Oliveira v. Commerce Insurance Company

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
17-P-757 Appeals Court
DERRICK MARTINS OLIVEIRA vs. THE COMMERCE INSURANCE COMPANY.
No. 17-P-757.
Suffolk. March 9, 2018. - October 23, 2018.
Present: Trainor, Meade, Lemire, Ditkoff, & McDonough, JJ.1
Insurance, Motor vehicle insurance, Uninsured motorist,
Coverage. Contract, Insurance. Practice, Civil, Summary
judgment. Words, "Household member," "Related by blood."
Civil action commenced in the Superior Court Department on
June 22, 2015.
The case was heard by Karen F. Green, J., on motions for
summary judgment.
Brad W. Greenberg for the plaintiff.
John P. Donohue for the defendant.
1 This case was initially heard by a panel comprised of
Justices Lemire, Ditkoff, and McDonough. After circulation of a
majority and a dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Justices
Trainor and Meade. See Sciaba Constr. Corp. v. Boston, 35 Mass.
App. Ct. 181, 181 n.2 (1993).
2
DITKOFF, J. The plaintiff, Derrick Martins Oliveira, filed
suit against the insurer, The Commerce Insurance Company, to
obtain coverage as a "household member" under an insurance
policy held by the mother and stepfather of his long-term
partner, with whom he has a child. To resolve this dispute, we
must confront the question whether the phrase "related by
blood," in its usual and ordinary sense, reaches two persons
with no blood relationship with each other whatsoever, but who
each have a blood relationship with a third person. Concluding
that the Superior Court judge correctly determined that two
persons without a blood relationship with each other are not
"related by blood," in the common understanding of the term, we
affirm the summary judgment for the insurer.
1. Background. Since 2012, the plaintiff has lived with
his long-term partner in a single-family unit with her mother
and stepfather. The plaintiff is not married to his partner,
but they have a minor son together.
On July 18, 2014, the plaintiff was injured in a serious
single-automobile accident while a passenger in a vehicle owned
and operated by a third party. The plaintiff sustained
fractures to his spine and ribs, tore ligaments in his knee, and
suffered substantial lacerations and scarring on his scalp. He
was hospitalized for four days, required long-term disability,
3
and incurred medical bills in excess of $40,000. The driver was
insured under her own policy, and the plaintiff accepted a
settlement with the driver and the driver's insurer to the full
extent of that policy, $100,000.2
The insurance company here provided coverage for the two
vehicles used by the residents of the plaintiff's home under a
policy issued to his partner's mother and stepfather
(policyholders). The policy provided, inter alia, $250,000 of
coverage per person in underinsured motorist (UIM) coverage for
"damages for bodily injury to people injured or killed as a
result of certain accidents caused by someone who does not have
enough insurance." The policy for UIM coverage included
coverage for:
"1. You, while occupying your auto, while occupying an
auto you do not own, or if injured as a pedestrian.
"2. Any household member, while occupying your auto, while
occupying an auto not owned by you, or if injured as a
pedestrian. If there are two or more policies which
provide coverage at the same limits, we will only pay our
proportionate share. We will not pay damages to or for any
household member who has a Massachusetts auto policy of his
or her own or who is covered by a Massachusetts auto policy
of another household member providing underinsured auto
insurance with higher limits."
2 There seems to be no dispute, at least for summary
judgment purposes, that this was insufficient to compensate the
plaintiff for the accident.
4
The policy also included a definition for "household
member":
"9. Household Member - means anyone living in your
household who is related to you by blood, marriage or
adoption. This includes wards, step-children or foster
children."
The plaintiff claimed coverage under the policy as a
"household member" of the policyholders.3 The insurer denied the
claim, contending that the plaintiff was not eligible for
coverage because he did not "meet the definition of a 'household
member'" under the policy. In response, the plaintiff filed a
complaint in Superior Court, alleging breach of contract and
seeking a judgment declaring that the plaintiff was a "household
member" under the policy and, as such, was eligible for
coverage. On cross-motions for summary judgment, the plaintiff
argued that he was related by blood to the policyholders through
his biological son and therefore entitled to coverage as a
"household member."4 After a hearing, a judge denied the
plaintiff's motion and granted the insurer's motion. The judge
3 The plaintiff was listed with his partner and her
stepfather on the coverage selections page of the policy as
operators of the two vehicles kept at the residence. Being
listed as an operator, however, does not qualify the plaintiff
for UIM coverage under the policy. See Kanamaru v. Holyoke Mut.
