28 Mass. App. Ct. 85

October 13, 1989 - November 22, 1989

Norfolk County


Personal injury protection (PIP) benefits paid to an injured party under an out-of-State automobile insurance policy were to be applied to reduce the benefits payable under the underinsured motorist provisions of a standard Massachusetts policy. [88-91]

CIVIL ACTION commenced in the Superior Court Department on June 16, 1988.

The case was heard by John M. Xifaras, J., on a motion for summary judgment.

Edward A. Gottlieb for the defendants.

Charles F. Corcoran, Jr., for the plaintiff.

KASS, J. Two sets of collisions spawned this appeal: the first between a moving car and a parked car; the second, at a four-way intersection of (a) the Massachusetts "no-fault" statute (St. 1970, c. 670), (b) the Massachusetts uninsured motorist statute, (c) the personal injury protection (PIP) provision of a New York automobile insurance policy, and (d) the underinsured motorist coverage of a Massachusetts policy. [Note 2] Less metaphorically, the case presents the question whether PIP benefits paid under an out-of-State insurance

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policy reduce benefits payable under the underinsured motorist provisions of a Massachusetts policy.

The facts are not in dispute. On June 24, 1983, Douglas Bagley was seriously injured when the automobile in which he was a passenger collided with a parked car in Roslindale, Massachusetts. John Bell of Rochester, New York, owned and operated the moving vehicle at the time of the accident. Bell's car was registered in New York and was insured by the Travelers Indemnity Company (Travelers) under a New York State motor vehicle policy. The New York policy provided $35,000 in liability insurance covering bodily injury and property damage and $50,000 in "Additional Personal Injury Protection" (PIP) benefits.

At the time of the accident, Douglas Bagley was a member of his father's household. The elder Bagley was insured under a Massachusetts motor vehicle policy issued by Amica Mutual Insurance Company which, as required by Massachusetts law, provided $2,000 in PIP benefits and $50,000 [Note 3] in uninsured or underinsured motorist (UM) coverage, the latter extending to the insured's household members. The Amica policy further provided for arbiration to resolve disputes as to the amount of UM benefits due.

In addition to commencing a negligence action against Bell in Superior Court, Douglas submitted a claim for PIP benefits under Bell's New York Travelers policy. Douglas received $50,000 in New York PIP benefits and, with Amica's consent, settled the tort claim for $34,000, that being the balance of Bell's liability coverage. [Note 4]

Douglas then turned to the underinsured motorist coverage of his father's Amica policy for additional recovery. The parties agreed Amica is entitled, through subrogation, to offset any award of UM benefits by the $34,000 paid to Douglas in

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settlement of the tort claim. [Note 5] They locked horns, however, over the calculation of the UM benefits available to Douglas.

Pursuant to the Amica policy, they submitted their dispute to arbitration. Douglas and his father contend that the arbitrator should determine the total amount of compensable damages and then deduct $34,000 to arrive at the UM award. In other words, it is their position that the UM benefits may duplicate the New York PIP benefits Douglas already received. Amica, on the other hand, maintains that the UM benefit award should be the amount by which Douglas' total compensable damages exceed the entire $84,000 he recovered under the New York Travelers policy. Amica concedes that the $50,000 in UM coverage could be applied to the total compensable damages to the extent that the arbitrator finds they exceed $84,000. By way of example, if the arbitrator were to find that Douglas' total compensable damages come to $90,000, Amica agrees that it would be obliged to pay $6,000 from the UM coverage it furnished. The Bagleys claim entitlement to the entire $50,000 UM coverage and, thus, an aggregate recovery of $134,000. Amica prevailed on its summary judgment motion and the Bagleys appealed.

The Bagleys erect their theory for disregarding the $50,000 in PIP benefits on two semantic props. The first, based on statute, is that insurance proceeds paid under PIP coverage do not constitute payments under a liability policy and that only money paid on account of liability may be set off against Massachusetts UM coverage. The second, based on contract, is that the text of the Amica policy (which is in the standard Massachusetts text) provides for setting off amounts paid under another Massachusetts auto policy but as the $50,000 in PIP were paid under a New York policy, they do not count. Neither prop holds weight.

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1. Statutory ground. In support of their first or statutory argument, the Bagleys look to G. L. c. 175, Section 113L(1) and (4), as amended through St. 1980, c. 532, Sections 1 & 2, which require Massachusetts motor vehicle policies to include uninsured and underinsured motorist coverage. Subparagraph (1) speaks to providing compensation due an injured party in the absence or inadequacy of the insurance carried by the person legally responsible. [Note 6] Subparagraph (4) authorizes an insurer who is obligated to pay under UM coverage to take into account any settlement with, or judgment against, the person legally responsible for the injury for which UM payments were, or are to be, made. [Note 7]

Reference to amounts paid by the legally responsible person, the Bagleys argue, encompasses bodily injury liability coverage but not PIP, which is no-fault insurance. It is an artificial separation. The statute which requires carrying no-fault insurance comprehends PIP as part of a motorist's liability policy: "every motor vehicle liability policy . . . executed in this commonwealth shall provide personal injury protection benefits." G. L. c. 90, Section 34M, inserted by St. 1970, c. 670, Section 4. See Pinnick v. Cleary, 360 Mass. 1, 8 (1971). The extent to which older norms of tort liability are not brought into play is "matched to the availability of [PIP] benefits to the plaintiff." Ibid. Vieira v. Schupp, 383 Mass. 739, 741-742 (1981). Similarly, in Bell's New York policy,

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the PIP coverage was set forth as an endorsement to the underlying liability policy. [Note 8]

