Oliveira v. Commerce Insurance Company

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17-P-757 Appeals Court

DERRICK MARTINS OLIVEIRA vs. THE COMMERCE INSURANCE COMPANY.

No. 17-P-757.

Suffolk. March 9, 2018. - October 23, 2018.

Present: Trainor, Meade, Lemire, Ditkoff, & McDonough, JJ.1

Insurance, Motor vehicle insurance, Uninsured motorist,
Coverage. Contract, Insurance. Practice, Civil, Summary
judgment. Words, "Household member," "Related by blood."

Civil action commenced in the Superior Court Department on
June 22, 2015.

The case was heard by Karen F. Green, J., on motions for
summary judgment.

Brad W. Greenberg for the plaintiff.
John P. Donohue for the defendant.

1 This case was initially heard by a panel comprised of
Justices Lemire, Ditkoff, and McDonough. After circulation of a
majority and a dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Justices
Trainor and Meade. See Sciaba Constr. Corp. v. Boston, 35 Mass.
App. Ct. 181, 181 n.2 (1993).
2

DITKOFF, J. The plaintiff, Derrick Martins Oliveira, filed

suit against the insurer, The Commerce Insurance Company, to

obtain coverage as a "household member" under an insurance

policy held by the mother and stepfather of his long-term

partner, with whom he has a child. To resolve this dispute, we

must confront the question whether the phrase "related by

blood," in its usual and ordinary sense, reaches two persons

with no blood relationship with each other whatsoever, but who

each have a blood relationship with a third person. Concluding

that the Superior Court judge correctly determined that two

persons without a blood relationship with each other are not

"related by blood," in the common understanding of the term, we

affirm the summary judgment for the insurer.

1. Background. Since 2012, the plaintiff has lived with

his long-term partner in a single-family unit with her mother

and stepfather. The plaintiff is not married to his partner,

but they have a minor son together.

On July 18, 2014, the plaintiff was injured in a serious

single-automobile accident while a passenger in a vehicle owned

and operated by a third party. The plaintiff sustained

fractures to his spine and ribs, tore ligaments in his knee, and

suffered substantial lacerations and scarring on his scalp. He

was hospitalized for four days, required long-term disability,
3

and incurred medical bills in excess of $40,000. The driver was

insured under her own policy, and the plaintiff accepted a

settlement with the driver and the driver's insurer to the full

extent of that policy, $100,000.2

The insurance company here provided coverage for the two

vehicles used by the residents of the plaintiff's home under a

policy issued to his partner's mother and stepfather

(policyholders). The policy provided, inter alia, $250,000 of

coverage per person in underinsured motorist (UIM) coverage for

"damages for bodily injury to people injured or killed as a

result of certain accidents caused by someone who does not have

enough insurance." The policy for UIM coverage included

coverage for:

"1. You, while occupying your auto, while occupying an
auto you do not own, or if injured as a pedestrian.

"2. Any household member, while occupying your auto, while
occupying an auto not owned by you, or if injured as a
pedestrian. If there are two or more policies which
provide coverage at the same limits, we will only pay our
proportionate share. We will not pay damages to or for any
household member who has a Massachusetts auto policy of his
or her own or who is covered by a Massachusetts auto policy
of another household member providing underinsured auto
insurance with higher limits."

2 There seems to be no dispute, at least for summary
judgment purposes, that this was insufficient to compensate the
plaintiff for the accident.
4

The policy also included a definition for "household

member":

"9. Household Member - means anyone living in your
household who is related to you by blood, marriage or
adoption. This includes wards, step-children or foster
children."

The plaintiff claimed coverage under the policy as a

"household member" of the policyholders.3 The insurer denied the

claim, contending that the plaintiff was not eligible for

coverage because he did not "meet the definition of a 'household

member'" under the policy. In response, the plaintiff filed a

complaint in Superior Court, alleging breach of contract and

seeking a judgment declaring that the plaintiff was a "household

member" under the policy and, as such, was eligible for

coverage. On cross-motions for summary judgment, the plaintiff

argued that he was related by blood to the policyholders through

his biological son and therefore entitled to coverage as a

"household member."4 After a hearing, a judge denied the

plaintiff's motion and granted the insurer's motion. The judge

3 The plaintiff was listed with his partner and her
stepfather on the coverage selections page of the policy as
operators of the two vehicles kept at the residence. Being
listed as an operator, however, does not qualify the plaintiff
for UIM coverage under the policy. See Kanamaru v. Holyoke Mut.
Ins. Co., 72 Mass. App. Ct. 396, 400-401 (2008).