Ins. Co., 72 Mass. App. Ct. 396, 400-401 (2008).
4 The plaintiff conceded he was not related by marriage or
adoption to the policyholders.
5
found that the plaintiff was not related by blood to either
policyholder, and thus he was not a "household member" and was
not entitled to UIM coverage under the policy. This appeal
followed.
2. Discussion. "We review a grant of summary judgment de
novo." Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC,
471 Mass. 248, 252-253 (2015). On appeal, the issue is
"whether, viewing the evidence in the light most favorable to
the nonmoving party, all material facts have been established
and the moving party is entitled to judgment as a matter of
law." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177
(2015), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.
117, 120 (1991). Here, there is no dispute concerning the
material facts, but only concerning the proper construction of
the insurance policy.
Our task is to "construe the words of the policy in their
usual and ordinary sense." Mahoney v. American Auto. Ins. Co.,
83 Mass. App. Ct. 677, 679 (2013), quoting Hakim v.
Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 280
(1997). Because "the language of the policy is determined by
the insurance commissioner," construction of the policy language
"is exempt from the usual construction against the drafter;
rather, it is interpreted in its ordinary sense." Kanamaru v.
6
Holyoke Mut. Ins. Co., 72 Mass. App. Ct. 396, 399 (2008), citing
Chenard v. Commerce Ins. Co., 440 Mass. 444, 445-446 (2003).5
In its usual and ordinary sense, the phrase "related by
blood" denotes a genetic relationship between the two persons
asserted to be related. See Black's Law Dictionary 1402 (9th
ed. 2009) (defining "blood relative" as "[o]ne who shares an
ancestor with another"). See also Allstate Ins. v. Shelton, 105
F.3d 514, 516-517 (9th Cir. 1997) ("resident relative" requires
relationship of blood or affinity; where unmarried partners were
living together, child of one partner was not relative of other
partner); Remington v. Aetna Cas. & Sur. Co., 35 Conn. App. Ct.
581, 587 (1994) (stepson related by affinity but not by blood);
People v. Zajaczkowski, 493 Mich. 6, 14 (2012) (where
deoxyribonucleic acid test established that defendant and victim
"do not share a relationship arising by descent from a common
ancestor," they were not related by blood); Lewis v. Farmers
Ins. Exch., 315 Mich. Ct. App. 202, 217 (2016) (automobile
5 The plaintiff makes no claim that the language chosen by
the Commissioner of Insurance (Commissioner) fails to accord
with G. L. c. 175, § 113L. In any event, "the Commissioner of
Insurance . . . decides what the terms of a standard policy will
be, and the commissioner's interpretation of the relevant
statutes, although not controlling, is entitled to deference."
Colby v. Metropolitan Prop. & Cas. Ins. Co., 420 Mass. 799, 806
(1995) (citations omitted). The Commissioner's language
reflects a reasonable interpretation of "resident relative,"
G. L. c. 175, § 113L (5), as we have previously held. Kanamaru,
72 Mass. App. Ct. at 401.
7
insurance policy covering person related "by blood, marriage or
adoption" did not reach person whose aunt married insured's
uncle). Cf. State Farm Mut. Auto. Ins. Co. v. Boyd, 377
F. Supp. 2d 511, 514-515 (D.S.C. 2005) (former foster child of
insured's brother not related "by blood, marriage or adoption").
Here, there is no genetic relationship between the
plaintiff and the policyholders; rather the plaintiff relies on
the fact that both the plaintiff and one of the policyholders
have a genetic relationship with the plaintiff's child. The
policy, however, covers (for UIM purposes) a person "related to
you [the policyholder] by blood, marriage or adoption," not
someone "who is related by blood to someone you are related to
by blood." Indeed, in the only case we have found to address
this precise issue, Holi v. AIG Haw. Ins. Co., 113 Haw. 196,
197, 206 (Ct. App. 2007), the Hawaii Court of Appeals affirmed a
lower court's ruling that UIM benefits were not available to a
person who lived in the policyholders' household and had a child
with the policyholders' daughter, who was not married to the
injured person at the time of the accident. The lower court had
held that, because the injured person there a lacked a common
ancestor with the policyholders, he was not related by blood to
the policyholders and, therefore, he was not entitled to UIM
8
coverage. Id. at 206.6 The injured person failed even to
challenge this ruling on appeal. Id.Here, the plaintiff requests an expansive definition of
"related by blood." The policy language, however, by
specifically adding "wards, step-children or foster children" to
the persons included in "household member," makes evident that
the meaning of "related . . . by blood, marriage or adoption" is
not suited to further expansion beyond its usual and ordinary
meaning. Otherwise, there would be no need to add those persons
to the definition of "household member." See Balles v. Babcock
Power Inc., 476 Mass. 565, 575 n.17 (2017) (contract should be
interpreted not to render any provision superfluous).
