
USCA1 Opinion

	




        October 4, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                         -2-                                         -2-            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.                                         -3-                                         -3-            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                                         -4-                                         -4-            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                                         -5-                                         -5-            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).                                         -6-                                         -6-            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                                         -7-                                         -7-            [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.                 ________                                         -8-                                         -8-
