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04/25/78 LIBERTY MUTUAL INSURANCE COMPANY v. CLAIRE

April 25, 1978

LIBERTY MUTUAL INSURANCE COMPANY
v.
CLAIRE AGRIPPINO, ADMINISTRATRIX, & OTHERS *FN1



Suffolk. Bill in equity filed in the Superior Court on March 14, 1972. Motions for summary judgment were heard by Linscott, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Insurance, Motor vehicle liability insurance. Words, "Use."

The opinion of the court was delivered by: Hennessey

Where a person insured against liability for bodily injury and death under both a motor vehicle policy and a "homeowner's" policy was helping to guide a boat trailer being pulled by the owner of the boat with his automobile when a shackle attaching a line between the trailer and the automobile broke and fatally injured a third person, there was no causal relationship between the insured's "use" of the trailer and the resulting injury, and the insurer under the motor vehicle policy, therefore, had no obligation respecting such injury. [112-115]

This case raises the question as to which of two liability insurance policies issued to an insured person indemnified him as to a particular legal claim which had been brought against him for personal injuries and wrongful death. The issue was raised by a petition for declaratory relief, as to which both insurance companies were parties. Both insurers brought motions for summary judgment. A Judge of the Superior Court allowed the motion of the motor vehicle liability insurer and denied the motion of the general liability insurer. There was no error.

Liberty Mutual Insurance Company (Liberty) issued to William Green, the named insured, a Massachusetts combination motor vehicle policy that was in effect on the date of the occurrence here in issue and provided, in addition to statutory coverage, indemnity against liability for bodily injury and death in the amount of $100,000 for each person. National Fire Insurance Company (National) issued to Green a "homeowners" policy which was in force and in effect on the date of the occurrence and provided indemnity against "general" liability for bodily injury and death in the amount of $50,000 for each person.

The material facts of the occurrence, which are all contained in a stipulation, consist of the following. On July 4, 1969, one Howard A. Goldenfarb asked Green to assist him in attempting to pull his boat and boat trailer across a part of Nantasket Beach in Hull, Massachusetts, by hauling it with his car. Green assisted Goldenfarb in this operation by (1) lending him equipment consisting of a nylon rope, two shackles and a pulley, (2) hitching the pulley to a telephone pole, and (3) remaining at the trailer with one Dr. Spiro in order to guide it in the proper direction at the time it was to be towed. Goldenfarb attached one shackle to the rear bumper of his car and the other shackle to the trailer on the beach on which his boat was situated, thereby attaching the line to both the car and the trailer. Goldenfarb started the car and began to go forward. At that time Dr. Spiro and Green held onto the tongue of the trailer in order to guide it in the proper direction. When Goldenfarb started to move his car the line tightened and, a few seconds later, slackened. The shackle attached to the rear bumper broke and a fragment struck and fatally injured one Paul Agrippino, a lifeguard. At no time did Green drive the car.

Goldenfarb's boat and trailer were registered to him. The trailer was designed for use with a private passenger motor vehicle and was not being used during the course of the episode for business purposes with another type of motor vehicle.

In actions brought by Agrippino's administratrix against Green and Goldenfarb, Green was represented by counsel selected by National. Liberty entered an appearance for Green through counsel, who were present but did not participate in the defense of the cases at trial. National settled the conscious suffering claim for $20,000 and the wrongful death claim for $25,000. The Middlesex Mutual Insurance Company, which had issued a standard automobile policy to Goldenfarb, contributed an additional $10,000 toward the settlement.

Liberty filed the original petition for declaratory relief in this action. It sought, inter alia, a determination that the motor vehicle policy which it had issued to Green did not provide coverage for the injury to and later death of Agrippino. Liberty also sought a determination of the extent of coverage which National extended to Green pursuant to the "homeowners" policy which National had issued to him.

Liberty's petition annexed a copy of the declaration in an action brought by the administratrix of Agrippino's estate against Green. That declaration, and a later amendment to it, alleged, in substance, that Agrippino's injury and death resulted from the negligence of Green in furnishing such inadequate equipment to Goldenfarb that part of the equipment broke while in use to tow a boat on a trailer, and that a broken portion of the equipment struck Agrippino. National's answer did not deny that its policy covered Green, but asserted that the Liberty policy also covered the accident.

During the course of the trial of the action brought by Agrippino's estate against Green, the matter was settled. Liberty amended its petition to note the settlement and to state that National had paid, in behalf of Green, $20,000 to settle the conscious suffering claim and $25,000 to settle the wrongful death claim.

Thereafter, Liberty's motion to discontinue its own petition was allowed and the petition was dismissed without prejudice. National was then permitted to file a corrected substitute answer and counterclaim. In its substitute answer and counterclaim, National stated that National and Liberty were coinsurers as to Green and that each should, therefore, contribute 50% of the $45,000 settlement which National had paid to Agrippino's estate. Liberty ...


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