claim against Cynthia Steele by accepting the $20,000 bodily injury liability limit on the Middle-sex Insurance policy. She then filed a claim with Worcester Insurance for underinsured motorist benefits under the funeral home’s business automobile policy. Worcester Insurance denied the claim, concluding that it had no obligation to provide coverage where Mercadante was a household member under her husband’s automobile policy with Commerce Insurance, which provided underinsured motorist coverage. Mercadante then filed a claim under her husband’s policy. Commerce Insurance [295]*295declined to provide benefits for the accident because underinsured motorist coverage in the minimum statutory amount ($20,000 per person and $40,000 per accident) was not “triggered” where the tortfeasor (here, Cynthia Steele) had $20,000 or more in bodily injury liability coverage.2

Mercadante brought this action pursuant to G. L. c. 231 A, seeking, inter alla, a judgment declaring that Worcester Insurance had a contractual obligation to provide her benefits according to the underinsurance provision of the funeral home’s business policy. Following a hearing on the parties’ cross motions for summary judgment, judgment entered for Worcester Insurance. The judge concluded that Mercadante had underinsurance coverage as a household member under her husband’s policy, and that any attempt to obtain benefits from the Worcester Insurance policy constituted “stacking”3 in violation of G. L. c. 175, § 113L(5).

On appeal, Mercadante contends that (1) Worcester Insurance’s motion for summary judgment should have been denied because she was not entitled to underinsured motorist coverage as a household member under the policy issued to her husband by Commerce Insurance; and (2) her motion for summary judgment should have been allowed because Worcester Insurance’s policy provided her with underinsured motorist coverage as an occupant of an insured vehicle. We affirm the grant of summary judgment to Worcester Insurance and the denial of Mercadante’s motion. Where Mercadante was not a named insured on any policy of her own but was a household member with her husband, she was covered by the underinsured motorist provisions of her husband’s policy, notwithstanding that benefits were not available because the limits of such coverage did not [296]*296exceed the bodily injury liability limits of the tortfeasor’s policy. Moreover, Mercadante was not entitled to coverage as an “occupant” under the Worcester Insurance policy because she was covered as a household member under the Commerce Insurance policy.

1. Commerce Insurance policy coverage. Mercadante contends that the motion judge erred in granting summary judgment to Worcester Insurance because she had no underinsured motorist coverage as a household member under her husband’s policy with Commerce Insurance.4 We disagree.

The governing statute is G. L. c. 175, § 113L, which delineates the parameters of insurance coverage as to uninsured motorists, and encompasses by its terms underinsured motorists. See G. L. c. 175, § 113L(1), (2). General Laws c. 175, § 113L(5), added by St. 1988, c. 273, § 47, provides, in pertinent part:

“(5) Uninsured motorists coverage shall provide that regardless of the number of vehicles involved, whether insured or not, persons covered, claims made, premiums paid or the number of premiums shown on the policy, in no event shall the limit of liability for two or more vehicles or two or more policies be added together combined or stacked to determine the limits of insurance coverage available to injured persons. An insured who is not a named insured on any policy providing uninsured motorist coverage may recover only from the policy of a resident relative providing the highest limits of such coverage whether or not such vehicle was involved in the accident.... Any injured occupants who are not named insureds on a policy and who are not insured on a resident relative’s policy may obtain uninsured motorist coverage from the named [297]*297insured’s policy covering the vehicle they occupy when injured” (emphasis added).5

Under the statute, where Mercadante was not a named insured on any automobile policy of her own providing underinsured motorist coverage, she must look first to recover from the policy of a resident relative (her husband) that provides such coverage, regardless of whether such relative’s vehicle was involved in the accident.6 The question then reduces to whether Mercadante was “covered” under the underinsured motorist provisions of her husband’s policy with Commerce Insurance when no benefits were payable to her under that policy because the policy limits of underinsured motorist coverage were the same as the tortfeasor’s bodily injury liability limits. To support her argument that she was not covered under the policy issued by Commerce Insurance, Mercadante relies on item four set forth on the “Coverage Selections Page” of that policy which states, “[tjhis policy provides only the coverages for which a premium charge is shown.” Because no premium charge was shown on the Commerce Insurance policy for the statutorily mandated minimum underinsured motorist coverage, Mercadante contends that she was not covered under the plain terms of the policy. We conclude, adversely to Mercadante, that this point is substantially controlled by Smart v. Safety Ins. Co., 419 Mass. 144, 150 (1994).

In Smart,

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Cite This Page — Counsel Stack

Bluebook (online)
816 N.E.2d 145, 62 Mass. App. Ct. 293, 2004 Mass. App. LEXIS 1178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercadante-v-worcester-insurance-massappct-2004.