4 The plaintiff conceded he was not related by marriage or
adoption to the policyholders.
5

found that the plaintiff was not related by blood to either

policyholder, and thus he was not a "household member" and was

not entitled to UIM coverage under the policy. This appeal

followed.

2. Discussion. "We review a grant of summary judgment de

novo." Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC,

471 Mass. 248, 252-253 (2015). On appeal, the issue is

"whether, viewing the evidence in the light most favorable to

the nonmoving party, all material facts have been established

and the moving party is entitled to judgment as a matter of

law." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177

(2015), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.

117, 120 (1991). Here, there is no dispute concerning the

material facts, but only concerning the proper construction of

the insurance policy.

Our task is to "construe the words of the policy in their

usual and ordinary sense." Mahoney v. American Auto. Ins. Co.,

83 Mass. App. Ct. 677, 679 (2013), quoting Hakim v.

Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 280

(1997). Because "the language of the policy is determined by

the insurance commissioner," construction of the policy language

"is exempt from the usual construction against the drafter;

rather, it is interpreted in its ordinary sense." Kanamaru v.
6

Holyoke Mut. Ins. Co., 72 Mass. App. Ct. 396, 399 (2008), citing

Chenard v. Commerce Ins. Co., 440 Mass. 444, 445-446 (2003).5

In its usual and ordinary sense, the phrase "related by

blood" denotes a genetic relationship between the two persons

asserted to be related. See Black's Law Dictionary 1402 (9th

ed. 2009) (defining "blood relative" as "[o]ne who shares an

ancestor with another"). See also Allstate Ins. v. Shelton, 105

F.3d 514, 516-517 (9th Cir. 1997) ("resident relative" requires

relationship of blood or affinity; where unmarried partners were

living together, child of one partner was not relative of other

partner); Remington v. Aetna Cas. & Sur. Co., 35 Conn. App. Ct.

581, 587 (1994) (stepson related by affinity but not by blood);

People v. Zajaczkowski, 493 Mich. 6, 14 (2012) (where

deoxyribonucleic acid test established that defendant and victim

"do not share a relationship arising by descent from a common

ancestor," they were not related by blood); Lewis v. Farmers

Ins. Exch., 315 Mich. Ct. App. 202, 217 (2016) (automobile

5 The plaintiff makes no claim that the language chosen by
the Commissioner of Insurance (Commissioner) fails to accord
with G. L. c. 175, § 113L. In any event, "the Commissioner of
Insurance . . . decides what the terms of a standard policy will
be, and the commissioner's interpretation of the relevant
statutes, although not controlling, is entitled to deference."
Colby v. Metropolitan Prop. & Cas. Ins. Co., 420 Mass. 799, 806
(1995) (citations omitted). The Commissioner's language
reflects a reasonable interpretation of "resident relative,"
G. L. c. 175, § 113L (5), as we have previously held. Kanamaru,
72 Mass. App. Ct. at 401.
7

insurance policy covering person related "by blood, marriage or

adoption" did not reach person whose aunt married insured's

uncle). Cf. State Farm Mut. Auto. Ins. Co. v. Boyd, 377

F. Supp. 2d 511, 514-515 (D.S.C. 2005) (former foster child of

insured's brother not related "by blood, marriage or adoption").

Here, there is no genetic relationship between the

plaintiff and the policyholders; rather the plaintiff relies on

the fact that both the plaintiff and one of the policyholders

have a genetic relationship with the plaintiff's child. The

policy, however, covers (for UIM purposes) a person "related to

you [the policyholder] by blood, marriage or adoption," not

someone "who is related by blood to someone you are related to

by blood." Indeed, in the only case we have found to address

this precise issue, Holi v. AIG Haw. Ins. Co., 113 Haw. 196,

197, 206 (Ct. App. 2007), the Hawaii Court of Appeals affirmed a

lower court's ruling that UIM benefits were not available to a

person who lived in the policyholders' household and had a child

with the policyholders' daughter, who was not married to the

injured person at the time of the accident. The lower court had

held that, because the injured person there a lacked a common

ancestor with the policyholders, he was not related by blood to

the policyholders and, therefore, he was not entitled to UIM
8

coverage. Id. at 206.6 The injured person failed even to

challenge this ruling on appeal. Id.

