Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ramirez v. Commerce Insurance Company

Appeals Court of Massachusetts, Suffolk

March 7, 2017

WRBASY RAMIREZ [1]
v.
COMMERCE INSURANCE COMPANY.

          Heard: November 7, 2016.

         Civil action commenced in the Superior Court Department on February 21, 2014.

         The case was heard by Janet L. Sanders, J., on motions for summary judgment.

          Thomas G. Shapiro for the plaintiff. Nelson G. Apjohn (Eric P. Magnuson also present) for the defendant.

          E. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief.

          Present: Cypher, Massing, & Sacks, JJ.

          CYPHER, J.

         The plaintiff, Wrbasy Ramirez, appeals from a Superior Court judgment entered on a motion for summary judgment filed by Commerce Insurance Company (Commerce). The plaintiff argues that under the standard Massachusetts automobile insurance policy, Commerce must pay, as damages on his third-party claim for the total loss of his automobile, not only the actual cash value of a replacement vehicle, but also the applicable sales tax -- even where he has not purchased a replacement vehicle and incurred the sales tax. We affirm.[2]

         Background.

         The following undisputed facts are taken from the summary judgment record. In January, 2014, the plaintiff was involved in a motor vehicle collision in Danvers with a vehicle driven by Edith McGuinness. Commerce insured McGuiness through a 2008 edition of the standard Massachusetts automobile insurance policy (the policy), which contains language approved by the Commissioner of Insurance.

         The policy included benefits for third-party property damage claims where Commerce determined that its insured was legally responsible for the collision. Specifically, part 4 of the policy provided: "[W]e will pay damages to someone else whose auto or other property is damaged in an accident. The damages we will pay are the amounts that person is legally entitled to collect for property damage through a court judgment or settlement. . . . Damages include any applicable sales tax and the costs resulting from loss of use of the damaged property."

         Under the policy and the regulations at issue here, damages are calculated as follows: "Whenever the appraised cost of repair plus the probable salvage value may be reasonably expected to exceed the actual cash value of the vehicle, the insurer shall determine the vehicle's actual cash value." 211 Code Mass. Regs. § 133.05(1) (2003).[3] This determination shall be based on a consideration of all the following factors: (a) the retail value for an automobile of like kind and quality prior to the accident; (b) the price paid for the automobile plus the value of prior improvements to the automobile at the time of the accident; (c) the decrease in value of the automobile resulting from prior unrelated damage which is detected by the appraiser or for which a claim has been paid; and (d) the actual purchase cost of an available automobile of like kind and quality. Ibid.

         Commerce concluded that its insured was legally liable for the accident and, using the above formula, appraised the plaintiff's automobile as a total loss. Commerce determined that the actual cash value for the automobile was $5, 296. The plaintiff chose to retain the automobile in accordance with the regulations and Commerce established the salvage value of the vehicle accordingly. See 211 Code Mass. Regs. § 133.05(2) ("If the claimant retains title to the vehicle, the appraiser shall obtain bids from two geographically convenient licensed salvage companies. The average of the two bids shall be used as the salvage value"). See also 211 Code Mass. Regs. § 133.06(1) -(3) (2003). Because the plaintiff planned to retain the automobile, Commerce offered him $4, 872.32 to satisfy his claim. That amount represented the difference between the automobile's salvage value of $423.68 and its actual cash value.

         The plaintiff accepted the damages amount, but objected to the omission of the Massachusetts sales tax in the calculation of the amount of his loss. In response, Commerce informed him that he would be reimbursed for sales tax (applied against his automobile's actual cash value) upon proof that he purchased a replacement automobile and incurred the tax. Commerce subsequently sent the plaintiff a check for a total loss amount of $4, 872.32, and a second check for $440 in towing and storage fees in accordance with part 11 of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.