Appeals Court of Massachusetts.

ONEBEACON AMERICA INSURANCE COMPANY

v.

HAFFNER’S SERVICE STATIONS, INC.

No. 08-P-652.

June 18, 2009.

By the Court (RAPOZA, C.J., DUFFLY & COHEN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this declaratory judgment action, a judge of the Superior Court ruled, on the parties’ cross motions for summary judgment, that the plaintiff OneBeacon America Insurance Company (OneBeacon) had no duty to defend or indemnify the defendant Haffner’s Service Stations, Inc. (Haffner’s), in connection with a lawsuit brought against Haffner’s by Walter and Ann Marie Cantwell (the Cantwell case). The Cantwell case arose from a release of oil, originating on the Cantwells’ property, which contaminated an abutting lake. In the Cantwell case, a jury concluded that both the Cantwells and Haffner’s were negligent and legally responsible for the release, and that the equitable shares of response costs (totaling $300,000) were to be borne seventy-five percent by the Cantwells and twenty-five percent by Haffner’s. Judgment therefore entered against Haffner’s in the amount of $75,000.

At issue in the present case is whether a series of Massachusetts business automobile insurance policies issued to Haffner’s by OneBeacon provided coverage for the claims in the Cantwell case. We agree with the motion judge that OneBeacon was entitled to summary judgment because neither the complaint in the Cantwell case, nor, so far as appears from the summary judgment record, the facts developed at the trial of the Cantwell case, concerned a claim for ‘property damage’ … resulting from the ownership, maintenance or use of a covered ‘auto,’ “ as required by the policies’ insuring agreements. (App.209).

Haffner’s provided neither the motion judge nor this court with the transcript of the trial in the Cantwell case. In ascertaining what transpired, the motion judge had the benefit of this court’s unpublished decision in the appeal of that case. Cantwell v. Haffner’s Serv. Stations, Inc., 62 Mass.App.Ct. 1117 (2004).

It is not disputed that Haffner’s interactions with the Cantwells took two different forms: it delivered oil to them, and it also serviced their home heating system. The complaint in the Cantwell case alleged damages resulting from a leak in an underground line connecting the Cantwells’ above-ground oil tank to the oil burner in their basement. It alleged further that Haffner’s, which had sent technicians to the Cantwell home on several occasions to investigate a rise in oil consumption, had failed to identify and repair the leak. Thus, while the complaint called into question Haffner’s general liability as a service company, the complaint did not give rise to a duty to defend on the part of OneBeacon, where it did not “state or adumbrate” a claim arising from the ownership, maintenance, or use of a motor vehicle. See Sterilite Corp. v. Continental Cas. Co., 17 Mass.App.Ct. 316, 318 (1983).

Haffner’s contends that, at least as it developed, the Cantwell case also concerned its negligent delivery of heating oil.Indeed, according to Haffner’s, the jury’s verdict in the Cantwell case must be interpreted as being based upon the negligence of its drivers in failing to notice and report the Cantwells’ excessive oil consumption. (See reply brief at 8-11). We question the accuracy of this view of the Cantwell case.However, even if a claim of this type was asserted and tried, it was not within the coverage provided by OneBeacon.

Haffner’s argues that OneBeacon had extrinsic evidence of the potential for a negligent delivery claim, and received appropriate notice of such a claim prior to trial. OneBeacon disputes these assertions.

Haffner’s argument is at odds with our description of the Cantwell case in our decision on appeal. See note 1, supra.At note 13 of our decision we noted: “There appears to have been adequate evidence from which the jury could have found … Haffner[‘s] negligent. The plaintiffs repeatedly called Haffner[‘s] to make repairs from February, 1992, until April, 1993, complaining of excessive oil consumption and burner failures.”

To be covered under an auto policy, even a claim styled as one for negligent delivery must result from the “use” of an insured vehicle. While “use,” within the meaning of a business auto policy, may include unloading operations, see Metropolitan Property & Cas. Ins. Co. v. Santos, 55 Mass.App.Ct. 789, 796-797 (2002), such coverage is circumscribed by two principles that are relevant here: (1) unloading is complete when the employee has finished all work in which he was participating or expected to participate in order to effectuate the deposit of the goods in the hands of the purchaser, see Travelers Ins. Co. v. Aetna Life & Cas. Co., 410 Mass. 1002, 1004 (1991); and (2) auto coverage is provided only for damages “resulting from” or “arising out of” the covered use.

Our cases do not differentiate between the phrase “resulting from” and the phrase “arising out of.” See Commerce Ins. Co. v. Ultimate Livery Serv., Inc., 452 Mass. 639, 653 n. 14 (2008); American Home Assur. Co. v. First Specialty Ins. Corp., 73 Mass.App.Ct. 1, 4 n. 3 (2008). See also Ruggerio Ambulance Serv., Inc. v. National Grange Mut. Ins. Co., 430 Mass. 794, 795-796 (2000).

Here, the failure of Haffner’s drivers to identify and report an excessive number of fill-ups was not part of the unloading process. Unloading was fully accomplished when the physical process of removing oil from the delivery trucks and placing it as intended into the Cantwell’s storage tank was completed. Furthermore, even if, as Haffner’s maintains, oil would have constantly leaked from the Cantwell’s underground line, including during and after refilling, any such damage was too attenuated from the “use” of the delivery vehicles for it be covered under the policies. While the connection between damages and use need not be as direct as proximate cause, see Bonina v. Marshall, 71 Mass.App.Ct. 904, 905 (2008), an auto policy does not cover all situations where damage would not have occurred “but for” the involvement of the motor vehicle. Id. at 906.See Rischitelli v. Safety Ins. Co., 423 Mass. 703, 704 (1996). As the motion judge correctly ruled, the damage in question here, stemming as it did from an unknown leak beyond the point of delivery, was sufficiently independent from the “use” of the delivery vehicles that it did not result therefrom. See Maryland Cas. Co. v. United Corp. of Mass., 35 F.Supp. 570, 572 (D.Mass.1940).

This case is plainly distinguishable from LaPointe v. Shelby Mut. Ins. Co., 361 Mass. 558, 562 (1972), upon which Haffner’s relies. In LaPointe, the deliveryman’s connection of a propane gas tank at the wrong location was considered part of the unloading process, because installation of the tank in its intended location was necessary to carry out delivery.

On the view we take of the case, we need not discuss the other issues raised. We have considered all of the arguments made by Haffner’s and discern no reason to disturb the summary judgment decision or the motion judge’s procedural rulings.

In particular, there is no need to address the parties’ arguments concerning the MCS-90 Endorsement, as that endorsement, like the policy as a whole, provides coverage only for public liability “resulting from negligence in the operation, maintenance or use of motor vehicles….”

Although we reject the arguments made by Haffner’s, we do not consider them to be frivolous. OneBeacon’s request for attorney’s fees, double costs, and interest is denied.

Judgment affirmed.

Mass.App.Ct.,2009.

OneBeacon America Ins. Co. v. Haffner’s Service Stations, Inc.

Slip Copy, 2009 WL 1687720 (Mass.App.Ct.)

END OF DOCUMENT