Here, the plaintiff requests an expansive definition of

"related by blood." The policy language, however, by

specifically adding "wards, step-children or foster children" to

the persons included in "household member," makes evident that

the meaning of "related . . . by blood, marriage or adoption" is

not suited to further expansion beyond its usual and ordinary

meaning. Otherwise, there would be no need to add those persons

to the definition of "household member." See Balles v. Babcock

Power Inc., 476 Mass. 565, 575 n.17 (2017) (contract should be

interpreted not to render any provision superfluous).

We are, nonetheless, given some pause by Turner v. Lewis,

434 Mass. 331 (2001). In Turner, the Supreme Judicial Court

faced a complaint for an abuse prevention order sought by the

paternal grandmother of a child against the mother, who had

never married the child's father. Id. at 331-332. The

grandmother had custody of the child and, when the grandmother

failed to produce the child at the mother's demand, the mother

6 The plaintiff's complaint in Holi requested a judgment
declaring that that he was "related by blood" to the
policyholders. Holi, 113 Haw. at 198. In the plaintiff's
opposition to the insurance company's motion to dismiss, he
failed to argue that he was related by blood. Id. at 199. The
lower court, nonetheless, addressed the issue and determined
that the plaintiff was not related by blood. Id. at 200.
9

attacked the grandmother and threatened her with more violence.

Id. The Supreme Judicial Court held that "related by blood," as

used in G. L. c. 209A, § 1, was broad enough to include the

relationship between the grandmother and the mother, and thus

the grandmother could seek an abuse prevention order. Turner,

supra at 334.

The reasoning of Turner, however, is not applicable here.

The court in Turner was not applying the usual and ordinary

meaning of the term "related by blood," but rather interpreting

legislative language in light of the Legislature's intent "to

broaden the definition of persons eligible to seek protection

from abuse and domestic violence beyond the 'family' and to also

include other persons having some 'family-like' connection."

Turner, 434 Mass. at 334, quoting Kindregan & Inker, Family Law

and Practice § 57.5 (2d ed. 1996). Noting the "importance of

'giv[ing] broad meaning to the words "related by blood,"' and

considering 'whether the relationship puts the parties into

contact with one another, even though they might not otherwise

seek or wish for such contact,'" the court found the grandmother

eligible to seek protection. Turner, supra, quoting Guidelines

for Judicial Practice: Abuse Prevention Proceedings § 3:02

commentary (Dec. 2000). This was not because that result

tracked the usual and ordinary meaning of "related by blood,"

but because "[t]he relationship [t]here meets the definition of
10

'family,' carrying with it all the risks and problems inherent

in domestic violence." Turner, supra at 336.

Nor is Turner an outlier in this regard. In Silva v.

Carmel, 468 Mass. 18, 23 (2014), when considering the meaning of

persons "residing together in the same household," G. L.

c. 209A, § 1, the Supreme Judicial Court again departed from the

usual and ordinary meaning of that term in favor of implementing

the Legislature's intent. As the court explained, the term

"must be interpreted in the context of the statute's other

definitions of '[f]amily or household members.'" Silva, supra.

Finding again that "the statute's purpose[ is] to prevent

violence in the family setting" and recognizing that the parties

there -- who shared a household in a State-licensed facility for

the developmentally disabled -- were "not in a family-like

relationship with each other," the court declined to extend the

protections of G. L. c. 209A. Silva, 468 Mass. at 23, 24.

By comparison to the Supreme Judicial Court's careful

interpretations in Turner and Silva, the plaintiff's

construction of "related by blood" is breathtaking in its

breadth and yet remarkably disconnected to the asserted policy

goal of covering a broad range of family relationships. Under

the plaintiff's theory, any two persons with a common blood

relative are themselves related by blood. Thus, a person with a

niece is a blood relative of his or her brother-in-law's parents
11

(and grandparents and, for that matter, any genetic relatives).

Indeed, a couple with a biological child would be surprised to

find themselves to be blood relatives.

Nonetheless, the plaintiff's construction is surprisingly

narrow. Had the plaintiff and his partner been a same-sex

couple using an unrelated egg donor, the plaintiff would not be

covered. Were the plaintiff and his partner raising a child

adopted by his partner, the policyholder's daughter, the

plaintiff would not be covered. Had the plaintiff been injured

before the birth of the child, the plaintiff would not be

covered. The plaintiff's construction places value on one

particular flavor of family relationship, to the exclusion of

many others.