We are, nonetheless, given some pause by Turner v. Lewis,
434 Mass. 331 (2001). In Turner, the Supreme Judicial Court
faced a complaint for an abuse prevention order sought by the
paternal grandmother of a child against the mother, who had
never married the child's father. Id. at 331-332. The
grandmother had custody of the child and, when the grandmother
failed to produce the child at the mother's demand, the mother
6 The plaintiff's complaint in Holi requested a judgment
declaring that that he was "related by blood" to the
policyholders. Holi, 113 Haw. at 198. In the plaintiff's
opposition to the insurance company's motion to dismiss, he
failed to argue that he was related by blood. Id. at 199. The
lower court, nonetheless, addressed the issue and determined
that the plaintiff was not related by blood. Id. at 200.
9
attacked the grandmother and threatened her with more violence.
Id. The Supreme Judicial Court held that "related by blood," as
used in G. L. c. 209A, § 1, was broad enough to include the
relationship between the grandmother and the mother, and thus
the grandmother could seek an abuse prevention order. Turner,
supra at 334.
The reasoning of Turner, however, is not applicable here.
The court in Turner was not applying the usual and ordinary
meaning of the term "related by blood," but rather interpreting
legislative language in light of the Legislature's intent "to
broaden the definition of persons eligible to seek protection
from abuse and domestic violence beyond the 'family' and to also
include other persons having some 'family-like' connection."
Turner, 434 Mass. at 334, quoting Kindregan & Inker, Family Law
and Practice § 57.5 (2d ed. 1996). Noting the "importance of
'giv[ing] broad meaning to the words "related by blood,"' and
considering 'whether the relationship puts the parties into
contact with one another, even though they might not otherwise
seek or wish for such contact,'" the court found the grandmother
eligible to seek protection. Turner, supra, quoting Guidelines
for Judicial Practice: Abuse Prevention Proceedings § 3:02
commentary (Dec. 2000). This was not because that result
tracked the usual and ordinary meaning of "related by blood,"
but because "[t]he relationship [t]here meets the definition of
10
'family,' carrying with it all the risks and problems inherent
in domestic violence." Turner, supra at 336.
Nor is Turner an outlier in this regard. In Silva v.
Carmel, 468 Mass. 18, 23 (2014), when considering the meaning of
persons "residing together in the same household," G. L.
c. 209A, § 1, the Supreme Judicial Court again departed from the
usual and ordinary meaning of that term in favor of implementing
the Legislature's intent. As the court explained, the term
"must be interpreted in the context of the statute's other
definitions of '[f]amily or household members.'" Silva, supra.
Finding again that "the statute's purpose[ is] to prevent
violence in the family setting" and recognizing that the parties
there -- who shared a household in a State-licensed facility for
the developmentally disabled -- were "not in a family-like
relationship with each other," the court declined to extend the
protections of G. L. c. 209A. Silva, 468 Mass. at 23, 24.
By comparison to the Supreme Judicial Court's careful
interpretations in Turner and Silva, the plaintiff's
construction of "related by blood" is breathtaking in its
breadth and yet remarkably disconnected to the asserted policy
goal of covering a broad range of family relationships. Under
the plaintiff's theory, any two persons with a common blood
relative are themselves related by blood. Thus, a person with a
niece is a blood relative of his or her brother-in-law's parents
11
(and grandparents and, for that matter, any genetic relatives).
Indeed, a couple with a biological child would be surprised to
find themselves to be blood relatives.
Nonetheless, the plaintiff's construction is surprisingly
narrow. Had the plaintiff and his partner been a same-sex
couple using an unrelated egg donor, the plaintiff would not be
covered. Were the plaintiff and his partner raising a child
adopted by his partner, the policyholder's daughter, the
plaintiff would not be covered. Had the plaintiff been injured
before the birth of the child, the plaintiff would not be
covered. The plaintiff's construction places value on one
particular flavor of family relationship, to the exclusion of
many others.
