Allstate Insurance v. Smith ex rel. Evans

504 S.E.2d 434, 202 W. Va. 384, 1998 W. Va. LEXIS 51
CourtWest Virginia Supreme Court
DecidedJune 22, 1998
DocketNo. 24499
StatusPublished

This text of 504 S.E.2d 434 (Allstate Insurance v. Smith ex rel. Evans) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allstate Insurance v. Smith ex rel. Evans, 504 S.E.2d 434, 202 W. Va. 384, 1998 W. Va. LEXIS 51 (W. Va. 1998).

Opinion

MAYNARD, Justice:

The appellant, Dorothy Smith as the next friend and guardian of Sandtana Evans, appeals the January 7,1997 order of the Circuit Court of Fayette County, West Virginia. The order granted summary judgment to the appellee, Allstate Insurance Company (Allstate), and dismissed Smith’s complaint from the court’s docket. The appellant argues the circuit court erred in determining the vehicle owner’s automobile insurance did not cover Evans’ injuries as a result of no permission being granted by the vehicle owner to the negligent driver to operate the vehicle. The appellant also argues the automobile insurance policy extends coverage to resident relatives “using” the vehicle and as the policy does not define “using”, the policy is ambiguous and should be construed liberally in favor of coverage. After reviewing the parties’ briefs, the record, and all matters submitted before this Court, we find the lower court committed no error. Accordingly, we- affirm.

Pamela Sangster resided in a household with her husband, her mother, her father, and her sister, Charlotte Ellison. On the morning of April 27,1993, after Sangster left for work, Ellison took the keys to Sangster’s 1991 Nissan, admittedly without Sangster’s permission.1 Later that day, Ellison gave the Nissan keys to her boyfriend, Kevin David Brock, and allowed him to drive Sang-ster’s car. Sandtana Evans was riding along as a passenger and was injured when Brock, a nineteen-year-old driving without a driver’s license, wrecked the Nissan. There is no question that Brock did not have permission to operate the vehicle, indeed, prior to the day of the accident, Sangster did not even know Brock. The vehicle was insured by a personal automobile policy issued by Allstate.

Smith, as next friend and guardian of Evans, initiated this action by filing a personal injury lawsuit against Sangster and Brock in circuit court, alleging the negligence of Sang-ster and Brock caused Evans’ injuries. Allstate intervened in Smith’s tort action. The initial segment of the litigation was settled on December 1, 1995 for $20,000.2 In the [386]*386settlement and release agreement, the parties reserved the right to seek a judicial determination as to whether liability insurance coverage, above the $20,000 settlement, was available under Sangster’s policy for Evans’ injuries.3 Allstate filed a declaratory judgment action, asking the court to rule that Evans was not entitled to additional liability insurance coverage under the automobile policy. Following discovery, Allstate moved for summary judgment which was granted by the lower court. It is from this order that Smith appeals.

On appeal, Smith first argues the lower court erred in determining insurance coverage would not be extended to cover Evans’ injuries based on the fact that the owner of the vehicle, Pamela Sangster, did not give the negligent driver permission to drive the vehicle. Smith argues W.Va.Code § 33-6-31(a) (1995)4 must be read and construed liberally to effect coverage and cites Universal Underwriters Ins. Co. v. Taylor, 185 W.Va. 606, 408 S.E.2d 358 (1991) as a basis for that principle. Smith states that coverage under the policy relates to using the insured vehicle and “using” is not defined in the insurance policy. She reasons that Ellison was an insured person who was using the vehicle and her negligence, in allowing Brock to drive the vehicle, caused Evans’ injuries. Therefore, coverage must be afforded under Sangster’s policy of insurance.

Allstate argues insurance coverage is not available under Sangster’s policy of insurance for Evans’ injuries because the injuries were not caused by an “insured person” within the meaning of the policy language and West Virginia law.5 Allstate maintains that the omnibus clause in the insurance policy must comport with W.Va.Code § 17D-A-12(b)(2) and W.Va.Code § 33-6-31(a), which it does. Allstate reasons that West Virginia is an initial permission jurisdiction. Since Ellison did not have permission to operate Sang-ster’s vehicle, Ellison could not subsequently grant permission to a third person to operate the vehicle. Furthermore, Brock was an unlicensed driver. Therefore, there is no liability coverage for Evans’ injuries.

We begin by recognizing that “although contracts of insurance are to be liberally construed in favor of the insured, if [the insurance contracts] are plain and clear and not in violation of law or inconsistent with public policy, the courts are bound to adhere to their terms.” 10B M.J. Insurance § 125 [387]*387(1995). The declaratory judgment action in this case involves the omnibus clause in Sangster’s personal automobile policy of insurance that was issued to her by Allstate. The omnibus clause of Sangster’s policy defines “insured persons” as follows:

Insured Persons
1. While using your insured auto:
a) you,
b) any resident relative, and
c) any other licensed driver using it with your permission.

Smith argues this language is ambiguous in that it could be read to mean a resident relative who is covered under the policy can grant permission to a third person to operate the vehicle and because the resident relative is covered, the third person is covered. We do not agree.

In Universal Underwriters Ins. Co. v. Taylor, 185 W.Va. 606, 408 S.E.2d 358 (1991), this Court determined that West Virginia is an initial permission jurisdiction. The Taylor Court commented by stating, “[W]e hereby determine that the state motor vehicle omnibus clause requires an insurer to provide coverage when permission has been granted by the insured owner of the vehicle or its authorized agent to a driver who then causes injury or property damage during the permissive use.” Id. at 612, 408 S.E.2d at 364. (Emphasis added). The Court went on to explain that the exception to providing coverage is activated when the driver does not have permission to use the vehicle. Later, in Metropolitan Property and Liability Ins. Co. v. Acord, 195 W.Va. 444, 449, 465 S.E.2d 901, 906 (1995), in discussing whether liability coverage would be extended when an insured other than the named insured gave permission to another to drive the covered vehicle, this Court stated, “W.Va.Code § 33-6-31(a) contemplates that the named insured must give express or implied permission to the person utilizing his vehicle.” (Emphasis added).

The facts in Acord are similar to the facts in the case sub judice. Orvil Acord, Jr., a thirty-six year old resident relative of his parents’ home, did not have a key to his parents’ vehicle. Nor did he have permission to use his parents’ vehicle. But, while Mr. Acord was sleeping, his son, Orvil Acord, Jr., took the keys from his father’s pants pocket and stole the car. Acord then allowed Scott Stephen Allen to drive the vehicle. The Acords had not given Allen permission to operate their vehicle. While driving, Allen wrecked the vehicle, killing Acord. The Acords’ insurer, Metropolitan Property and Liability Insurance Company (Metropolitan), obtained this evidence during the investigation of the accident. Based on the evidence, Metropolitan denied liability coverage for Acord’s death.

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Related

Metropolitan Property & Liability Insurance v. Acord
465 S.E.2d 901 (West Virginia Supreme Court, 1995)
Johnson v. State Farm Mutual Automobile Insurance
438 S.E.2d 869 (West Virginia Supreme Court, 1993)
State Farm Mutual Automobile Insurance v. Rice
391 S.E.2d 71 (Supreme Court of Virginia, 1990)
Universal Underwriters Insurance v. Taylor
408 S.E.2d 359 (West Virginia Supreme Court, 1991)
Riffe Ex Rel. Riffe v. Magushi
859 F. Supp. 220 (S.D. West Virginia, 1994)

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Bluebook (online)
504 S.E.2d 434, 202 W. Va. 384, 1998 W. Va. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allstate-insurance-v-smith-ex-rel-evans-wva-1998.