Nor is it an answer to suggest (which the plaintiff does

not) that the meaning of "related by blood" might someday be

extended by judicial fiat to persons who lack even a biological

relationship with a common third person. In the G. L. c. 209A

context, every plaintiff promptly sees a judge, who is well

qualified to make a case-by-case determination. Even where the

plaintiff lacks the necessary relationship under G. L. c. 209A,

§ 1, there is value to having the plaintiff come to the court

house and become aware of the resources available to a victim of

abuse. By contrast, individuals need to know whether they are

covered by another individual's policy to determine whether they
12

should obtain their own insurance, and insurance companies need

to know who is covered to determine the proper premium and how

to process claims. In the insurance context, waiting until an

accident and subsequent case-by-case determination of coverage

by a judge is not an adequate solution.

Here, we are not interpreting legislative language in an

attempt to best effectuate the intent of the Legislature.

Instead, we are bound to apply the usual and ordinary meaning of

the words "related by blood." Those words denote a genetic

relationship, and it is undisputed that the plaintiff has none

with either of the policyholders. Because the Superior Court

judge correctly concluded, based on the undisputed facts, that

the plaintiff was not "related by blood" to the policyholders in

the usual and ordinary sense of those words, the judge properly

granted summary judgment to the insurer.

Judgment affirmed.
McDONOUGH, J. (dissenting, with whom Lemire, J., joins).

In Turner v. Lewis, 434 Mass. 331, 334 (2001), the Supreme

Judicial Court concluded that two individuals who were in the

identical material relation to one another as are Derrick

Martins Oliveira and his biological son's maternal grandmother

are "related by blood," as that phrase is read broadly to

advance the protection of domestic abuse victims under G. L.

c. 209A. Contrary to what the majority now holds, the same

essential rules apply to the interpretation of that very same

phrase in the insurance policy, and the statutory phrase from

which it arises ("resident relative"), to advance the protection

of victims of underinsured intoxicated1 (and otherwise negligent)

drivers who seek compensation for injuries through automobile

1 According to Oliveira's sworn answer to an interrogatory,
which is not disputed anywhere in the record before us, he was
the victim of an act of an intoxicated driver. The driver of
the vehicle in which he was a passenger was "highly intoxicated"
and crashed the vehicle into a diesel fuel pump at a fire
station in Charlestown. At least in this case, therefore, a
broad reading of the phrase "related by blood" also would be
consistent with the legislative policy of protecting and
compensating victims of intoxicated drivers; a policy that, most
notably, has prompted the Supreme Judicial Court to take a broad
view of the common law of negligence in "dram shop liability"
cases. See McGuiggan v. New England Tel. & Tel. Co., 398 Mass.
152, 155-162 (1986); Michnik-Zilberman v. Gordon's Liquor, Inc.,
390 Mass. 6, 10-12 (1983); Cimino v. Milford Keg, Inc., 385
Mass. 323, 327 (1982); Adamian v. Three Sons, Inc., 353 Mass.
498, 500-501 (1968).
2

underinsurance coverage. G. L. c. 175, § 113L (5). The same

result, therefore, should follow.

In Massachusetts, automobile insurance is both a statutory

and policy driven creature. Every edition of the standard

Massachusetts automobile insurance policy must comply with all

applicable statutory provisions and be in a form approved by the

Commissioner of Insurance (Commissioner).2 See G. L. c. 175,

§§ 2B, 113A. At the end of the day, however, it is the

underlying statutory scheme that controls, for while the

Commissioner decides what the terms of a standard policy will

be, and his or her interpretation of the relevant statutes is

entitled to deference, that interpretation cannot stand if it is

in conflict with the relevant statutes. See Colby v.

Metropolitan Prop. & Cas. Ins. Co., 420 Mass. 799, 806 (1995).

I thus begin by looking at the policy and statute at issue in

this appeal.

At the time of the accident, Oliveira resided as part of a

single-family unit with his fiancée, their biological son

(child), and the fiancée's biological mother (grandmother) and

stepfather (step-grandfather). There were two motor vehicles in

2 The policy at issue in this case is the 2008 edition.
Thus, the broad definition of "related by blood" enunciated in
Turner, 434 Mass. at 334, preceded by roughly seven years the
Commissioner's promulgation of the policy using the same phrase.
3

the household, both insured under the policy issued by The

Commerce Insurance Company (Commerce) to the grandmother and

step-grandfather. Neither of the vehicles was involved in the

accident, but the policy also included, in pertinent part,

$250,000 per person in underinsured motorist (UIM) coverage.

According to the policy, UIM coverage "will pay damages for

bodily injury to people injured or killed as a result of certain

accidents caused by someone who does not have enough insurance."