Nor is it an answer to suggest (which the plaintiff does
not) that the meaning of "related by blood" might someday be
extended by judicial fiat to persons who lack even a biological
relationship with a common third person. In the G. L. c. 209A
context, every plaintiff promptly sees a judge, who is well
qualified to make a case-by-case determination. Even where the
plaintiff lacks the necessary relationship under G. L. c. 209A,
§ 1, there is value to having the plaintiff come to the court
house and become aware of the resources available to a victim of
abuse. By contrast, individuals need to know whether they are
covered by another individual's policy to determine whether they
12
should obtain their own insurance, and insurance companies need
to know who is covered to determine the proper premium and how
to process claims. In the insurance context, waiting until an
accident and subsequent case-by-case determination of coverage
by a judge is not an adequate solution.
Here, we are not interpreting legislative language in an
attempt to best effectuate the intent of the Legislature.
Instead, we are bound to apply the usual and ordinary meaning of
the words "related by blood." Those words denote a genetic
relationship, and it is undisputed that the plaintiff has none
with either of the policyholders. Because the Superior Court
judge correctly concluded, based on the undisputed facts, that
the plaintiff was not "related by blood" to the policyholders in
the usual and ordinary sense of those words, the judge properly
granted summary judgment to the insurer.
Judgment affirmed.
McDONOUGH, J. (dissenting, with whom Lemire, J., joins).
In Turner v. Lewis, 434 Mass. 331, 334 (2001), the Supreme
Judicial Court concluded that two individuals who were in the
identical material relation to one another as are Derrick
Martins Oliveira and his biological son's maternal grandmother
are "related by blood," as that phrase is read broadly to
advance the protection of domestic abuse victims under G. L.
c. 209A. Contrary to what the majority now holds, the same
essential rules apply to the interpretation of that very same
phrase in the insurance policy, and the statutory phrase from
which it arises ("resident relative"), to advance the protection
of victims of underinsured intoxicated1 (and otherwise negligent)
drivers who seek compensation for injuries through automobile
1 According to Oliveira's sworn answer to an interrogatory,
which is not disputed anywhere in the record before us, he was
the victim of an act of an intoxicated driver. The driver of
the vehicle in which he was a passenger was "highly intoxicated"
and crashed the vehicle into a diesel fuel pump at a fire
station in Charlestown. At least in this case, therefore, a
broad reading of the phrase "related by blood" also would be
consistent with the legislative policy of protecting and
compensating victims of intoxicated drivers; a policy that, most
notably, has prompted the Supreme Judicial Court to take a broad
view of the common law of negligence in "dram shop liability"
cases. See McGuiggan v. New England Tel. & Tel. Co., 398 Mass.
152, 155-162 (1986); Michnik-Zilberman v. Gordon's Liquor, Inc.,
390 Mass. 6, 10-12 (1983); Cimino v. Milford Keg, Inc., 385
Mass. 323, 327 (1982); Adamian v. Three Sons, Inc., 353 Mass.
498, 500-501 (1968).
2
underinsurance coverage. G. L. c. 175, § 113L (5). The same
result, therefore, should follow.
In Massachusetts, automobile insurance is both a statutory
and policy driven creature. Every edition of the standard
Massachusetts automobile insurance policy must comply with all
applicable statutory provisions and be in a form approved by the
Commissioner of Insurance (Commissioner).2 See G. L. c. 175,
§§ 2B, 113A. At the end of the day, however, it is the
underlying statutory scheme that controls, for while the
Commissioner decides what the terms of a standard policy will
be, and his or her interpretation of the relevant statutes is
entitled to deference, that interpretation cannot stand if it is
in conflict with the relevant statutes. See Colby v.
Metropolitan Prop. & Cas. Ins. Co., 420 Mass. 799, 806 (1995).
I thus begin by looking at the policy and statute at issue in
this appeal.
At the time of the accident, Oliveira resided as part of a
single-family unit with his fiancée, their biological son
(child), and the fiancée's biological mother (grandmother) and
stepfather (step-grandfather). There were two motor vehicles in
2 The policy at issue in this case is the 2008 edition.
Thus, the broad definition of "related by blood" enunciated in
Turner, 434 Mass. at 334, preceded by roughly seven years the
Commissioner's promulgation of the policy using the same phrase.
3
the household, both insured under the policy issued by The
Commerce Insurance Company (Commerce) to the grandmother and
step-grandfather. Neither of the vehicles was involved in the
accident, but the policy also included, in pertinent part,
$250,000 per person in underinsured motorist (UIM) coverage.
According to the policy, UIM coverage "will pay damages for
bodily injury to people injured or killed as a result of certain
accidents caused by someone who does not have enough insurance."
