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Oliveira v. The Commerce Insurance Co.

Appeals Court of Massachusetts, Suffolk

October 23, 2018

DERRICK MARTINS OLIVEIRA
v.
THE COMMERCE INSURANCE COMPANY.

          Heard: March 9, 2018.

         Civil action commenced in the Superior Court Department on June 22, 2015. The case was heard by Karen F. Green, J., on motions for summary judgment.

          Brad W. Greenberg for the plaintiff.

          John P. Donohue for the defendant.

          Present: Trainor, Meade, Lemire, Ditkoff, & McDonough, JJ. [1]

          DITKOFF, J.

         The plaintiff, Derrick Martins Oliveira, filed suit against the insurer, The Commerce Insurance Company, to obtain coverage as a "household member" under an insurance policy held by the mother and stepfather of his long-term partner, with whom he has a child. To resolve this dispute, we must confront the question whether the phrase "related by blood," in its usual and ordinary sense, reaches two persons with no blood relationship with each other whatsoever, but who each have a blood relationship with a third person. Concluding that the Superior Court judge correctly determined that two persons without a blood relationship with each other are not "related by blood," in the common understanding of the term, we affirm the summary judgment for the insurer.

         1. Background.

         Since 2012, the plaintiff has lived with his long-term partner in a single-family unit with her mother and stepfather. The plaintiff is not married to his partner, but they have a minor son together.

         On July 18, 2014, the plaintiff was injured in a serious single-automobile accident while a passenger in a vehicle owned and operated by a third party. The plaintiff sustained fractures to his spine and ribs, tore ligaments in his knee, and suffered substantial lacerations and scarring on his scalp. He was hospitalized for four days, required long-term disability, and incurred medical bills in excess of $40, 000. The driver was insured under her own policy, and the plaintiff accepted a settlement with the driver and the driver's insurer to the full extent of that policy, $100, 000.[2]

         The insurance company here provided coverage for the two vehicles used by the residents of the plaintiff's home under a policy issued to his partner's mother and stepfather (policyholders). The policy provided, inter alia, $250, 000 of coverage per person in underinsured motorist (UIM) coverage for "damages for bodily injury to people injured or killed as a result of certain accidents caused by someone who does not have enough insurance." The policy for UIM coverage included coverage for:

"1. You, while occupying your auto, while occupying an auto you do not own, or if injured as a pedestrian.
"2. Any household member, while occupying your auto, while occupying an auto not owned by you, or if injured as a pedestrian. If there are two or more policies which provide coverage at the same limits, we will only pay our proportionate share. We will not pay damages to or for any household member who has a Massachusetts auto policy of his or her own or who is covered by a Massachusetts auto policy of another household member providing underinsured auto insurance with higher limits."

         The policy also included a definition for "household member":

"9. Household Member - means anyone living in your household who is related to you by blood, marriage or adoption. This includes wards, step-children or foster children."

         The plaintiff claimed coverage under the policy as a "household member" of the policyholders.[3] The insurer denied the claim, contending that the plaintiff was not eligible for coverage because he did not "meet the definition of a 'household member'" under the policy. In response, the plaintiff filed a complaint in Superior Court, alleging breach of contract and seeking a judgment declaring that the plaintiff was a "household member" under the policy and, as such, was eligible for coverage. On cross-motions for summary judgment, the plaintiff argued that he was related by blood to the policyholders through his biological son and therefore entitled to coverage as a "household member."[4] After a hearing, a judge denied the plaintiff's motion and granted the insurer's motion. The judge found that the plaintiff was not related by blood to either policyholder, and thus he was not a "household member" and was not entitled to UIM coverage under the policy. This appeal followed.

         2. Discussion.

         "We review a grant of summary judgment de novo." Deutsche Bank Nat'1 Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). On appeal, the issue is "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass.App.Ct. 173, 177 (2015), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Here, there is no dispute concerning the material facts, but only concerning the proper construction of the insurance policy.

         Our task is to "construe the words of the policy in their usual and ordinary sense." Mahoney v. American Auto. Ins. Co., 83 Mass.App.Ct. 677, 679 (2013), quoting Hakim v. Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 280 (1997). Because "the language of the policy is determined by the insurance commissioner," construction of the policy language "is exempt from the usual construction against the drafter; rather, it is interpreted in its ordinary sense." Kanamaru v. Holyoke Mut. Ins. Co., 72 Mass.App.Ct. 396, 399 (2008), citing Chenard v. Commerce Ins. Co., 440 Mass. 444, 445-446 (2003).[5]

         In its usual and ordinary sense, the phrase "related by blood" denotes a genetic relationship between the two persons asserted to be related. See Black's Law Dictionary 1402 (9th ed. 2009) (defining "blood relative" as "[o]ne who shares an ancestor with another"). See also Allstate Ins. v. Shelton, 105 F.3d 514, 516-517 (9th Cir. 1997) ("resident relative" requires relationship of blood or affinity; where unmarried partners were living together, child of one partner was not relative of other partner); Remington v. Aetna Cas. & Sur. Co., 35 Conn.App. Ct. 581, 587 (1994) (stepson related by affinity but not by blood); People v.Zajaczkowski, 493 Mich. 6, 14 (2012) (where deoxyribonucleic acid test established that defendant and victim "do not share a relationship arising by descent from a common ancestor," they were not related by blood); Lewis v. Farmers Ins. Exch., 315 Mich. Ct. App. 202, 217 (2016) (automobile insurance policy covering person related "by blood, marriage or adoption" did not reach person whose aunt ...


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