The "people" who qualify for UIM coverage are identified in the

policy and include the following:

"1. You, while occupying your auto, while occupying an
auto you do not own, or if injured as a pedestrian.

"2. Any household member, while occupying your auto, while
occupying an auto not owned by you, or if injured as a
pedestrian. If there are two or more policies which
provide coverage at the same limits, we will only pay our
proportionate share. We will not pay damages to or for any
household member who has a Massachusetts auto policy of his
or her own or who is covered by a Massachusetts auto policy
of another household member providing underinsured auto
insurance with higher limits." (Emphasis omitted.)

The terms "you" and "your" are defined in the policy as the

person(s) to whom the policy is issued, as identified on the

coverage selections page. In this case, "you" and "your"

referred to the grandmother and step-grandfather. The term

"household member," meanwhile, is defined as "anyone living in

your household who is related to you by blood, marriage or
4

adoption. This includes wards, step-children or foster

children."

Under G. L. c. 175, § 113L (2), insurers in Massachusetts

are required to make UIM coverage available for purchase at the

option of the policyholder.3 The grandmother and step-

grandfather exercised that option when they purchased the policy

from Commerce. In terms of who is eligible for UIM coverage,

the statute, unlike the policy, does not use the phrase

"household member." Instead, the statute provides, in pertinent

part, that someone in Oliveira's position is eligible for UIM

coverage "from the policy of a resident relative" (emphasis

supplied). G. L. c. 175, § 113L (5).4 The statute does not

define the phrase "resident relative." Nor does it define the

word "relative," which is the portion of "resident relative"

that is relevant here.5

3 UIM coverage was made optional by St. 1988, c. 273, § 46.
See Smart v. Safety Ins. Co., 419 Mass. 144, 148 (1994).

4 General Laws c. 175, § 113L (5), also provides (1) that
the person seeking coverage cannot be a "named insured" on
another policy providing UIM coverage, (2) that the person may
only recover from the policy of a resident relative providing
the highest limits of UIM coverage, and (3) if there are two or
more such policies providing the same limits of UIM coverage, a
pro rata contribution will be made from each. None of these
provisions are in dispute in this case.

5 Commerce originally argued that Oliveira did not reside or
live in the same household as the grandmother, but conceded that
fact for purposes of summary judgment.
5

"When a statute does not define its words we give them

their usual and accepted meanings, as long as these meanings are

consistent with the statutory purpose. . . . We derive the

words' usual and accepted meanings from sources presumably known

to the statute's enactors, such as their use in other legal

contexts and dictionary definitions." (Emphasis supplied.)

Modica v. Sheriff of Suffolk County, 477 Mass. 102, 104 (2017)

(quotation omitted). The word "relative" is commonly understood

to refer to a person related with another by blood or marriage.

See Andrade v. Aetna Life & Cas. Co., 35 Mass. App. Ct. 175, 178

(1993), quoting Black's Law Dictionary 1289 (6th ed. 1990)

("'[R]elative' has been defined as 'a person connected with

another by blood or affinity'"); Merriam-Webster's Collegiate

Dictionary 1050 (11th ed. 2005) (defining "relative" as "a

person connected with another by blood or affinity"). As

previously noted, the policy defines the phrase "household

member" as anyone living in the same household as a policyholder

who is related to the policyholder by, among other things, blood

or marriage. As an initial matter, therefore, the policy

approved by the Commissioner appears consistent with the

statute, at least to the extent relevant to the issue before us.

See Kanamaru v. Holyoke Mut. Ins. Co., 72 Mass. App. Ct. 396,

401 (2008) (concluding that "household member" in insurance

policy is consistent with "resident relative" in G. L. c. 175,
6

§ 113L [5], as "policy provides coverage for a wide range of

relatives who are living in the household"). At the same time,

however, this only leaves the court spinning in a circle, since

the statute, like the policy, does not define "related by

blood."

