ROE v. LAWN; AETNA CASUALTY SURETY CO, Mass., Judgment, Law, casemine.com

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Attorney(S)

J. Michael Conley ( Paul F. Kenney with him) for the plaintiff. John P. Graceffa, for Aetna Casualty and Surety Company, submitted a brief.

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Smart Summary

Factual and Procedural Background

The plaintiff, a minor and a special needs student (identified fictitiously as "Mary Roe" by her mother and next friend), alleges that she was sexually assaulted by Edward J. Lawn, the driver of a school bus owned by Braintree Town Taxi, Inc. (Town Taxi). The plaintiff sued Town Taxi for breach of its nondelegable duty as a common carrier to ensure passenger safety. Town Taxi filed a third-party complaint seeking a declaration that its insurer, Aetna Casualty and Surety Company (Aetna), must defend and indemnify Town Taxi under a business motor vehicle insurance policy issued by Aetna. The policy promised to pay "all sums which [Town Taxi] shall become legally obligated to pay as damages because of bodily injury, sustained by any person, caused by accident and arising out of the ownership, maintenance or use including loading and unloading, of the insured motor vehicle," and stated assault and battery "shall be deemed an accident unless committed by or at the direction of [Town Taxi]." Lawn's assault was not committed by or at the direction of Town Taxi.

In the Superior Court, Judge James P. Lynch, Jr., granted summary judgment for Aetna, concluding Town Taxi's liability did not arise out of the ownership, maintenance, or use of the insured motor vehicle. The Appeals Court reversed, holding the assault arose from the use of the school bus because it occurred within the bus and in the course of the taxi company's duty to transport the plaintiff. See Roe v. Lawn, 34 Mass. App. Ct. 726, 729-730 (1993). The Supreme Judicial Court granted further appellate review and, for the reasons stated below, reversed the Superior Court and remanded for further proceedings. The civil action was commenced on February 23, 1989; the Supreme Judicial Court heard the matter on January 6, 1994, and issued its decision on June 9, 1994.

Legal Issues Presented

Whether a sexual assault occurring within a vehicle owned and operated by a common passenger carrier and committed by an employee of that carrier on a passenger should be deemed to have arisen out of the "ownership, maintenance or use" of that vehicle for purposes of coverage under the carrier's business motor vehicle insurance policy.