The "people" who qualify for UIM coverage are identified in the
policy and include the following:
"1. You, while occupying your auto, while occupying an
auto you do not own, or if injured as a pedestrian.
"2. Any household member, while occupying your auto, while
occupying an auto not owned by you, or if injured as a
pedestrian. If there are two or more policies which
provide coverage at the same limits, we will only pay our
proportionate share. We will not pay damages to or for any
household member who has a Massachusetts auto policy of his
or her own or who is covered by a Massachusetts auto policy
of another household member providing underinsured auto
insurance with higher limits." (Emphasis omitted.)
The terms "you" and "your" are defined in the policy as the
person(s) to whom the policy is issued, as identified on the
coverage selections page. In this case, "you" and "your"
referred to the grandmother and step-grandfather. The term
"household member," meanwhile, is defined as "anyone living in
your household who is related to you by blood, marriage or
4
adoption. This includes wards, step-children or foster
children."
Under G. L. c. 175, § 113L (2), insurers in Massachusetts
are required to make UIM coverage available for purchase at the
option of the policyholder.3 The grandmother and step-
grandfather exercised that option when they purchased the policy
from Commerce. In terms of who is eligible for UIM coverage,
the statute, unlike the policy, does not use the phrase
"household member." Instead, the statute provides, in pertinent
part, that someone in Oliveira's position is eligible for UIM
coverage "from the policy of a resident relative" (emphasis
supplied). G. L. c. 175, § 113L (5).4 The statute does not
define the phrase "resident relative." Nor does it define the
word "relative," which is the portion of "resident relative"
that is relevant here.5
3 UIM coverage was made optional by St. 1988, c. 273, § 46.
See Smart v. Safety Ins. Co., 419 Mass. 144, 148 (1994).
4 General Laws c. 175, § 113L (5), also provides (1) that
the person seeking coverage cannot be a "named insured" on
another policy providing UIM coverage, (2) that the person may
only recover from the policy of a resident relative providing
the highest limits of UIM coverage, and (3) if there are two or
more such policies providing the same limits of UIM coverage, a
pro rata contribution will be made from each. None of these
provisions are in dispute in this case.
5 Commerce originally argued that Oliveira did not reside or
live in the same household as the grandmother, but conceded that
fact for purposes of summary judgment.
5
"When a statute does not define its words we give them
their usual and accepted meanings, as long as these meanings are
consistent with the statutory purpose. . . . We derive the
words' usual and accepted meanings from sources presumably known
to the statute's enactors, such as their use in other legal
contexts and dictionary definitions." (Emphasis supplied.)
Modica v. Sheriff of Suffolk County, 477 Mass. 102, 104 (2017)
(quotation omitted). The word "relative" is commonly understood
to refer to a person related with another by blood or marriage.
See Andrade v. Aetna Life & Cas. Co., 35 Mass. App. Ct. 175, 178
(1993), quoting Black's Law Dictionary 1289 (6th ed. 1990)
("'[R]elative' has been defined as 'a person connected with
another by blood or affinity'"); Merriam-Webster's Collegiate
Dictionary 1050 (11th ed. 2005) (defining "relative" as "a
person connected with another by blood or affinity"). As
previously noted, the policy defines the phrase "household
member" as anyone living in the same household as a policyholder
who is related to the policyholder by, among other things, blood
or marriage. As an initial matter, therefore, the policy
approved by the Commissioner appears consistent with the
statute, at least to the extent relevant to the issue before us.
See Kanamaru v. Holyoke Mut. Ins. Co., 72 Mass. App. Ct. 396,
401 (2008) (concluding that "household member" in insurance
policy is consistent with "resident relative" in G. L. c. 175,
6
§ 113L [5], as "policy provides coverage for a wide range of
relatives who are living in the household"). At the same time,
however, this only leaves the court spinning in a circle, since
the statute, like the policy, does not define "related by
blood."
