Young v. John Hancock Property

12 Mass. L. Rptr. 88

• Court: Massachusetts Superior Court
• Decided: July 31, 2000
• Docket: No. 99109
• Status: Published

Opinion

Donovan, J.

The plaintiff, Ruth Young, while riding as a passenger in a vehicle operated by Winifred Jiunta and insured by Arnica was involved in a collision with a vehicle insured by Travelers Insurance Company. Ms. Young received $11.500 from Travelers as her proportionate share of bodily injury limits of $15,000/$30,000.

Ms. Young filed this action seeking underinsured coverage from Arnica and Fireman’s Fund Insurance Company which insured her own vehicle. Arnica and Fireman’s filed cross motions for summary judgment seeking a declaration as the priority of payment from the underinsured coverage of the policies.

Fireman’s policy provides:

If there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.

There is no question the vehicle Ms. Young was a passenger in was not owned by her. Therefore, her policy with Fireman’s becomes operative as excess over other underinsured policies.

Aside from the language of the policy, it is only fair and reasonable to look first to the policies on the vehicles involved in the accident. The insurer whose vehicle was not involved in the accident steps into the fray after the other policies are exhausted.

Summary judgment shall enter for Fireman’s Fund Insurance Company against Arnica Mutual Insurance Company.

ORDER

It is hereby DECLARED, ORDERED and ADJUDGED:

1. If the plaintiff, Ruth Young, becomes entitled to recover from the underinsurance provision of any policy, Arnica Mutual Insurance Company policy shall be exhausted before Fireman’s Fund Insurance policy shall be available for excess coverage.

DATED: July 21, 2000