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Borden v. Progressive Direct Insurance Co.

Appeals Court of Massachusetts, Bristol

May 21, 2015

Rita Borden
v.
Progressive Direct Insurance Company

Argued: November 10, 2014.

As Amended on June 12, 2015.

Civil action commenced in the Superior Court Department on October 9, 2012.

The case was heard by Robert J. Kane, J., on motions for summary judgment.

Joseph A. Keough, Jr., for the plaintiff.

Hillary J. Giles for the defendant.

Present: Rubin, Brown, & Maldonado, JJ.

OPINION

Brown, J.

The single issue presented for review is whether the " automobile business" exclusion contained in a standard Rhode Island automobile policy applies in the circumstances of this case as to preclude coverage. Ruling on cross motions for summary judgment, a judge of the Superior Court concluded that it did, and ordered judgment to enter for the defendant, Progressive Direct Insurance Company (Progressive). We agree and, accordingly, affirm the judgment.[1]

[30 N.E.3d 857] To prevail on appeal, the plaintiff must convince us that there

Page 392

is a dispute of material fact which precludes summary judgment or that the undisputed material facts entitle her to a judgment as matter of law. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). Our review is de novo. See Miller v. Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007).

1. Facts.

The material facts necessary to decide the legal issue before us are undisputed. In 2008, Geraldina Melo purchased a Dodge tow truck solely for the use of her boy friend, Davidson Lues Bucco. On behalf of automobile dealerships, Bucco transported used automobiles by means of the tow truck either (1) from dealer lots to sales auctions or (2) from the auctions to dealer lots. Bucco called his business " David's Towing." He hired Eduardo A. Silva to assist him with the work.[2] Whenever Silva's help was needed, someone from David's Towing would notify ...


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