Perhaps even more to the point, the PIP scheme and UM coverage both have as an objective the avoidance of duplicate recovery. See Mailhot v. Travelers Ins. Co., 375 Mass. 342, 347 (1978); Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171, 177 (1981); Cardin v. Royal Ins. Co. of America, 394 Mass. 450, 454 (1985); 12A Couch on Insurance Section 45:652 (2d ed. 1981). The goal of UM coverage is to protect the public against drivers who lack the insurance or the resources to pay compensation for injuries which those drivers have inflicted. Cardin v. Royal Ins. Co. of America, 394 Mass. at 454. General Laws c. 175, Section 113L, presupposes that UM coverage bridges the gap (to the dollar limits of the UM coverage) between what is collected from the person legally responsible and the compensation due. See Bertassi v. Allstate Ins. Co., 402 Mass. 366, 369-372 (1988); MacInnis v. Aetna Life & Cas. Co., 403 Mass. 220, 225 (1988). Compare Wincek v. United States Fid. & Guar. Co., post 901 (1989), which involved claims by an insured person against his own insurance policies.

We conclude that the statutory framework favors including Bell's New York PIP coverage in the amount to be subtracted from compensable damages for purposes of calculating whether there is to be a call on the Bagleys' UM coverage. Compare DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 96 n.10 (1983).

2. Contractual ground. Without apparent sense of irony the Bagleys seize on language in the standard Massachusetts policy which fends off duplicate recovery to support their entitlement to a double dip into the aggregate policy proceeds. The penultimate paragraph of part 3 of the standard policy, captioned "Bodily Injury Caused by an Uninsured or Underinsured Auto," provides:

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"We will not pay under this Part for any expenses that are payable ... under the PIP coverage of this policy or any other Massachusetts auto policy" (emphasis supplied).

If this language is read literally, PIP coverage proceeds paid under a policy issued in a State other than Massachusetts may not be applied in reduction of UM benefits. The $50,000 in PIP benefits which Douglas Bagley received, it will be recalled, flowed from a New York policy. Although reading the words of an insurance policy, as any contract, in accordance with their ordinary meaning is a sound starting point for construction, Cardin v. Royal Ins. Co. of America, 394 Mass. at 453, that approach is less sound when, as here, the content of a policy is substantially dictated by statute, and the form of the policy is reduced to a standard one. Ibid. See Commerce Ins. Co. v. Koch, 25 Mass. App. Ct. 383, 387 (1988). We are to read the policy so that it is consistent with what the statute prescribes. See Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. at 172-173. Cf. Bilodeau v. Lumbermens Mut. Cas. Co., 392 Mass. 537, 541 (1984).

The statutory scheme, as we have seen, attempts to avoid duplicate recoveries of insurance benefits for the same elements of loss. The $50,000 in PIP benefits paid from the New York policy were directed to compensating the injured party for so much of his injuries (expressed in dollars) as the $34,000 in basic liability insurance did not cover. The Massachusetts UM benefits have the same purpose and may be applied only to the extent Douglas Bagley's compensable injuries exceed the aggregate $84,000 in proceeds received from the New York policy. As in Mailhot v. Travelers Ins. Co., 375 Mass. at 345, our task is to take language which, in application, exposes a gap or previously unconsidered question, and temper it with interpretations which compose, "as far as feasible and reasonable, an harmonious structure faithful to the basic designs and purposes of the Legislature." Ibid.

Our conclusion that, correctly read, the Massachusetts policy requires all proceeds from the New York policy to be

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applied against the underinsured coverage is butterssed by the last sentence of the first paragraph of part 3 of the standard Massachusetts policy:

"We consider an auto be underinsured if the insurance . . . covering the auto or operator is not sufficient to pay for the damage sustained by the injured person."

The quoted language does not differentiate between liability insurance and insurance which becomes payable without regard to establishing fault.

The judgment declaring (in substance) that underinsurance coverage shall be payable to Douglas Bagley only to the extent compensation for his injuries exceeds $84,000 is affirmed.

So ordered.


[Note 1] Gerald P. Bagley, Douglas Bagley's father.

[Note 2] "Navigating the tortuous twists of automobile insurance law poses a challenge at least equal to that faced by the unintiated driver on his first foray into the streets of Boston." Cardin v. Royal Ins. Co. of America, 394 Mass. 450, 452 (1985) (Lynch, J.).

[Note 3] The amount of UM coverage is in excess of the $10,000/$20,000 required. See G. L. c. 90, Section 34A, as amended through St. 1979, c. 611, Section 2, and G. L. c. 175, Section 113L.

[Note 4] Travelers had paid $1,000 to the owner of the parked car that Bell hit.

[Note 5] That right of subrogation rests on G. L. c. 175, Section 113L(4), which states that the UM provider is entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery the injured person has against the person legally responsible for the damage.

[Note 6] Subparagraph (1) of G. L. c. 175, Section 113L, in pertinent part provides: "(1) No policy shall be issued . . . in the commonwealth with respect to a motor vehicle, . . . registered in this state unless such policy provides coverage . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles, . . . whose policies . . . are insufficient in limits of liability to satisfy said damages, to the extent that said damages exceed said limits of liability subject to the terms of the policy."

[Note 7] Subparagraph (4) of G. L. c. 175, Section 113L, in pertinent part provides: "(4) In the event of payment to any person under the coverage required by this section . . . the insurer making such payment shall, . . . be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person . . . legally responsible for the bodily injury for which such payment is made. . . ."

[Note 8] Section II of the New York PIP endorsement defined as an eligible injured person "any other person who sustains personal injury arising out of the use or operation of the insured motor vehicle while occupying the insured motor vehicle."