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Appeals Court of Massachusetts.



Decided: April 28, 2021

By the Court (Blake, Hanlon & Shin, JJ.2)


Edward P. Holzberg made a claim for collision coverage under a policy issued to him by Metlife Auto and Home Insurance Agency, Inc., and Metropolitan Property and Casualty Insurance Company (together, Metropolitan). After Metropolitan denied coverage, Holzberg brought suit in Superior Court for breach of contract, among other claims. Metropolitan counterclaimed for a declaratory judgment that the policy was void and Holzberg was not entitled to coverage because he made material misrepresentations on his insurance application that increased the risk of loss. On Metropolitan's motion, a judge granted summary judgment for Metropolitan on the counterclaim and dismissed Holzberg's complaint. We affirm.

Background. We summarize the facts set out in the parties' statements of undisputed material facts submitted pursuant to Rule 9A (b) (5) of the Rules of the Superior Court (2018).

In July 2014 Holzberg purchased a Cadillac Fleetwood (Cadillac) to transport clients in connection with his law practice. Holzberg did not intend to drive the clients himself. Instead, he hired a driver, Jonathan Wood, for that purpose.

In August 2014 Holzberg submitted an application to Metropolitan for motor vehicle insurance. Holzberg had not driven the Cadillac prior to that point; Wood, on the other hand, had driven it twice and was paid to do so by Holzberg. Nonetheless, on the application, Holzberg did not name Wood, and named only himself, as someone “who customarily operates” the Cadillac. Metropolitan thereafter issued Holzberg a policy insuring the Cadillac and another vehicle for an annual premium of $1,097. Both the application and the policy provided that the furnishing of “false, deceptive, misleading or incomplete information,” including “the names of ․ customary operators required to be listed,” could result in refusal of coverage and cancellation of the policy.

In December 2014 Wood was driving the Cadillac when he was involved in an accident. Wood had driven the Cadillac eight times before the accident and was paid by Holzberg on each occasion. These were the only times that the Cadillac was operated on the open road.3

In May 2015 Metropolitan denied Holzberg's claim for collision coverage, citing his failure to identify Wood on the application as a customary operator of the Cadillac. An underwriter for Metropolitan determined that, at the time of the application, Wood's driver merit rating was an “8,” compared to Holzberg's merit rating of “99.”4 See Beach v. Commerce Ins. Co., 69 Mass. App. Ct. 720, 722-724 (2007) (describing merit-rating process). Had Holzberg named Wood on the application, Metropolitan would have charged Holzberg an additional premium of $1,514.5

Discussion. We review the grant of summary judgment de novo. See Chambers v. RDI Logistics, Inc., 476 Mass. 95, 99 (2016). Under “long-standing common law principles” and G. L. c. 175, § 186,6 a “material misrepresentation” on an insurance application “may void [the] insurance policy.” Barnstable County Ins. Co. v. Gale, 425 Mass. 126, 128 (1997). See Commerce Ins. Co. v. Gentile, 472 Mass. 1012, 1015 (2015). A misrepresentation “is deemed material if it influences the premium.” Barnstable County Ins. Co., supra.

Holzberg argues that his failure to identify Wood on the insurance application was not a misrepresentation because the term “customary operator” is ambiguous. We disagree. An ambiguity in an insurance policy “is not created simply because a controversy exists between the parties, each favoring an interpretation contrary to the other.” Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998), quoting Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995). Rather, “[a] term is ambiguous only if it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one.” Citation Ins. Co., supra, quoting Jefferson Ins. Co. v. Holyoke, 23 Mass. App. Ct. 472, 474-475 (1987).

Because “customary operator” appears in the standard automobile insurance policy issued by the Commissioner of Insurance, we construe the term “in its usual and ordinary sense.” Chenard v. Commerce Ins. Co., 440 Mass. 444, 445-446 (2003). The ordinary meaning of “customary” is “[c]ommonly ․ used as a matter of course; usual.” American Heritage Dictionary 357 (2d college ed. 1982). Applying that definition here, Wood was a “customary operator” of the Cadillac because he was the usual -- indeed, the only -- person who drove it on the road. Furthermore, Holzberg hired Wood for the very purpose of driving the Cadillac in service of Holzberg's business. That Wood did not have “unbridled access” to the Cadillac did not change the nature of his use, as Holzberg contends. Cf. Turner v. Aetna Cas. & Sur. Co., 36 Mass. App. Ct. 921, 922-923 (1994) (“regular use” exclusion applied even though plaintiff did not have keys to vehicle and always asked owner for permission before driving it). In these circumstances Holzberg cannot plausibly argue that a reasonably intelligent person would not have understood that Wood needed to be identified as a “customary operator” on the insurance application. Holzberg's failure to do so was therefore a material misrepresentation, entitling Metropolitan to void the policy.7

Holzberg also argues that Metropolitan is equitably estopped from denying coverage because of statements made by its agents during the application process. Holzberg has waived this argument, however, because he did not raise it in opposing summary judgment. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). We add that Holzberg has failed to identify any statement made by Metropolitan that would support a credible claim of equitable estoppel.

Judgment affirmed.


3.   Holzberg testified in his deposition that he and another person may have moved the Cadillac from one parking space to another in the parking lot used by his law practice. There is no dispute, however, that Wood was the only person who drove the Cadillac off the property.

4.   Although Holzberg initially disputed Wood's merit rating, he stipulated at the summary judgment hearing that it was in fact an “8.”

5.   Holzberg disputed this fact, and moved to strike the underwriter's affidavit on the basis of lack of personal knowledge. The judge denied the motion to strike, and Holzberg does not challenge that ruling on appeal. We therefore treat the fact as undisputed.

6.   “No oral or written misrepresentation or warranty made in the negotiation of a policy of insurance by the insured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter misrepresented or made a warranty increased the risk of loss.” G. L. c. 175, § 186.

7.   Holzberg raises no contention that the misrepresentation was immaterial.

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Docket No: 20-P-800

Decided: April 28, 2021

Court: Appeals Court of Massachusetts.

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