HARRY TATARIAN, individually & as trustee, [Note 1] vs. COMMERCE UNION INSURANCE COMPANY & another. [Note 2]

BROWN, J. Walking across Willard Street in Quincy, the plaintiff, Harry Tatarian, was struck by a passing vehicle. Following this "hit and run" accident, the plaintiff sought to recover under an uninsured motorist provision of a policy issued by the defendant, Commercial Union Insurance Company (Commercial). In a letter dated January 17, 1994, Commercial informed the plaintiff that it was denying his claim. As the basis for this denial, Commercial asserted that, since the policy had been issued to Tatarian Realty Trust (trust) and the trust was the only "named insured" listed

Page 732

under the policy, the plaintiff could not recover for the incident.

On June 6, 1994, the plaintiff filed a complaint in the Superior Court, seeking to recover on violations of G. L. c. 93A, breach of contract, unjust enrichment, detrimental reliance, breach of fiduciary duty, and negligence. Commercial, in response, filed a counterclaim seeking a declaration that the plaintiff is not afforded uninsured motorist coverage under the Commercial policy.

Prior to trial, Commercial moved for summary judgment on all counts. The plaintiff then filed a cross motion for summary judgment on the breach of contract claim (Count IX). The judge denied Commercial's motion and allowed the plaintiff's motion. [Note 3] For the reasons discussed herein, we reverse.

Only a brief recitation of facts is necessary for our discussion. On May 8, 1989, the plaintiff applied for automobile insurance with John C. Gallagher Insurance Agency, Inc., Commercial's agent. Seeking to avail himself of certain tax benefits, the plaintiff insured a vehicle under the name of the trust. [Note 4] Commercial's policy issued to the trust indicates that it provides coverage for "anyone" injured while occupying a covered automobile; it also provides coverage for injuries to the "named insured" and "household members" of the named insured if "injured as a 'pedestrian.'" (As noted, the plaintiff was injured not while occupying a vehicle but while as a pedestrian.) The plaintiff is both the trustee and a beneficiary of the trust, [Note 5] and he is listed on the policy application as the sole driver of the insured vehicle.

A motion for summary judgment is proper where no material facts are in dispute and the moving party is entitled to judgment as matter of law. Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424, 426 (1992). Summary judgment will be upheld on appeal if "certain factors converge to convince us that the trial judge was ruling in this case on undisputed facts

Page 733

and, of course, that [the] ruling was correct as a matter of law." community Natl. Bank v. Dawes, 369 Mass. 550, 556 (1976).

"The responsibility of construing the language of an insurance contract is a question of law for the trial judge, and then for the reviewing court." Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146 (1982). Where the language is clear and unambiguous, we construe the words of the policy according to the fair meaning of the language used, as applied to the subject matter. Johnson v. Hanover Ins. Co., 400 Mass. 259, 266 (1987).

On appeal, Commercial argues that the judge erred in ruling that the plaintiff is afforded coverage under the uninsured motorist provision contained in the policy. Specifically, Commercial asserts that the judge incorrectly based her ruling on Thattil v. Dominican Sisters of Charity of the Presentation of the Blessed Virgin, Inc., 415 Mass. 381 (1993), in which the court held that Sister Thattil was afforded coverage (for injuries sustained when she was hit by a car while walking) under a policy issued to her religious order, despite the fact that she was not a "named insured." [Note 6]

In Thattil, the court expressly limited its holding to the "unique circumstances" of that case. Id. at 390. In rendering its decision, the court emphasized that Sister Thattil's religious vows precluded her from owning an automobile and that "all her personal possessions were given to, and retained as property of, the Dominican Sisters." Id. at 388. Based on these factors, the court concluded that Sister Thattil's identity had "merged" with that of the order, the "named insured," and thus she was entitled to underinsured coverage. [Note 7] Given the peculiar facts of Thattil, we think it is inapposite to the instant circumstances.

Commercial directs this court instead to Jacobs v. United States Fid. & Guar. Co., 417 Mass. 75 (1994). There, an employee, who was injured as a pedestrian (while acting within

Page 734

the scope of his employment), sought to recover under an insurance policy issued to his employer. The policy provided underinsured motorist coverage to, among others, the named insured if injured as a pedestrian. Id. at 76. The court held that the employee could not recover under his employer's policy because he was not a "named insured." In reaching this conclusion, the court rejected the plaintiff's request that the policy be interpreted so as to treat an employee as the "named insured" where the policy provision pertains to natural persons. [Note 8] The court reasoned that such an interpretation would go beyond merely giving effect to policy provisions. Id. at 78.

We conclude that the court's reasoning in Jacobs controls this case in material respects. Here, the policy provided uninsured motorist coverage in instances where the named insured is injured as a pedestrian by an uninsured vehicle. The policy lists "Tatarian Realty Trust," not the plaintiff, as the named insured. Thus, the plaintiff cannot recover pursuant to this particular provision. [Note 9]

The plaintiff argues that Jacobs is distinguishable because in that case the insured entity was a corporation rather than a trust. Although this is true, the plaintiff has failed to persuade this court that a different analysis should therefore apply. [Note 10]

The plaintiff further maintains that in these circumstances he had a reasonable expectation of coverage. "[W]hen construing the language of an insurance policy, it is appropriate 'to consider [whether] an objectively reasonable insured, reading the relevant policy language, would expect to be

Page 735

covered.'" Nashua Corp. v. First State Ins. Co., 420 Mass. 196, 200 (1995), quoting from Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 700 (1990). It cannot reasonably be said that the plaintiff had an expectation of coverage here, where the policy clearly lists the trust as the "named insured." Moreover, we do not believe that this interpretation yields an unconscionable result.

With respect to Commercial's claim that it was entitled to summary judgment on the remaining counts, we decline at this time to consider whether that relief should have been granted, as the refusal to allow a motion for summary judgment is not appealable as a matter of right. See Panesis v. Loyal Protective Life Ins. Co., 5 Mass. App. Ct. 66, 75-76 & n.12 (1977).

Accordingly, the judgment is reversed, and the case is remanded to the Superior Court for entry of a judgment in favor of Commercial on Count IX. That judgment is to be modified to conform to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974). See id. at 76.

So ordered.