Which brings us to Turner, the only case in Massachusetts
to consider, under any circumstances, the scope of the phrase
"related by blood."6 There, a grandmother, who had custody of
her biological son's ten year old biological child, sought a
civil abuse prevention order against the child's biological
mother. Turner, 434 Mass. at 331-332. To qualify for
protection under G. L. c. 209A, the grandmother had to be
"related by blood, marriage or household membership" to the
mother. Id. at 332. The mother was neither married to the son
nor a member of the same household as the grandmother. Id. at
331. The issue, therefore, was whether the grandmother and
mother were "related by blood." Id. at 333. The Supreme
The majority suggests that it unearthed one case that
6
addressed the "precise" issue now before the court, Holi v. AIG
Haw. Ins. Co., 113 Haw. 196 (Ct. App. 2007). While the
plaintiff's complaint in Holi, made the same "related by blood"
argument that Oliveira makes here, the plaintiff, for
unspecified reasons, did not raise that argument in his
opposition to the insurance company's motion to dismiss, nor did
he raise it on appeal. See id. at 198, 199, 206. As the issue
was uncontested at both the trial and appellate levels, the Holi
case, therefore, did not exactly "address" the issue.
7
Judicial Court concluded that they were, id. at 334, rejecting
the narrow dictionary definition of the phrase embraced here by
the majority. Again, it is difficult to fathom how the result
could possibly be different here, since the "relationship" at
issue is materially identical.
To reach that seemingly incongruous conclusion, the
majority suggests that different rules apply to the
interpretation of the language of the insurance policy at issue
here than applied when it came to the same language in the
statute at issue in Turner. Specifically, the majority suggests
that here the court is necessarily restricted to construing the
usual and ordinary sense of the phrase "related by blood," while
in Turner, the Supreme Judicial Court construed that same phrase
in light of the Legislature's intent in enacting the domestic
abuse prevention statute -- not in its usual and ordinary sense.
With all due respect, however, the majority's suggestion is
faulty on more than one level.
First, the court in Turner did not fail to consider the
usual and ordinary sense of the phrase "related by blood." The
court detailed the interpretive rules it was applying at the
outset of its analysis: "When statutory language is clear and
unambiguous, the statute must be given its plain meaning. When
the language is less clear, we must interpret the statute
according to the intent of the Legislature ascertained from all
8
its words construed by the ordinary and approved usage of the
language, considered in connection with the cause of its
enactment, the mischief or imperfection to be remedied and the
main object to be accomplished, to the end that the purpose of
its framers may be effectuated" (emphasis supplied).7 Turner,
434 Mass. at 333 (citations and quotations omitted). And, of
course, the court ultimately went on to apply the phrase in a
fairly literal manner, when it concluded that the "paternal
grandmother, through her son, is 'related by blood' to the
child. Likewise, the child and her mother are 'related by
blood.' Thus, the child is 'related by blood' to both parties,
making the mother and grandmother 'related by blood' through
that child." Id. at 334.
Moreover, it is simply wrong to suggest, as the majority
effectively does, that, unlike in Turner, the court is required
to view the usual and ordinary sense of the phrase "related by
blood" in a vacuum, without considering the underlying statute
and its purpose. "We must construe the words of the policy
7 At the very least, the holding in Turner would suggest
that the phrase "related by blood" is ambiguous. See James B.
Nutter & Co. v. Estate of Murphy, 478 Mass. 664, 669 (2018)
("[L]anguage is ambiguous if it is susceptible of more than one
meaning and reasonably intelligent persons would differ as to
which meaning is the proper one" [quotation omitted]). In fact,
the Turner court seems to have conclusively established as much,
by effectively having found the phrase "related by blood" to be
"less clear." See Turner, 434 Mass. at 333.
9
according to the fair meaning of the language used, as applied
to the subject matter, as long as the statutory language or
legislative policy of G. L. c. 175, § 113L, is not contravened.
This is true whether the language of [the] policy is considered
ambiguous or explicit." (Emphasis supplied.) Manning v.
Fireman's Fund Am. Ins. Cos., 397 Mass. 38, 40 (1986) (citations
and quotation omitted). See Massachusetts Insurers Insolvency
Fund v. Premier Ins. Co., 449 Mass. 422, 426-427 (2007) (terms
of standard automobile insurance policy must be construed
"according to the fair meaning of the language used, as applied
to the subject matter" [quotation omitted], and in overall
context of statutory insurance scheme). To that end, I find the
analysis the court undertook in Turner to be both highly
instructive and applicable in this case.
The court in Turner, 434 Mass. at 334, first noted that
"[i]nterpreting the term 'related by blood' to include the
relationship between the grandmother and the mother would be
consistent with the Legislature's purpose in enacting c. 209A."
Specifically, the court noted that the enactment of c. 209A
"reflected [a] significant decision by the legislature . . . to
broaden the definition of persons eligible to seek protection
from abuse and domestic violence." Id. (quotation omitted).
The same is true with respect to the statute that governs UIM
coverage. As the Supreme Judicial Court has acknowledged, G. L.
