October 4, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2204
PATRICK M. CASEY,
Plaintiff, Appellant,
v.
METROPOLITAN PROPERTY AND LIABILITY INSURANCE COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
Before
Torruella, Cyr and Boudin,
Circuit Judges.
Francis G. Murphy, Jr., with whom Nixon, Hall & Hess, P.A. was on
brief for appellant.
Alice Olsen Mann with whom Karyn T. Hicks and Morrison, Mahoney &
Miller were on brief for appellee.
Per Curiam. In April 1989, Patrick Casey was traveling
in New Hampshire in a Subaru owned and driven by his fiancee,
Susan Donahue. Seeing an injured dog in the lane directly
ahead of them, Donahue parked in the breakdown lane. Casey
got out and picked up the dog in order to take him to a
veterinarian. While Casey was returning to the Subaru but
still about ten feet away from its rear, he was struck by
another car and severely injured. The driver of the other
car, caught after a chase, had a blood alcohol level of .22
per cent, was violating a license restriction requiring
corrective lenses, and had no liability insurance coverage in
effect.
Casey eventually sued Metropolitan Insurance Company
which had insured Donahue's Subaru. Casey claimed to be
covered by the uninsured driver provisions of the policy
which are described below, but Metropolitan denied coverage.
Casey's suit, brought in the New Hampshire superior court,
was removed to federal court. On May 17, 1993, the district
court, based on stipulated facts, ruled on summary judgment
that Casey was not covered under the uninsured motorist
portion of the policy.1
After the district court's ruling on the uninsured
motorist provision, Casey filed a motion to reform the policy
1The court also held that Casey was entitled to benefits
under the policy's personal injury protection provisions.
Metropolitan does not challenge the latter ruling.
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to have himself listed as an additional named insured. The
magistrate-judge rejected this motion, the trial upheld the
ruling, and a final judgment was entered. Casey's appeal
followed. We affirm.
At the threshold, we note that the Metropolitan policy
stated that it was a contract made under, and incorporating,
Massachusetts laws relating to automobile insurance. Donahue
and Casey lived in Massachusetts, and the Subaru was
registered there. On appeal, Casey suggests that New
Hampshire law may be pertinent insofar as its declaratory
action statute under which Casey sued places the burden of
proof to disprove coverage on the insurance company, N.H.
Rev. Stat. Ann. 491:22-a, and New Hampshire courts construe
ambiguities against the insurer. State Farm Mutual Auto Ins.
Co. v. Cookinham, 604 A.2d 563 (N.H. 1992).
Massachusetts law appears to be otherwise as to the
burden of proof. See Kelleher v. American Mutual Ins. Co. of
Boston, 590 N.E.2d 1178, 1180 (Mass. App. Ct.), review
denied, 597 N.E.2d 444 (Mass. 1992). Similarly, where (as
here) the standard policy language is prescribed by statute,
Massachusetts courts do not construe the language against the
insurer. Bilodeau v. Lumbermens Mutual Casualty Co., 467
N.E.2d 137, 140 (1984). It appears to us that the New
Hampshire courts would apply Massachusetts law in this case,
since the policy was made and the car kept in that state.
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See Glowski v. Allstate Ins. Co., 589 A.2d 593, 595 (N.H.
1991); cf. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S.
487 (1941) (in diversity cases the forum state's choice of
law rules govern). As it happens, the burden of proof is
irrelevant where the facts are stipulated, and the policy is
not ambiguous.
We assume favorably to Casey that "the application of
policy language to known facts presents a question of law for
the court," Kelleher, 590 N.E.2d at 1180, and in any event
our review of summary judgment is plenary. The uninsured
motorist portion of the policy, in describing the scope of
coverage, states that "[w]e will pay damages to or for . . .
`[y]ou, or any household member' or `[a]nyone occupying your
auto with your consent at the time of the accident.'" Casey
claims coverage under each of these three alternatives.
We begin with the reference to "you." The introductory
section of the policy states that "[t]his insurance policy is
a legal contract between the policy owner (you) and the
company (we or us)." The "definitions" section then provided
that "[y]ou or [y]our . . . refers to the person named on the
Coverage Selections Page." The page in question states as
item 1 that "this policy is issued to: SUSAN R DONAHUE."
We think it is apparent that Donahue, and not Casey, is
the "you" in question. Although Casey's name appears on the
same page, it is only in the "operator information" section
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as an additional driver of the insured vehicle. In Santos v.
