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Monticello Insurance Co. v. Dion11/3/2005
Middlesex.
April 4, 2005.
Present: Armstrong, C.J., Lenk, & Cowin, JJ.
Insurance, Liability insurance, Coverage.
Civil action commenced in the Superior Court Department on November 3, 2000.
The case was heard by Eleanor S. Garsh, J., on motions for summary judgment.
Defendant Paul Dion, doing business as All the Answers Tree Service, was making a chain saw cut preparatory to felling a large tree when the tree snapped and fell the wrong way. It struck and killed defendant Price's decedent, Doreen C. Mellen, who was a cousin of Dion and who had been operating a wood-chipping machine on the same job. It is not unlikely that the noise from the machine made it impossible for Mellen to hear Dion's shouted warning.
Dion carried a commercial general liability policy written by the plaintiff, Monticello Insurance Company, which brought this declaratory judgment action to determine whether the policy covered Dion's potential liability to Mellen's estate. Acting on Monticello's motion for summary judgment, a Superior Court judge ruled that the policy did not cover the liability, and the defendants appealed.
Commercial general liability (CGL) policies are, in general, intended to protect an insured employer against liability for losses to third parties arising out of the operation of the insured's business. 9 Couch, Insurance § 129.2 (3d ed. 1997). Injuries to employees are typically excluded from coverage, id. at § 129.7, as the expectation is that the employer will have in place workers' compensation insurance (or self-insurance) in one of the forms made compulsory by G. L. c. 152, § 25A.
On the evidence before the motion judge, there was, as the judge recognized, an unresolved question of fact whether Mellen had been working the job as an employee or as an independent contractor. The policy provided coverage for "sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' . . . to which this insurance applies." "Bodily injury" is covered only if it is "caused by an 'occurrence,'" which is defined to include "an accident," thus including the injury to Mellen; and "bodily injury" includes "death resulting from [bodily injury]." Specifically excluded from coverage, however, are
"d. . . . Any obligation of the insured under a workers' compensation . . . law . . . ."
"e. 'Bodily injury' to:
(1) An 'employee' of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured's business."
The word "employee" is defined to include a "leased worker" but to exclude a "temporary worker." The term "leased worker" means "a person leased to you by a labor leasing firm . . . to perform duties related to the conduct of your business." The term "' emporary worker' means a person who is furnished to you to substitute for a permanent 'employee' on leave or to meet seasonal or short-term workload conditions."
Lastly, the policy was supplemented by an optional "independent contractors exclusion," which presumably reduced the premium, so that the policy did not cover "'bodily injury' . . . arising out of the operations performed for the named insured by independent contractors or acts or omissions of the named insured in connection with the insured's general supervision of such operations."
Interpreting these policy terms, the judge ruled, first, that if Mellen was an independent contractor, her death "ar out of operations performed for" Dion because she would not have been in a position to b
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