Which brings us to Turner, the only case in Massachusetts

to consider, under any circumstances, the scope of the phrase

"related by blood."6 There, a grandmother, who had custody of

her biological son's ten year old biological child, sought a

civil abuse prevention order against the child's biological

mother. Turner, 434 Mass. at 331-332. To qualify for

protection under G. L. c. 209A, the grandmother had to be

"related by blood, marriage or household membership" to the

mother. Id. at 332. The mother was neither married to the son

nor a member of the same household as the grandmother. Id. at

331. The issue, therefore, was whether the grandmother and

mother were "related by blood." Id. at 333. The Supreme

The majority suggests that it unearthed one case that
6

addressed the "precise" issue now before the court, Holi v. AIG
Haw. Ins. Co., 113 Haw. 196 (Ct. App. 2007). While the
plaintiff's complaint in Holi, made the same "related by blood"
argument that Oliveira makes here, the plaintiff, for
unspecified reasons, did not raise that argument in his
opposition to the insurance company's motion to dismiss, nor did
he raise it on appeal. See id. at 198, 199, 206. As the issue
was uncontested at both the trial and appellate levels, the Holi
case, therefore, did not exactly "address" the issue.
7

Judicial Court concluded that they were, id. at 334, rejecting

the narrow dictionary definition of the phrase embraced here by

the majority. Again, it is difficult to fathom how the result

could possibly be different here, since the "relationship" at

issue is materially identical.

To reach that seemingly incongruous conclusion, the

majority suggests that different rules apply to the

interpretation of the language of the insurance policy at issue

here than applied when it came to the same language in the

statute at issue in Turner. Specifically, the majority suggests

that here the court is necessarily restricted to construing the

usual and ordinary sense of the phrase "related by blood," while

in Turner, the Supreme Judicial Court construed that same phrase

in light of the Legislature's intent in enacting the domestic

abuse prevention statute -- not in its usual and ordinary sense.

With all due respect, however, the majority's suggestion is

faulty on more than one level.

First, the court in Turner did not fail to consider the

usual and ordinary sense of the phrase "related by blood." The

court detailed the interpretive rules it was applying at the

outset of its analysis: "When statutory language is clear and

unambiguous, the statute must be given its plain meaning. When

the language is less clear, we must interpret the statute

according to the intent of the Legislature ascertained from all
8

its words construed by the ordinary and approved usage of the

language, considered in connection with the cause of its

enactment, the mischief or imperfection to be remedied and the

main object to be accomplished, to the end that the purpose of

its framers may be effectuated" (emphasis supplied).7 Turner,

434 Mass. at 333 (citations and quotations omitted). And, of

course, the court ultimately went on to apply the phrase in a

fairly literal manner, when it concluded that the "paternal

grandmother, through her son, is 'related by blood' to the

child. Likewise, the child and her mother are 'related by

blood.' Thus, the child is 'related by blood' to both parties,

making the mother and grandmother 'related by blood' through

that child." Id. at 334.

Moreover, it is simply wrong to suggest, as the majority

effectively does, that, unlike in Turner, the court is required

to view the usual and ordinary sense of the phrase "related by

blood" in a vacuum, without considering the underlying statute

and its purpose. "We must construe the words of the policy

7 At the very least, the holding in Turner would suggest
that the phrase "related by blood" is ambiguous. See James B.
Nutter & Co. v. Estate of Murphy, 478 Mass. 664, 669 (2018)
("[L]anguage is ambiguous if it is susceptible of more than one
meaning and reasonably intelligent persons would differ as to
which meaning is the proper one" [quotation omitted]). In fact,
the Turner court seems to have conclusively established as much,
by effectively having found the phrase "related by blood" to be
"less clear." See Turner, 434 Mass. at 333.
9

according to the fair meaning of the language used, as applied

to the subject matter, as long as the statutory language or

legislative policy of G. L. c. 175, § 113L, is not contravened.

This is true whether the language of [the] policy is considered

ambiguous or explicit." (Emphasis supplied.) Manning v.

Fireman's Fund Am. Ins. Cos., 397 Mass. 38, 40 (1986) (citations

and quotation omitted). See Massachusetts Insurers Insolvency

Fund v. Premier Ins. Co., 449 Mass. 422, 426-427 (2007) (terms

of standard automobile insurance policy must be construed

"according to the fair meaning of the language used, as applied

to the subject matter" [quotation omitted], and in overall

context of statutory insurance scheme). To that end, I find the

analysis the court undertook in Turner to be both highly

instructive and applicable in this case.

The court in Turner, 434 Mass. at 334, first noted that

"[i]nterpreting the term 'related by blood' to include the

relationship between the grandmother and the mother would be

consistent with the Legislature's purpose in enacting c. 209A."

Specifically, the court noted that the enactment of c. 209A

"reflected [a] significant decision by the legislature . . . to

broaden the definition of persons eligible to seek protection

from abuse and domestic violence." Id. (quotation omitted).

