TOM'S ASHLAND AUTO, INC. v. SAFETY INSURANCE COMPANY

PRINCE, J. The plaintiff, Tom's Ashland Auto Inc. (Tom's), contends on appeal that the District Court erred by allowing the motion by the defendant, Safety Insurance Company ("Safety"), to dismiss Tom's claim for loss of use damages against the insurer. The central question is whether an insured is covered under a Massachusetts automobile insurance policy ("MAIP") for loss of use of a rental vehicle used as substitute transportation. For the following reasons, the order of dismissal is affirmed. [Note 1]

Background. The facts are undisputed. Safety issued a MAIP to its named insured, Dale Cialdea ("Cialdea"). When the policy was in effect, Cialdea's vehicle was involved in a motor vehicle accident and was brought to Tom's in Ashland, Massachusetts, for repairs. While Tom's repaired the vehicle, Cialdea rented a Toyota Highlander from Tom's for $69.99 per day. On June 20, 2018, the Highlander was damaged while unoccupied and parked on Crest Road in Wellesley, Massachusetts. As Cialdea's insurer, Safety paid for the damage to the Highlander under Part 7 ("Collision") of the policy. Part 7 covers direct and accidental damage to "your auto," which is defined as "any auto used as a temporary substitute for the described auto with the consent of the owner while the described auto is out of normal use because of the breakdown, repair, servicing, loss or destruction." Part 7 does not include a provision for loss of use damages.

Tom's alleges that Safety improperly processed the claim under Part 7 and that the claim should have been processed according to the provisions in Part 4 ("Damage to Someone Else's Property"). Under Part 4, Tom's alleges that it is entitled to payment for damage to the Highlander plus loss of use damages of $1,999.25, the amount for twenty-five days for lost use of the vehicle while it was being repaired.

Part 4 of the coverage provides in relevant part:

"Under this Part, we will pay for damage or destruction of the tangible property of others caused by an accident and arising from the ownership, maintenance, or use of an auto, including loading and unloading. The amount we will pay is the amount the owner of the property is legally

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entitled to collect through a court judgment or settlement for the damaged property. We will pay only if you, a household member, or someone else using your auto with your consent is legally responsible for the accident. The amount we will pay includes, if any, applicable sales tax and the loss of use for damaged property."

Part 4, however, also excludes coverage for property damage under certain circumstances. In this case, the applicable exclusion is number 6:

"[Safety] will not pay for property damage which occurs: . . .

"6. To an auto or other property owned by you or the legally responsible person. Similarly, we will not pay for damage to an auto or other property, except for a private residence or garage, which you or the legally responsible person rents or has in his or her care" (emphasis added).

The plaintiff asserts that this exclusionary language in the policy is prohibited by G.L. c. 90, § 34O and, therefore, unenforceable. Safety counters that the policy's plain language excludes coverage in these circumstances and that G.L. c. 90, § 34O does not bar its enforcement.

Tom's arguments have already been considered and rejected by the Appellate Division in almost identical circumstances. Tom's Ashland Auto, Inc. v. Mapfre Ins., 2018 Mass. App. Div. 94. In that case, Mapfre's insured was involved in an accident that caused her to lose the use of her owned car. Id. Like the insured in this case, the insured in Mapfre rented a car from Tom's while her owned car was being repaired. Id. While in possession of Tom's vehicle, the insured was involved in another accident in which she was entirely at fault. [Note 2] Id. The repair of the auto rented from Tom's took thirty-one days, during which Tom's could not use it for rental purposes. Id. The Appellate Division held that Part 4 of the policy, which potentially covers the loss of use claimed here, did not apply because exclusion number 6 of Part 4 excludes payment for damage to an auto the insured rents. Id. at 95. We see no reason to depart from that reasoning here.

Similarly, the Appellate Division has already addressed and rejected Tom's argument that this interpretation conflicts with G.L. c. 90, § 34O:

"The second paragraph of [G.L. c. 90, § 34O] states, 'Every policy of property damage liability insurance shall provide that the insurer will pay on behalf of the insured all sums the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including loss of use thereof . . . .' (emphasis supplied). The plaintiff argues that this is a mandate to pay all claims for loss of use for any damage to someone else's property regardless of the circumstances. However, the statute does not define what constitutes 'loss of use thereof.' Skiffington v. Liberty Mutual Ins. Co., 93 Mass. App. Ct. 1, 4 (2018). The plaintiff also ignores the

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final sentence of the preceding paragraph of § 34O, which states, 'Property damage liability insurance is insurance containing provisions as prescribed in this section, among such other provisions, including conditions, exclusions, and limitations, as the commissioner of insurance may approve.' It was therefore within the authority of the Commissioner of Insurance to fill in the gap when 'decid[ing] what the terms of a standard policy will be.' Colby v. Metropolitan Prop. & Cas. Ins. Co., 420 Mass. 799, 806 (1995)."

Tom's Ashland Auto, Inc., supra at 96. Likewise, we see no conflict between the statute and the policy language approved by the Commissioner of Insurance.

The order dismissing the complaint is therefore affirmed.