HANOVER INSURANCE COMPANY vs. ERIC PASCAR.

GREANEY, J. The plaintiff, Hanover Insurance Company (Hanover), brought a complaint in the Superior Court seeking a declaration pursuant to G. L. c. 231A (1994 ed.), that it was not obligated to pay underinsured motorist benefits to the defendant, Eric Pascar. A judge in the Superior Court considered the case on cross motions for summary judgment, see Mass. R. Civ. P. 56 (a) and (b), 365 Mass. 824 (1974), based on a statement of agreed facts and exhibits. The judge denied Hanover's motion and allowed Pascar's motion. In so

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ruling, the judge rejected Hanover's position that the underinsurance coverage of its policy was not triggered because the limits of that coverage did not exceed the sum of the per person bodily injury liability limits of the policies of the two other responsible tortfeasors. Hanover appealed from the judgment which declared that Pascar could pursue his claim for underinsured motorist benefits against Hanover. We granted Hanover's application for direct appellate review. We now vacate the judgment and direct the entry of a judgment favoring Hanover.

The statement of agreed facts and exhibits indicates as follows. On October 4, 1991, Pascar was a passenger in an automobile driven by Joseph Cannon when the automobile was involved in a multi-vehicle accident. It was agreed that Cannon, and the driver of a second vehicle, Philip Miceli, were responsible, as joint tortfeasors, for Pascar's injuries. Both Cannon and Miceli carried liability insurance on their vehicles which provided bodily injury coverage in the amount of $15,000 per person and $30,000 per accident. Hanover insured Pascar's mother in a policy which provided underinsured motorist coverage of $25,000 per person and $50,000 per accident. [Note 1]

Pascar settled his claims against Cannon and Miceli for $8,000 ($4,000 was paid by each tortfeasor's insurer). [Note 2] Pascar then made a claim against Hanover for underinsurance benefits. [Note 3] Pascar maintained that, under G. L. c. 175, Section 113L

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(2), as amended by St. 1988, c. 273, Section 46, set forth below, [Note 4] and the provisions of Part 12 of the fifth edition standard motor vehicle liability insurance policy, also set forth below, [Note 5] Hanover's underinsurance coverage was triggered because the limit of each single tortfeasor's liability coverage ($15,000 per person) was less than the limit of underinsurance coverage in Hanover's policy ($25,000). Hanover

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maintained that, under the statute and the policy language, reasonably interpreted, particularly in light of the provisions of Part 12 of the sixth edition standard motor vehicle liability policy set forth below [Note 6] (which became effective on January 1, 1993, after the accident in this case), underinsurance benefits were not available because the combined per person limits of the two tortfeasors' coverages ($30,000) exceeded Hanover's limit on underinsurance coverage ($25,000).

We agree with Hanover's position. The applicable statute, G. L. c. 175, Section 113L (2), as amended by St. 1988, c. 273, Section 46, see note 4, supra, does not precisely deal with the question whether a claim may be made against underinsurance coverage when the accident involves multiple joint tortfeasors with combined coverages in excess of the underinsurance limit. The pertinent language in Part 12 of the fifth edition standard motor vehicle liability insurance policy on underinsurance, see note 5, supra, also does not completely address the issue. We are obliged, however, to deal with any imprecision in the statutory scheme by giving G. L. c. 175, Section 113L (2), as amended, a reasonable construction, see Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 190 (1976), which promotes the remedial purposes of the legislation describing the trigger for underinsurance coverage. See Glasser v. Director of the Div. of Employment Sec., 393 Mass. 574, 577 (1984).

The underinsurance legislation and the component statutory provision we are concerned with are remedial in nature and expressly intended to restructure the automobile liability insurance system in a way which lowers rates to the consum-

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ing public while continuing to provide reduced, but effective, levels of coverage. See St. 1988, c. 273, Section 1; Massachusetts Auto Body Ass'n v. Commissioner of Ins., 409 Mass. 770, 772 (1991). The legislation seeks to limit significantly claims upon underinsurance coverage by establishing a trigger to coverage which did not previously exist. The Legislature contemplated an over-all provision reduction rate of 2% from the adoption of the trigger alone. See St. 1988, c. 273, Section 1.

Thus, G. L. c. 175, Section 113L (2), as amended, speaks in terms of underinsurance coverage being available "only to the extent that the [underinsured] motor vehicle coverage limits exceed . . . . limits of bodily injury liability [coverage] . . . ." This language expresses a legislative intent that underinsured motorist benefits are not available if the limits of that coverage are less than the bodily injury coverage available to the injured party from the primary liability policies which insured the joint tortfeasors in this case. This intention would be defeated by the construction suggested by Pascar.

We also think the commissioner's clarification of the issue in the revised language in Part 12 of the sixth edition of the standard motor vehicle liability insurance policy is consistent with his power to express the scope of insurance coverage when statutory purpose is apparent, but a technical application of the statute exposes a gap or previously unconsidered point. The commissioner's action in resolving the problem supports the conclusion we have reached based on the intent expressed in G. L. c. 175, Section 113L (2). See Cleary v. Cardullo's Inc., 347 Mass. 337, 334 (1964) (under ambiguous statute, details of legislative policy not spelled out in statute may appropriately be determined by agency charged with administration of statute).

We note as well that cases from other jurisdictions which have considered this issue (and which also have construed an insurance policy or a statute written in the singular) have concluded that the sum of the personal injury liability limits of separate policies insuring joint tortfeasors should be considered for the purpose of deciding whether underinsured coverage will be available to an injured insured. See Allstate

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Ins. Co. v. Hilbun, 703 F. Supp. 533, 536-538 (S.D. Miss. 1988) (applying Mississippi law); Pinto v. Garretson, 237 N.J. Super. 444, 450-451 (1989).

The judgment is vacated. A new judgment is to enter declaring that the plaintiff, Hanover Insurance Company, has no obligation to furnish "underinsured motorist benefits" to the defendant, Eric Pascar. [Note 7]

So ordered.