NGM Ins. Co. v. Pillsbury

416 F.Supp.3d 57

NGM INSURANCE COMPANY, Plaintiff

v.Marc PILLSBURY, Jennifer Pillsbury, Jane Mansfield, as Personal Representative of the Estate of Thomas Mansfield and Jane Mansfield, Defendants.

Civ.Act.No. 17-40163-TSH

United States District Court, D. Massachusetts.

Filed September 12, 2019

Scott T. Ober, David F. Hassett, Michael S. Melville, Hassett & Donnelly, P.C., Worcester, MA for Plaintiffs.

Richard H. Maynard, Law Offices of Richard H. Maynard, PC, Belchertown, MA for Defendant.

MEMORANDUM OF DECISION AND ORDER

TIMOTHY S. HILLMAN, UNITED STATES DISTRICT JUDGE

Introduction

NGM Insurance Company ("NGM") has filed an action pursuant to 28 U.S.C. § 2201 seeking a declaration of rights and obligations under an automobile insurance policy it issued to Marc Pillsbury ("M. Pillsbury"). M. Pillsbury is being sued in state court with wrongful death and personal injury lawsuits by Jane Mansfield, representative of the Estate of Thomas Mansfield ("Estate") and Jane Mansfield ("J. Mansfield"), individually, as the result of an accident involving a car driven by M. Pillsbury. NMG seeks a declaratory judgment that it has no duty to defend or indemnify M. Pillsbury in those actions.

This Memorandum of Decision and Order addresses Plaintiff, NGM Insurance Company's Motion for Summary Judgment (Docket No. 30). For the reasons set forth below, that motion is granted , in part, and denied , in part.

Facts ¹

Background Facts

On July 13, 2016, J. Mansfield filed a personal injury action in Worcester Superior Court against M. Pillsbury. Thereafter, the Estate filed a separate wrongful death claim in Worcester Superior Court.² The complaints in both underlying matters allege that on August 3, 2013, a motorcycle operated by T. Mansfield, and carrying J. Mansfield, his wife, as a passenger, was travelling on Meadow Road in Spencer, Massachusetts when it collided with a motor vehicle (the "Ford Flex") operated by M. Pillsbury. The registered owner of the Ford Flex was M. Pillsbury's wife, J. Pillsbury. M. Pillsbury is a self-employed sign installer and drives a 2012 Nissan which is insured by him under a policy issued by NGM.

M. Pillsbury told officers that he was driving the Ford Flex and that he had just left a wedding at Zukas Hilltop Barn in Spencer, Massachusetts. There were approximately one hundred people at the wedding. Of that number. he knew "five or six." M. Pillsbury had never done any business with those five or six people and had never had any professional or business relationship with the bride or groom. Moreover, he did not see anyone at the wedding that he interacted with through the course of any prior employment. M. Pillsbury stated that he would not have attended the wedding without his wife and he was not operating the Ford Flex in connection with his business or employment.

At the time of the accident, both M. Pillsbury and J. Pillsbury were living at 1 Frankie Lane, North Grafton, Massachusetts. M. Pillsbury never rented or leased the Ford Flex from his wife, never hired the vehicle to do any work for his company and had no recollection of J. Pillsbury ever using her Ford Flex to run any company errands. M. Pillsbury rarely used the Ford Flex, but when he did so, he would not use it for company business. M. Pillsbury's business never gave J. Pillsbury any money in exchange for the use of the Ford Flex.

The Policy

NGM issued Policy No. M1T5266D, a commercial automobile policy, to M. Pillsbury, for the policy period February 13, 2013 to February 13, 2014 (the "Policy"). The Policy states that the terms "you" and "your" refer to the "Named Insured" shown in the Declarations, which in this case is "Marc Pillsbury." The Declarations page describes M. Pillsbury's business as "sign installation and repair," and states that the form of business is corporation. According to M. Pillsbury he was self-employed by Northern Exposure Sign and Graphics, which is a limited liability company.

The Policy contains the following relevant language:

SECTION I – COVERED AUTOS

Item Two of the Declarations shows the "autos" that are covered "autos" for each of your coverages. The following numerical symbols describe the "autos" that may be covered "autos".

The symbols entered next to a coverage on the Declarations designate the only "autos" that are covered "autos".