The same is true with respect to the statute that governs UIM

coverage. As the Supreme Judicial Court has acknowledged, G. L.
10

c. 175, § 113L, "was enacted with the broad objective of

ensuring that victims of automobile accidents would be

adequately compensated for their injuries when the accidents are

caused by the negligence of . . . motorists with insufficient or

no liability coverage." Gleed v. Aetna Cas. & Sur. Co., 418

Mass. 503, 508 (1994) (quotation omitted).8 As in Turner,

therefore, the court must "bear in mind the importance of

giv[ing] broad meaning to the words 'related by blood.'"9

Turner, supra (quotation omitted).

The court in Turner, 434 Mass. at 334-335, also took

"judicial notice of the social reality that the concept of

'family' is varied and evolving and that, as a result, different

types of 'family' members will be forced into potentially

unwanted contact with one another. The recent increases in both

single parent and grandparent headed households are two examples

8 While Gleed involved a policy issued at the time that UIM
coverage was compulsory, see note 3, supra, the same broad
objective is still evident now that the coverage is optional.
In fact, the court noted in Gleed, 418 Mass. at 508 n.4, that,
notwithstanding the change in the statute, which had already
occurred, its decision would have been the same.

9 As G. L. c. 175, § 113L(5), is a civil, not a criminal,
statute, the rule of lenity does not apply and the policy's
phrase "related by blood" and statutory word "relative" do not
have to be construed narrowly. See Commonwealth v. Dayton, 477
Mass. 224, 226 (2017) ("[W]here the language of a criminal
statute plausibly can be found ambiguous, the rule of lenity
requires that the defendant receive the benefit of the
ambiguity").
11

of this trend." Further, the court concluded that "[t]hese

trends require that [d]omestic violence statutes [such as G. L.

c. 209A] offer coverage to a wide range of extended family

relationships to fully reflect the reality of American family

life." Id. at 336 (quotation omitted). The Supreme Judicial

Court again took notice of this evolving trend two years later,

when, in a different context, it stated: "The demographic

changes of the past century make it difficult to speak of an

average American family. The composition of families varies

greatly from household to household. Massachusetts has

responded supportively to the changing realities of the American

family and has moved vigorously to strengthen the modern family

in its many variations." Goodridge v. Department of Pub.

Health, 440 Mass. 309, 334 (2003) (quotations and citations

omitted). To these "changing realities" of the modern American

family, the majority turns a blind eye, thereby limiting UIM

coverage to accident victims belonging to conventional families

-- to the exclusion of Oliveira, an unmarried parent and

household member victimized by an underinsured intoxicated

driver. As it happens, one of the areas in which the Supreme

Judicial Court has responded supportively to these changing

realities is in the context of UIM coverage and the scope of the

phrase "household member." In Vaiarella v. Hanover Ins. Co.,

409 Mass. 523, 526-527 (1991), the court recognized, "as have
12

courts in other jurisdictions, that, because modern society

presents an almost infinite variety of possible domestic

situations and living arrangements, the term 'household member'

can have no precise or inflexible meaning."10 The analysis,

therefore, "necessarily must proceed on a case-by-case basis."

Id. at 527.

Disregarding Vaiarella's admonition of flexibility in

defining "household member," as well as Turner's broad

definition of "related by blood," the majority opts instead for

inflexibility and conventionality. In doing so, the majority

spends a fair amount of time conjuring up what it terms

"breathtakingly broad" or "surprisingly narrow" coverage

scenarios that might follow if Oliveira is considered to be

related by blood to his child's maternal grandmother. Engaging

10This court previously noted in Kanamaru, 72 Mass. App.
Ct. at 401-402, that the "language [in Vaiarella] implying
flexible construction of the household member provision . . .
arose in the context of determining which relatives actually
resided in a household. It does not alter the plain meaning of
the definition of 'relative' as outlined in the policy." There
was no dispute in Kanamaru, however, that the plaintiff did not
qualify as a "relative." He was seeking coverage under his
roommate's policy and admitted they were not related by blood,
marriage, or adoption, and that he was not a ward, stepchild, or
foster child of his roommate. See id. at 401. As such, I
consider the court's discussion in Kanamaru of Vaiarella and the
word "relative" to be dicta. I view the language in Vaiarella
implying flexible construction of the phrase "household member"
as being equally applicable to the "resident" and "relative"
aspects of that phrase.
13

in such reductio ad absurdum can prove to be a risky venture.