10
c. 175, § 113L, "was enacted with the broad objective of
ensuring that victims of automobile accidents would be
adequately compensated for their injuries when the accidents are
caused by the negligence of . . . motorists with insufficient or
no liability coverage." Gleed v. Aetna Cas. & Sur. Co., 418
Mass. 503, 508 (1994) (quotation omitted).8 As in Turner,
therefore, the court must "bear in mind the importance of
giv[ing] broad meaning to the words 'related by blood.'"9
Turner, supra (quotation omitted).
The court in Turner, 434 Mass. at 334-335, also took
"judicial notice of the social reality that the concept of
'family' is varied and evolving and that, as a result, different
types of 'family' members will be forced into potentially
unwanted contact with one another. The recent increases in both
single parent and grandparent headed households are two examples
8 While Gleed involved a policy issued at the time that UIM
coverage was compulsory, see note 3, supra, the same broad
objective is still evident now that the coverage is optional.
In fact, the court noted in Gleed, 418 Mass. at 508 n.4, that,
notwithstanding the change in the statute, which had already
occurred, its decision would have been the same.
9 As G. L. c. 175, § 113L(5), is a civil, not a criminal,
statute, the rule of lenity does not apply and the policy's
phrase "related by blood" and statutory word "relative" do not
have to be construed narrowly. See Commonwealth v. Dayton, 477
Mass. 224, 226 (2017) ("[W]here the language of a criminal
statute plausibly can be found ambiguous, the rule of lenity
requires that the defendant receive the benefit of the
ambiguity").
11
of this trend." Further, the court concluded that "[t]hese
trends require that [d]omestic violence statutes [such as G. L.
c. 209A] offer coverage to a wide range of extended family
relationships to fully reflect the reality of American family
life." Id. at 336 (quotation omitted). The Supreme Judicial
Court again took notice of this evolving trend two years later,
when, in a different context, it stated: "The demographic
changes of the past century make it difficult to speak of an
average American family. The composition of families varies
greatly from household to household. Massachusetts has
responded supportively to the changing realities of the American
family and has moved vigorously to strengthen the modern family
in its many variations." Goodridge v. Department of Pub.
Health, 440 Mass. 309, 334 (2003) (quotations and citations
omitted). To these "changing realities" of the modern American
family, the majority turns a blind eye, thereby limiting UIM
coverage to accident victims belonging to conventional families
-- to the exclusion of Oliveira, an unmarried parent and
household member victimized by an underinsured intoxicated
driver. As it happens, one of the areas in which the Supreme
Judicial Court has responded supportively to these changing
realities is in the context of UIM coverage and the scope of the
phrase "household member." In Vaiarella v. Hanover Ins. Co.,
409 Mass. 523, 526-527 (1991), the court recognized, "as have
12
courts in other jurisdictions, that, because modern society
presents an almost infinite variety of possible domestic
situations and living arrangements, the term 'household member'
can have no precise or inflexible meaning."10 The analysis,
therefore, "necessarily must proceed on a case-by-case basis."
Id. at 527.
Disregarding Vaiarella's admonition of flexibility in
defining "household member," as well as Turner's broad
definition of "related by blood," the majority opts instead for
inflexibility and conventionality. In doing so, the majority
spends a fair amount of time conjuring up what it terms
"breathtakingly broad" or "surprisingly narrow" coverage
scenarios that might follow if Oliveira is considered to be
related by blood to his child's maternal grandmother. Engaging
10This court previously noted in Kanamaru, 72 Mass. App.
Ct. at 401-402, that the "language [in Vaiarella] implying
flexible construction of the household member provision . . .
arose in the context of determining which relatives actually
resided in a household. It does not alter the plain meaning of
the definition of 'relative' as outlined in the policy." There
was no dispute in Kanamaru, however, that the plaintiff did not
qualify as a "relative." He was seeking coverage under his
roommate's policy and admitted they were not related by blood,
marriage, or adoption, and that he was not a ward, stepchild, or
foster child of his roommate. See id. at 401. As such, I
consider the court's discussion in Kanamaru of Vaiarella and the
word "relative" to be dicta. I view the language in Vaiarella
implying flexible construction of the phrase "household member"
as being equally applicable to the "resident" and "relative"
aspects of that phrase.
13
in such reductio ad absurdum can prove to be a risky venture.