A. Description of Covered Auto Designation Symbols

* * *

7 - Specifically Described "Autos"³

Only those "autos" described in Item Three of the Declarations for which a premium charge is shown (and for Liability Coverage any "trailers" you don't own while attached to any power unit described in Item Three).

8 – Hired "Autos" Only

Only those "autos" you lease, hire, rent or borrow. This does not include any "auto" you lease, hire, rent or borrow from any of your "employees", partners (if you are a partnership), members (if you are a limited liability company) or members of their households.

9 – Non-owned "Autos" Only

Only those "autos" you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes "autos" owned by your "employees", partners (if you are a partnership), members (if you are a limited liability company) or members or their households but only while used in your business or personal affairs.

The Policy further contains the following additional relevant language:

SECTION II – LIABILITY COVERAGE

A. Coverage

We will pay all sums an "Insured" legally must pay as damage because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of a covered "auto".

* * *

1. Who Is An Insured

The following are "insureds":

a. You for any covered "auto".

b. Anyone else while using with your permission a covered "auto" you own, hire or borrow except:

(1) The owner or anyone else from whom you hire or borrow a covered "auto". This exception does not apply if the covered "auto" is a trailer connected to a covered "auto" you own.

(2) Your "employee" if the covered "auto" is owned by that "employee" or a member of his or her household.

(3) Someone using a covered "auto" while he or she is working in a business of selling, servicing, repairing, parking or storing "autos" unless that business is yours.

(4) Anyone other than your "employees", partners (if you are a partnership), members (if you are a limited liability company) or a lessee or borrower or any of their "employees", while moving property to or from a covered "auto".

(5) A partner (if you are a partnership) or a member if you are a limited liability company) for a covered "auto" owned by him or her or a member of his or her household.

c. Anyone liable for the conduct of an "insured described above but only to the extent of that liability.

The Policy further contains a Massachusetts Mandatory Endorsement, which provides in relevant part:

COMPULSORY BODILY INJURY TO OTHERS COVERAGE

A. Coverage

We will pay all sums an insured legally must pay as damages because of "bodily injury" caused by a covered "auto" in Massachusetts "accidents." The damages we will pay are the amounts the injured person is entitled to collect for "bodily injury" through a court judgment or settlement.

____________

1. Who is an insured:

a. You.

b. Anyone else using a covered "auto" with your consent.

Discussion

Standard of Review

Summary Judgment is appropriate where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Carroll v. Xerox Corp. , 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed. R. Civ. P. 56(c) ). "A genuine issue is one that could be resolved in favor of either party, and a material fact is one that has the potential of affecting the outcome of the case.’ " Sensing v. Outback Steakhouse of Florida, LLC , 575 F.3d 145, 152 (1st Cir. 2009) (quoting Calero-Cerezo v. U.S. Dep't. of Justice , 355 F.3d 6, 19 (1st Cir. 2004) ) (internal citation and quotation marks omitted).

The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Sensing , 575 F.3d at 153. "Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial." Id. (citing Carroll , 294 F.3d at 236 ). These facts must not be merely allegations or denials of the moving party's pleadings. Id. Both "[c]onclusory allegations [and] improbable inferences" are insufficient to overcome summary judgment. Sensing , 575 F.3d at 153 (citing Carroll , 294 F. 3d at 236-37 (internal quotations omitted)). "The test is whether, as to each essential element, there is ‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.’ " Sensing, 575 F.3d at 153 (citations omitted).

Interpretation of an Insurance Policy

Massachusetts law provides that interpretation of an insurance policy is a question of law for the court. The court applies general rules of contract interpretation, and looks first to the actual policy language, which is " ‘given its plain and ordinary meaning.’ " Valley Forge Ins. Co. v. Field, 670 F.3d 93, 97 (1st Cir. 2012). Like all contracts, an insurance policy is to be construed according to the fair and reasonable meaning of its words. A " ‘coverage provision is generally entitled to liberal construction in favor of coverage, while an exclusion is subject to a narrow construction against the insurer.’ " A & W Maint., Inc. v. First Mercury Ins. Co. , 91 F. Supp. 3d 113, 126 (D. Mass. 2015) (citation to quoted case omitted). Accordingly, exclusionary clauses must be strictly construed against the insurer so as not to defeat any intended coverage or diminish the protection purchased by the insured. See Vappi & Co., 348 Mass. at 431-432, 204 N.E.2d at 276 (1965). Where "the relevant...