Lumbermen's Mutual Casualty Co., 556 N.E.2d 983, 986 (Mass.
1990), the Supreme Judicial Court construed identical policy
language, finding that "`[y]ou,' . . . refers to the owner of
each policy." Accord Pisani v. Travelers Insurance Co., 560
N.E.2d 155 (Mass. App. Ct. 1990).
We also reject Casey's claim that he qualifies as "a
member of Donahue's household." Casey and Donahue, who later
married, resided together at the time of the accident and
shared expenses including the policy premiums. If the term
were used generically, Casey would have a colorable argument
that he was a member of Donahue's "household." Unfortunately
for him, the policy defines "household member" narrowly as
meaning "anyone living in your household who is related to
you by blood, marriage, or adoption." At the time of the
accident Casey was not related to Donahue by blood, marriage,
or adoption, and thus fails to qualify under this explicit
and unambiguous requirement.
Vaiarella v. Hanover Ins. Co., 567 N.E.2d 916, 919
(Mass. 1991), relied upon by Casey, is not in point. It
involved a mother who sought coverage under her son's
uninsured motorist policy; as mother and son were obviously
related by blood, the question of concern to the court was
whether the mother was "living in [the policyholder's]
household." The court never suggested that a close friend
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who lived in the same house and acted in a motherly fashion
could be deemed to be "related . . . by blood, marriage, or
adoption."
Casey's final argument is that when the accident
occurred he was "occupying" the vehicle with the Donahue's
consent. The Metropolitan policy defines "occupying" as
embracing one who is "in, upon, entering into, or getting out
of" the insured vehicle. Casey cites a number of cases from
jurisdictions other than Massachusetts that have dramatically
expanded the definition of "occupying" in the auto insurance
context.2
Massachusetts courts, however, have given the term
"occupying" in auto insurance contracts a more limited
meaning. In Kelleher, 590 N.E.2d at 1180, Kelleher was
struck by an uninsured motorist just after getting out of his
vehicle and starting to cross the street; although Kelleher
was approximately three to four feet away at the time of the
accident, the court held that Kelleher had "completely
severed his relationship with the vehicle." Id. at 1180.
Even if Kelleher could be distinguished, somewhat doubtfully,
because the claimant was leaving rather than returning to the
car, a second Massachusetts case is even more damaging to
2See, e.g., State Farm v. Cookinham, 604 A.2d 563 (N.H.
1992); Horace Mann Ins. Co. v. Neuville, 465 N.W.2d 432, 434
(Minn. Ct. App. 1991); Miller v. Loman, 518 N.E.2d 486 (Ind.
Ct. App. 1987).
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Casey. In Rosebrooks v. National General Ins. Co., 434
N.E.2d 675 (Mass. App. Ct.), review denied, 440 N.E.2d 1177
(Mass. 1982), the court found that the claimant Rosebrooks
was not "entering" the insured vehicle even though she was
about to enter the car, was two to three feet from the door
handle when she fell, and was touching the vehicle with her
hand at the moment of the accident. Id. at 677.
It is sad that Casey, commendably engaged in a
humanitarian gesture when injured, should apparently be left
with little insurance protection for what were clearly awful
injuries. But we are not free to alter what appears to be
the reasonably clear message of Massachusetts precedents. If
Massachusetts wishes to follow what Casey has described as
"the clear modern trend of case law" to embrace a broader
meaning of "occupying," that step must be taken by the
Massachusetts courts. We conclude that Casey falls into none
of the three alternative categories that qualify for
uninsured motorists protection under this policy.
Finally, Casey seeks review of the refusal to allow him
to amend his complaint, after summary judgment against him,
to seek reformation of the Metropolitan policy in order to
list him as an additional named insured. Even assuming that
Donahue and Casey were under a mistaken apprehension as to
coverage, there is no reason to believe that Metropolitan
shared this misapprehension, creating a "mutual mistake
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[which] is reformable," Polaroid Corp. v. Travelers Indem.
Co., 610 N.E.2d 912, 917 (Mass. 1993), nor is there any
indication that this is a case of mistake "made by one party
and known to the other party." Id. Under these
circumstances, and in light of the failure of Casey to assert
this claim before summary judgment had been granted against
him, we think that there is no abuse of discretion in the
district court's refusal to grant the belated motion to add
the new claim. See Kennedy v. Josephthal & Co., 814 F.2d
798, 806 (1st Cir. 1987).
Affirmed.
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