Casey v. Metropolitan

October 4, 1994 [NOT FOR PUBLICATION]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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