As suggested in Vaiarella, consideration of other coverage
scenarios is best left for determination on a case-by-case
basis, with more fully formed facts and records. With that
said, I do not find the prospect of Oliveira qualifying for UIM
coverage because he is considered to be related by blood to his
child's maternal grandmother, with whom he resides, to be more
breathtakingly broad than, for example, a person qualifying for
UIM coverage under the policy issued to his or her third cousin,
with whom he or she happens to reside. As the majority would
have it, the phrase "related by blood" is more than flexible
enough to allow for the latter, but not the former.
This is not to say that -- divorced from advancing a
legislative policy -- there is not some appeal to the majority's
holding. Understood in a vacuum, the phrase "related by blood"
does seem to imply that two people must share a common
bloodline, which is only possible if they are both descended
from a common ancestor.11 Indeed, the phrase "blood relative"
has been defined just so. See Merriam-Webster Online
11"Ancestor" is defined as "one from whom a person is
descended and who is usu[ally] more remote in the line of
descent than a grandparent." Merriam-Webster's Collegiate
Dictionary 46 (11th ed. 2005). See Black's Law Dictionary 100
(9th ed. 2009) ("common ancestor" means a "person to whom the
ancestry of two or more persons is traced").
14
Dictionary, https://www.merriam-webster.com/dictionary/blood
20relative [https://perma.cc/5MUR-CY6U] ("blood relative" is
"someone who has the same parents or ancestors as another
person"); Black's Law Dictionary 1402 (9th ed. 2009) ("blood
relative" is "[o]ne who shares an ancestor with another"). Of
course, there is also a certain commonsense appeal to the notion
that the biological father of a child is related, or, to use the
language of the statute at issue here, a "relative" of, the
maternal biological grandmother of the child, even if the father
is not married to the biological mother of the child. Or, to
put it in the same terms as the majority, I think that an
objectively reasonable person in Oliveira's position "would be
surprised to find" himself to not be related to his child's
maternal grandmother, just because he is not married to the
child's mother. The result seems even more surprising given
that Oliveira resided in the same household and formed what can
only be considered a "family," with, among others, the child,
the child's mother, and the child's maternal grandmother. In
any event, this certainly militates in favor of coverage. See
Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 225 (2011)
(when court interprets standard automobile policy, it considers
"what an objectively reasonable insured, reading the relevant
policy language, would expect to be covered" [quotation
omitted]).
15
One final point merits discussion. The majority's holding
extends beyond Oliveira and victims similarly situated. On the
record before the court, it can readily be inferred that the
severe injuries Oliveira suffered in the accident have had a
significant derivative impact, financially or otherwise, on his
family, and, thus, his child, the policyholder's grandson, thus
giving rise to a claim for loss of parental society.12 According
to the policy, UIM coverage is only available for "[a]nyone else
for damages he or she is entitled to recover because of injury
to a person covered under this Part." In other words, UIM
coverage would only be available to the child if, once again,
Oliveira himself qualifies as a "household member." Over thirty
years ago, the Supreme Judicial Court declared, "[o]urs is an
era in which logic and compassion have impelled the law toward
unburdening children from the stigma and the disadvantages
heretofore attendant upon the status of illegitimacy." Powers
v. Wilkinson, 399 Mass. 650, 661 (1987) (overruling traditional
rule of judicial construction and holding that "the word
'issue,' absent clear expressions of a contrary intent, must be
construed to include all biological descendants," including
those born out of wedlock). See Goodridge, 440 Mass. at 334
12There is no mention in the record of whether a claim for
loss of society has yet been pursued on the child's behalf
against the intoxicated driver or against the UIM coverage under
the policy at issue.
16
(Massachusetts has "repudiated the common-law power of the State
to provide varying levels of protection to children based on the
circumstances of birth"). It would seem anomalous, therefore,
that coverage for the child's loss also could be denied merely
because his father and mother did yet not marry -- as recently
as a day or hours before the accident.
In this case, Oliveira and his child are "related by
blood." Likewise, the maternal grandmother, through her
daughter, Oliveira's fiancée, is "related by blood" to the
child. Thus, the child is "related by blood" to both the
maternal grandmother and Oliveira. And, as was the case in
Turner, this makes Oliveira and the grandmother "related by
blood" through that child. I consider this to be the fair
meaning of the language used in the policy, as applied to the
subject matter, consistent with the statutory language and
legislative policy of G. L. c. 175, § 113L. As such, I would
reverse the judgment, allow Oliveira's motion for summary
judgment, deny Commerce's motion for summary judgment, and
declare that Oliveira qualifies as a "household member" under
the policy issued by Commerce to the grandmother and step-
grandfather.