Arguments of the Parties

Aetna's Arguments

Aetna argued that the facts of this case are essentially the same as those in Aetna Casualty Sur. Co. v. United States Fidelity Guar. Co., 806 F.2d 302 (1st Cir. 1986), where the First Circuit interpreted Massachusetts law to conclude that a school bus driver's sexual assault on a child he was transporting did not arise out of ownership, maintenance, or use of the bus. Aetna contended that the First Circuit's conclusion, which relied on LaPointe and Sabatinelli, suggests the same result should apply here.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Roe v. Lawn, 34 Mass. App. Ct. 726, 729-730 (1993)	Appeals Court holding that the assault arose from the use of the school bus because it occurred within the bus and in the course of the carrier's duty to transport the plaintiff.	The Supreme Judicial Court agreed with the Appeals Court's result and cited that decision as correctly holding the assault arose from the use of the bus.
Dotts v. Taressa J.A., 182 W. Va. 586 (1990)	Stated the general rule: "Assaults committed on passengers by employees of a bus or taxicab company are usually considered as arising out of [the] ownership, maintenance or use of the vehicle."	Presented as a general rule from other jurisdictions supporting the proposition that such assaults arise out of ownership, maintenance, or use.
Huntington Cab Co. v. American Fidelity Casualty Co., 155 F.2d 117, 120 (4th Cir. 1946)	Explained that "ownership, maintenance or use" do not require the automobile itself to produce the injury; injuries incidental to or growing out of carrier-passenger relationship satisfy the phrase.	Used to show broader doctrinal support that injuries caused by driver violence can be related to use of the vehicle.
Nassau Ins. Co. v. Mel Jo-Jo Cab Corp., 102 Misc.2d 455, 463 (N.Y. Sup. Ct.), aff'd, 78 A.D.2d 549 (N.Y. 1980)	Observed that ownership of a passenger-carrying business entails providing protection from the driver's physical violence to the passenger.	Cited as authority supporting the proposition that ownership of passenger vehicles carries responsibility for passenger protection, including from driver violence.
Butler v. Sequeira, 100 Cal.App.2d 143, 147 (1950)	Cited among cases treating assaults by drivers on passengers as connected to vehicle ownership/use.	Included as supporting authority in the line of cases recognizing such assaults as arising from ownership/maintenance/use.
Connell v. Clark, 88 Cal.App.2d 941, 950 (1948)	Cited among cases treating assaults by drivers on passengers as connected to vehicle ownership/use.	Included as supporting authority.
Maryland Casualty Co. v. Baker, 304 Ky. 296, 303-304 (1947)	Cited among cases treating assaults by drivers on passengers as connected to vehicle ownership/use.	Included as supporting authority.
Suburban Serv. Bus Co. v. National Mut. Casualty Co., 237 Mo. App. 1128, 1132-1133 (1944)	Cited among cases treating assaults by drivers on passengers as connected to vehicle ownership/use.	Included as supporting authority.
Mironov v. New York Mut. Underwriters, 147 A.D.2d 761, 763 (N.Y. 1989)	Cited among cases treating assaults by drivers on passengers as connected to vehicle ownership/use.	Included as supporting authority.
Green Bus Lines v. Ocean Accident Guar. Corp., 287 N.Y. 309, 314-316 (1942)	Cited among cases treating assaults by drivers on passengers as connected to vehicle ownership/use.	Included as supporting authority.
Aetna Casualty Sur. Co. v. United States Fidelity Guar. Co., 806 F.2d 302 (1st Cir. 1986)	First Circuit interpretation of Massachusetts law finding a school bus driver's sexual assault on a child he transported should not be deemed to have arisen out of ownership, maintenance, or use of the bus; that decision relied on LaPointe and Sabatinelli.	Discussed and distinguished: Aetna relied on this decision, but the Supreme Judicial Court concluded the facts here were not analogous to Sabatinelli and disagreed with applying that result to this case.
LaPointe v. Shelby Mutual Ins. Co., 361 Mass. 558 (1972)	Provides that there must be a causal connection between a motor vehicle's use and an injury for the injury to be deemed to have arisen out of ownership, maintenance, or use; explosion from negligently installed propane tank was sufficiently connected.	Recognized as part of Massachusetts precedent requiring a causal connection; distinguished from the present facts inasmuch as LaPointe found a sufficient connection in a different context.
Sabatinelli v. Travelers Ins. Co., 369 Mass. 674 (1976)	Affirms requirement of a causal connection; concluded that the shooting of a pedestrian by an individual seated in a parked automobile was not sufficiently connected to the automobile's use.	The First Circuit relied on Sabatinelli in Aetna's favor; the Supreme Judicial Court determined the facts of this case were not analogous to Sabatinelli and thus that Sabatinelli did not dictate the result here.
Jackson v. Old Colony St. Ry., 206 Mass. 477, 485-486 (1910)	Recognized that a carrier of passengers carries an implied promise of safe passage.	Applied to emphasize that Town Taxi, as a common carrier, carried an implied promise of safe passage to its passengers, a fact relevant to concluding the assault arose out of the use of the bus.
Gilmore v. Acme Taxi Co., 349 Mass. 651 (1965)	Cited in support of the proposition that common carriers carry an implied promise of safe passage.	Used to support the distinction between the present case and Sabatinelli: Town Taxi's status as common carrier informed the court's conclusion.
Hathaway v. Checker Taxi Co., 321 Mass. 406, 411 (1947)	Cited in support of the proposition that common carriers carry an implied promise of safe passage.	Used to bolster the court's reasoning that Town Taxi's carrier status implies a duty of safe carriage relevant to coverage analysis.

Court's Reasoning and Analysis

The court framed the dispute as whether the sexual assault committed by the bus driver on a passenger "arose out of the ownership, maintenance or use" of the insured vehicle. It reviewed authority from other jurisdictions that generally treat assaults by employees of passenger carriers as arising from ownership, maintenance, or use of the vehicle, including a quoted general rule from Dotts and several supporting cases showing that the automobile need not itself produce the injury but that the injury may be incidental to the carrier-passenger relationship.

The court addressed the First Circuit's decision in Aetna Casualty Sur. Co. v. United States Fidelity Guar. Co., which interpreted Massachusetts law to reach the opposite result (that a school bus driver's sexual assault did not arise out of the bus's ownership, maintenance, or use), noting that the First Circuit relied on this court's earlier decisions in LaPointe and Sabatinelli. The Supreme Judicial Court analyzed LaPointe and Sabatinelli as articulating the Massachusetts rule that there must be a causal connection between the motor vehicle's use and the injury to deem the injury to have arisen out of ownership, maintenance, or use. LaPointe was described as finding such a connection (explosion from a negligently installed propane tank connected to the vehicle's use), while Sabatinelli was described as finding no sufficient connection (shooting of a pedestrian by someone seated in a parked car).