As suggested in Vaiarella, consideration of other coverage

scenarios is best left for determination on a case-by-case

basis, with more fully formed facts and records. With that

said, I do not find the prospect of Oliveira qualifying for UIM

coverage because he is considered to be related by blood to his

child's maternal grandmother, with whom he resides, to be more

breathtakingly broad than, for example, a person qualifying for

UIM coverage under the policy issued to his or her third cousin,

with whom he or she happens to reside. As the majority would

have it, the phrase "related by blood" is more than flexible

enough to allow for the latter, but not the former.

This is not to say that -- divorced from advancing a

legislative policy -- there is not some appeal to the majority's

holding. Understood in a vacuum, the phrase "related by blood"

does seem to imply that two people must share a common

bloodline, which is only possible if they are both descended

from a common ancestor.11 Indeed, the phrase "blood relative"

has been defined just so. See Merriam-Webster Online

11"Ancestor" is defined as "one from whom a person is
descended and who is usu[ally] more remote in the line of
descent than a grandparent." Merriam-Webster's Collegiate
Dictionary 46 (11th ed. 2005). See Black's Law Dictionary 100
(9th ed. 2009) ("common ancestor" means a "person to whom the
ancestry of two or more persons is traced").
14

Dictionary, https://www.merriam-webster.com/dictionary/blood

20relative [https://perma.cc/5MUR-CY6U] ("blood relative" is

"someone who has the same parents or ancestors as another

person"); Black's Law Dictionary 1402 (9th ed. 2009) ("blood

relative" is "[o]ne who shares an ancestor with another"). Of

course, there is also a certain commonsense appeal to the notion

that the biological father of a child is related, or, to use the

language of the statute at issue here, a "relative" of, the

maternal biological grandmother of the child, even if the father

is not married to the biological mother of the child. Or, to

put it in the same terms as the majority, I think that an

objectively reasonable person in Oliveira's position "would be

surprised to find" himself to not be related to his child's

maternal grandmother, just because he is not married to the

child's mother. The result seems even more surprising given

that Oliveira resided in the same household and formed what can

only be considered a "family," with, among others, the child,

the child's mother, and the child's maternal grandmother. In

any event, this certainly militates in favor of coverage. See

Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 225 (2011)

(when court interprets standard automobile policy, it considers

"what an objectively reasonable insured, reading the relevant

policy language, would expect to be covered" [quotation

omitted]).
15

One final point merits discussion. The majority's holding

extends beyond Oliveira and victims similarly situated. On the

record before the court, it can readily be inferred that the

severe injuries Oliveira suffered in the accident have had a

significant derivative impact, financially or otherwise, on his

family, and, thus, his child, the policyholder's grandson, thus

giving rise to a claim for loss of parental society.12 According

to the policy, UIM coverage is only available for "[a]nyone else

for damages he or she is entitled to recover because of injury

to a person covered under this Part." In other words, UIM

coverage would only be available to the child if, once again,

Oliveira himself qualifies as a "household member." Over thirty

years ago, the Supreme Judicial Court declared, "[o]urs is an

era in which logic and compassion have impelled the law toward

unburdening children from the stigma and the disadvantages

heretofore attendant upon the status of illegitimacy." Powers

v. Wilkinson, 399 Mass. 650, 661 (1987) (overruling traditional

rule of judicial construction and holding that "the word

'issue,' absent clear expressions of a contrary intent, must be

construed to include all biological descendants," including

those born out of wedlock). See Goodridge, 440 Mass. at 334

12There is no mention in the record of whether a claim for
loss of society has yet been pursued on the child's behalf
against the intoxicated driver or against the UIM coverage under
the policy at issue.
16

(Massachusetts has "repudiated the common-law power of the State

to provide varying levels of protection to children based on the

circumstances of birth"). It would seem anomalous, therefore,

that coverage for the child's loss also could be denied merely

because his father and mother did yet not marry -- as recently

as a day or hours before the accident.

In this case, Oliveira and his child are "related by

blood." Likewise, the maternal grandmother, through her

daughter, Oliveira's fiancée, is "related by blood" to the

child. Thus, the child is "related by blood" to both the

maternal grandmother and Oliveira. And, as was the case in

Turner, this makes Oliveira and the grandmother "related by

blood" through that child. I consider this to be the fair

meaning of the language used in the policy, as applied to the

subject matter, consistent with the statutory language and

legislative policy of G. L. c. 175, § 113L. As such, I would

reverse the judgment, allow Oliveira's motion for summary

judgment, deny Commerce's motion for summary judgment, and

declare that Oliveira qualifies as a "household member" under

the policy issued by Commerce to the grandmother and step-

grandfather.