McHUGH, J.
On November 13, 1997, Alonzo McConnico, an
Background. After the accident, the estate filed a wrongful death action against McConnico and Dollar, though for reasons the record does not fully reveal, Dollar was dismissed from that action by stipulation. McConnico was defaulted for failing to appear and the action proceeded to a jury trial on damages. The jury returned a verdict in the amount of $203,357. Claiming that the verdict was inadequate, the estate appealed. We affirmed in an unpublished memorandum and order pursuant to our rule 1:28. See Kohlmeyer v. McConnico, 74 Mass.App.Ct. 1111 (2009).
While the estate's case was proceeding, United commenced the present action against the estate and McConnico in an effort to obtain a declaration effectively shielding it from liability under an excess liability insurance policy it had issued to Dollar. The policy, which had a per accident limit of $900,000, was in force on the day of McConnico's accident.
United's declaratory judgment action came on for trial after judgment had entered in the estate's case but before the estate filed its appeal.
Less clear was whether and to what extent Dollar had authorized or permitted McConnico to drive the vehicle. The evidence presented by Dollar tended to support the proposition that McConnico had no authority or permission whatsoever. That evidence included McConnico's written acknowledgment at the time he was hired that he was prohibited from using company rental vehicles unless he did so under the direction of a Dollar manager and that unauthorized use of Dollar's vehicles was grounds for discharge. McConnico testified at trial that he was not driving the automobile for any business purpose at the time of the accident, that he had never before taken a Dollar vehicle home overnight, that he knew of no other Dollar employee who had done so without express permission, and that he had tried unsuccessfully to get in touch with his manager to obtain permission to drive before he took the automobile on the night in question. Other Dollar employees testified about the prohibition on personal use of Dollar vehicles, that McConnico had no permission to drive the vehicle home, and that McConnico had been fired on the morning of the accident for violating the Dollar policy.
The estate's evidence tended to show a much looser arrangement, one in which personal use of Dollar automobiles was commonplace and few employees were reprimanded for doing so. Although written Dollar policies prohibited employees from personal use of Dollar vehicles, the policies were neither enforced nor stressed during the course of training. The working environment was "fast-paced" and employees often took automobiles without asking for permission to do so. The evidence also suggested that when McConnico was placed in charge of the facility with instructions to close and reopen it, he had the
The factual questions thus raised were sent to the jury for a special verdict consisting of the answer to a single question. See Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974). The question read, "[d]oes the evidence establish that, more probably than not, McConnico was an unauthorized driver of Dollar Rent-A-Car's motor vehicle when the accident occurred?" The jury checked the box marked "yes" on the verdict form and orally affirmed the verdict in open court.
The issue that divides the parties here, as it divided them in the Superior Court, concerns the instructions the judge gave to the jury. In essence, the judge told the jury that United was required to prove that McConnico did not have permission to use the vehicle at the time and place he was using it when the accident occurred.
The estate sought an instruction based on G. L. c. 231, § 85C, to the effect that McConnico was presumed at the time of the accident to be driving the vehicle with Dollar's express or implied consent.
Discussion. The presumption embodied in G. L. c. 231, § 85C, is part of a legislative structure supporting the Commonwealth's compulsory motor vehicle insurance requirements. Read in the context of the statutes to which § 85C refers, the support structure operates in this fashion. An insurer's liability under an automobile policy "insuring against liability for loss or damage on account of bodily injury or death" becomes absolute when a covered loss occurs and is not conditioned on an insured's payment of the loss to the injured party. See G. L. c. 175, § 112, amended by St. 1977, c. 437. If the injured party obtains a judgment against the insured, the injured party is entitled to bring an action against the insurer to reach and apply the insurance proceeds. See G. L. c. 175, § 113; G. L. c. 214, § 3(9). In an action to reach and apply, the presumption desired by the estate applies but, as § 85C expressly states, only if the plaintiff is seeking to "reach and apply the proceeds of [a] motor vehicle liability policy, as defined in" G. L. c. 90, § 34A.
That limitation provides the first obstacle in the estate's path on this appeal, for the liability policy defined in G. L. c. 90, § 34A, is the compulsory policy required of all vehicles registered in Massachusetts. Applying the presumption to that policy facilitates the public protection that for years has provided the basis for the compulsory requirement itself. See generally Oliveria v. Preferred Acc. Ins. Co., 312 Mass. 426, 429 (1942). Cf. Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins.
There is, though, a second hurdle. Ordinarily, the insured, or someone standing in the shoes of the insured, is required to prove coverage. See Markline Co. v. Travelers Ins. Co., 384 Mass. 139, 140 (1981). In seeking recovery under United's policy, the estate was standing in the shoes of McConnico or Dollar or both. The presumption would have eased the estate's burden initially, but it was "rebuttable, and continue[d] only until evidence [was] introduced which would warrant a finding contrary to the presumed fact." Scaltreto v. Shea, 352 Mass. 62, 64 (1967).
Two other issues require less discussion. First, the estate requested an instruction on bailment, which the judge rightly declined to give.
Finally, the estate sought an instruction on agency that the judge also rightly rejected.
Judgment affirmed.