The court concluded that the facts of this case differ materially from Sabatinelli. Crucially, the vehicle here was used in the service of a common carrier of passengers and thus carried an implied promise of safe passage, a promise that induced the plaintiff to become a regular passenger. On that basis, and against the backdrop of the line of authorities treating assaults by drivers on passengers as arising from ownership/maintenance/use, the court determined that the assault at issue did arise out of the use of the school bus. The court therefore reversed the Superior Court's summary judgment for Aetna and remanded for further proceedings consistent with this conclusion.

Holding and Implications

The judgment of the Superior Court is REVERSED.

Implications:

The Supreme Judicial Court held that the sexual assault committed by the bus driver on a passenger arose out of the "ownership, maintenance or use" of the insured school bus.
As a direct consequence, the Superior Court's grant of summary judgment in favor of Aetna is vacated and the case is remanded for further proceedings consistent with the opinion.
The opinion aligns this case with other authorities recognizing that assaults by employees of passenger carriers are generally regarded as arising from the ownership, maintenance, or use of the vehicle and distinguishes prior Massachusetts decisions (notably Sabatinelli) on the facts. The court did not purport to resolve every coverage question on remand; rather, it established that the assault here is sufficiently connected to the use of the bus to preclude summary judgment for the insurer on that basis.

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MARY ROE vs. EDWARD J. LAWN others; AETNA CASUALTY AND SURETY COMPANY others, third-party defendants. By her mother and next friend. The name Mary Roe is fictitious. Braintree Town Taxi, Inc.; Braintree Veterans Taxi, Inc.; Braintree Livery Service, Inc.; Eugene F. Maloney, individually, and Eugene F. Maloney and Dorothy M.L. Maloney (also known as Myrtle M. Maloney), trustees of The Malvet Trust. Edward Lee McDermott (doing business as McDermott Insurance Agency) and National Casualty Co.

Insurance, Motor vehicle insurance, Insurer's obligation to defend, Construction of policy. Carrier, Passengers. Words, "Ownership, maintenance or use."

A sexual assault occurring within a vehicle owned and operated by a common passenger carrier and committed by an employee of that carrier on a passenger arose out of the "ownership, maintenance and use" of the vehicle and was within the coverage provisions of the business motor vehicle insurance policy purchased by the carrier. [68-70]

ABRAMS, J.

At issue is whether a sexual assault occurring within a vehicle owned and operated by a common passenger carrier and committed by an employee of that carrier on a passenger should be deemed to have arisen out of the "ownership, maintenance or use" of that vehicle.

1. Background. The plaintiff, a minor and a special needs student, alleges that she was sexually assaulted by Edward J. Lawn, the driver of a school bus owned by Braintree Town Taxi, Inc. (Town Taxi). The plaintiff commenced this action by suing Town Taxi for breach of its nondelegable duty as a common carrier to ensure passenger safety. Town Taxi then brought a third-party action to require its insurer, Aetna Casualty and Surety Company (Aetna), to defend and indemnify Town Taxi with respect to the plaintiff's claim pursuant to the business motor vehicle policy which Aetna issued to Town Taxi. Under the terms of this policy, Aetna agreed to pay "all sums which [Town Taxi] shall become legally obligated to pay as damages because of bodily injury, sustained by any person, caused by accident and arising out of the ownership, maintenance or use including loading and unloading, of the insured motor vehicle." The policy provides that assault and battery "shall be deemed an accident unless committed by or at the direction of [Town Taxi]." Lawn's assault on the plaintiff was not committed by or at the direction of Town Taxi. Nevertheless, the Superior Court judge allowed Aetna's summary judgment motion on the ground that Town Taxi's liability with respect to the assault did not arise out of its ownership, maintenance, or use of the insured motor vehicle. The Appeals Court reversed, holding that the assault arose from the use of the school bus because it occurred within the bus and in the course of the performance of the taxi company's duty to transport the plaintiff. See Roe v. Lawn, 34 Mass. App. Ct. 726, 729-730 (1993). We granted Aetna's application for further appellate review. We think the Appeals Court reached the correct result. We reverse the judgment of the Superior Court.

2. Did the assault arise from the use of the school bus? In Dotts v. Taressa J.A., 182 W. Va. 586 (1990), the Supreme Court of Appeals of West Virginia stated the general rule: "Assaults committed on passengers by employees of a bus or taxicab company are usually considered as arising out of [the] ownership, maintenance or use of the vehicle." Id. at 593, quoting 6C J. Appleman J. Appleman, Insurance Law and Practice § 4468, at 639 (1979). See Huntington Cab Co. v. American Fidelity Casualty Co., 155 F.2d 117, 120 (4th Cir. 1946) ("[the] terms [ownership, maintenance or use] do not . . . require that the automobile itself produce the injury. . . . They are equally satisfied if the injury is incidental to or grows out of the relationship of carrier and passenger which in this form of transportation necessitates personal dealings and contact between the driver and the passenger in the use of the cab. Whether the driver inflicts an injury upon the passenger by reckless management of the vehicle, or so forgets his duty to carry the passenger safely as to inflict an injury upon him by physical violence, in either case the injury is made possible and derives from the use of the cab"); Nassau Ins. Co. v. Mel Jo-Jo Cab Corp., 102 Misc.2d 455, 463 (N.Y. Sup. Ct.), aff'd, 78 A.D.2d 549 (N.Y. 1980) ("Inherently, `ownership' of a business of carrying passengers in a motor vehicle entails providing protection to the traveling public not only from injury inflicted by its driver's reckless management of the vehicle, but also from its driver's physical violence to the passenger"). See also Butler v. Sequeira, 100 Cal.App.2d 143, 147 (1950); Connell v. Clark, 88 Cal.App.2d 941, 950 (1948); Maryland Casualty Co. v. Baker, 304 Ky. 296, 303-304 (1947); Suburban Serv. Bus Co. v. National Mut. Casualty Co., 237 Mo. App. 1128, 1132-1133 (1944); Mironov v. New York Mut. Underwriters, 147 A.D.2d 761, 763 (N.Y. 1989); Green Bus Lines v. Ocean Accident Guar. Corp., 287 N.Y. 309, 314-316 (1942).

In Aetna Casualty Sur. Co. v. United States Fidelity Guar. Co., 806 F.2d 302 (1st Cir. 1986), the United States Court of Appeals for the First Circuit interpreted Massachusetts law as providing that a school bus driver's sexual assault on a child he was transporting to school should not be deemed to have arisen out of the ownership, maintenance, or use of the school bus. In reaching this conclusion, the court relied on our decisions in LaPointe v. Shelby Mutual Ins. Co., 361 Mass. 558 (1972), and Sabatinelli v. Travelers Ins. Co., 369 Mass. 674 (1976).

Our decisions in LaPointe, and Sabatinelli, supra, essentially provide that there must be a causal connection between a motor vehicle's use and an injury for the injury to be deemed to have arisen out of the ownership, maintenance, or use of the motor vehicle. See LaPointe, supra at 563-564; Sabatinelli, supra at 677. In LaPointe, supra, we determined that an explosion caused by a negligently installed propane gas tank was sufficiently connected to the motor vehicle used to deliver the tank to be deemed to have arisen out of the vehicle's use. In Sabatinelli, supra, we concluded that the shooting of a pedestrian by an individual seated in a parked automobile was not sufficiently connected to the automobile to be deemed to have arisen out of its use.

The First Circuit's decision in United States Fidelity Guar. Co., supra, was based on its determination that the facts of Sabatinelli, supra, were sufficiently similar to the facts of United States Fidelity Guar. Co., supra, to permit the decision in the former to dictate the result in the latter. Aetna argues that, because the facts of the instant matter are essentially the same as those of United States Fidelity Guar. Co., supra, the First Circuit's holding in that case suggests the result which we should adopt in this one. We do not agree. The facts of this case are not analogous to the facts of Sabatinelli, supra.

Unlike the automobile in Sabatinelli, supra, Town Taxi's school bus was used in the service of a common carrier of passengers and, therefore, carried an implied promise of safe passage. Jackson v. Old Colony St. Ry., 206 Mass. 477, 485-486 (1910). See Gilmore v. Acme Taxi Co., 349 Mass. 651 (1965); Hathaway v. Checker Taxi Co., 321 Mass. 406, 411 (1947). It was this promise of safe passage which led to the plaintiff's becoming a regular passenger on the bus.

We conclude that the assault at issue arose out of the use of the school bus. The judgment of the Superior Court is reversed and this matter is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

ROE v. LAWN; AETNA CASUALTY SURETY CO