Encompass Independent Insurance Co. v. Dombrosky

234 F. Supp. 3d 785, 2017 WL 570963, 2017 U.S. Dist. LEXIS 18936
CourtDistrict Court, W.D. Virginia
DecidedFebruary 10, 2017
DocketCivil Action No. 7:16CV00272
StatusPublished

This text of 234 F. Supp. 3d 785 (Encompass Independent Insurance Co. v. Dombrosky) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Encompass Independent Insurance Co. v. Dombrosky, 234 F. Supp. 3d 785, 2017 WL 570963, 2017 U.S. Dist. LEXIS 18936 (W.D. Va. 2017).

Opinion

MEMORANDUM OPINION

Glen E. Conrad, Chief United States District Judge

In this insurance coverage dispute, Encompass Independent Insurance Company (“Encompass”) seeks a declaratory judgment that it has no obligation to defend or indemnify Tanya Dombrosky (“Dombro-sky”) in connection with a personal injury action that Matthew Green (“Green”) filed against Dombrosky in Virginia state court. The- case is presently before the court on cross-motions for partial summary judgment filed by Encompass, Dombrosky, and Green. For the' reasons set forth below, each motion will be granted in part and denied in part.

Background

I. Statement of Facts

The facts in this case are not heavily disputed. In 2007, Dombrosky and her mother, Jo Ann Dunn (“Jo Ann”), moved in with Dombrosky’s grandparents, Betty Dunn (“Betty”) and Joe Dunn (“Joe”). At that .time, Joe, who had a career in insurance, emailed a representative from Encompass inquiring about their existing policies. Jo Ann Dep. 45:15-46:23. Joe received an email stating, “According to Policy definitions the daughter/granddaughter are considered family members/resident relatives and therefore coverage will extend to them as long as they are residing in the household at the time of a loss.” Email from RMC-East to Peggy Pettrey,. Wed. Oct. 31, 2007, Docket No. 17-5. Joe gave the email chain to Jo Ann, told Jo Ann that she and Dombro-sky were covered, and told Jo Ann that she should keep the email exchange for her records. See Jo Ann Dep. 45:15-46:23. Joe passed away prior to the events giving rise to the instant dispute.

On June 5, 2015, Dombrosky and Betty visited First Team Hyundai in 'Roanoke, Virginia, where Betty purchased a 2013 Hyundai Veloster (the “Veloster”) for Dombrosky. Betty paid the full purchase price, which included the vehicle’s first oil change and a limited warranty. See Har-stock Dep., Ex. 1, p. 0000069, Docket 21-4. Jo Ann picked up the Veloster from First Team Hyundai three days later, on June 8, 2015.

Over the next nine days,’Betty drove the vehicle two, possibly three times. Each time she used the Veloster, she drove it to the grocery store, which was about four or five miles away. See Betty Dunn Dep. 9:3-10:2, Docket No. 21-6. Betty also paid to pút gas in the car once or twice. See id. 8:9—9:2. Jo Ann put gas in the vehicle once. See Jo Ann Dep. 26:19-20, Docket No. 21-3. At some point, Jo Ann drove the Veloster to West Virginia. Betty paid for the gas used on that trip. See id 58:6-19. When not in use, the vehicle was kept in the garage, and the keys were kept in the car. See id. 21:21-22:20.

No one felt that Betty needed permission to drive to Veloster, but Betty did inform Dombrosky of any planned use. See Jo Ann Dunn Dep; 54:2-6; Betty Dunn Dep. 29:6-8; Dombrosky Dep. 31:14-19. Despite Betty purchasing the Veloster for Dombrosky’s use, and Betty considering the Veloster to be Dombrosky’s vehicle, Dombrosky needed permission to drive the Veloster; See Betty Dunn Dep. 16:4-6; Jo [789]*789Ann Dep. 54:13-15. Dombrosky drove the vehicle at least three times prior to the accident. See Dombrosky Dep. 19:8-22:24. In addition to the Veloster, a Toyota RAV4 titled in Jo Ann’s name and a Toyota Avalon titled in Betty’s name were kept in the garage. See Jo Ann Dunn Dep. 13:16— 22. The family considered the RAV4 to be Jo Ann’s vehicle and the Avalon to be Betty’s vehicle. See Betty Dunn Dep. 15:22-16:3.

On June 17, 2015, nine days after her mother picked up the Veloster from First Team Hyundai, Dombrosky was involved in a motor vehicle accident while driving the Veloster. The accident left Green permanently paralyzed from the chest down. He subsequently commenced a personal injury suit in Virginia state court, claiming $7.5 million in damages. At the time of the accident, the Veloster was titled in Jo Ann’s name and insured by an USAA auto policy. When USAA paid for the totaled Veloster, Jo Ann specified that the check be paid to Betty. Id. 64:1-2.

11. The Insurance Policies

At all times relevant, Betty maintained a $2.5 million personal umbrella policy (the “Umbrella Policy”) and a $250,000 auto policy (the “Auto Policy”), which included an “Extended Non-Owned Coverage” endorsement (the “Endorsement”). The Umbrella Policy obligates Encompass to “pay damages for which a covered person becomes legally liable due to an occurrence resulting in personal injury, bodily injury, or property damage, up to the limit of liability shown in the Covei’age Summary....” Encompass Umbrella Policy Insuring Agreement 3, Docket No. 1-1 (emphasis omitted). The Umbrella Policy enumerated certain losses that the policy does not cover. In pertinent part, the Umbrella Policy does not cover:

12. Bodily injury or property damage arising out of the ownership; maintenance; use; occupancy; renting; loaning; entrusting; loading or unloading of any motor vehicle ..., other than: ...
e. A motor vehicle you maintain or regularly use which is:
(1) Owned by a family member and not shown in the Coverage Summary; or
(2) Furnished or available for the regular use of any family member.

Encompass Umbrella Policy Insuring Agreement 6 (emphasis denotes defined terms). There is no debate that Dombro-sky is a “family member” or that the Ve-loster is a “motor vehicle” as defined by the policy.

The Auto Policy states, in relevant part:

A. We will pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident. We will settle or defend, as we consider appropriate, any claim or suit asking for damages which are payable under the terms of this policy ....
B. We do not provide Liability Coverage for the ownership, maintenance or use of: ...
2. Any vehicle, other than your covered auto, which is:
a. Owned by you; or
b. Furnished or available for your regular use.
3. Any vehicle, other than your covered auto, which is
a. Owned by any family member: or
b. Furnished or available for the regular use of a family member.
However, this Exclusion (B.3) does not apply to you while you are maintaining or occupying any vehicle which is:
a. Owned by a family member: or
[790]*790b. Furnished or available for the regular use of a family member.

Personal Auto Policy 2—4, Docket No. 1-1 (emphasis denotes defined terms). “You” and ‘Your” means the “named insured.” Id. at 1. Betty is listed as the named insured in the Coverage Summary. See Coverage Summary 1, Docket No. 1-2.

The Endorsement to the Auto Policy provides, “The Extended Non-Owned Coverage provided by this endorsement does not afford coverage ... for any accident involving ... a vehicle owned by a member of the same household.” Extended Non-Owned Coverage Endorsement, Docket No. 1-2. The Endorsement also provides, “We will provide Liability Coverage for any vehicle, other than your covered auto, which is furnished or available for the regular use of the named individual.” Id. Finally, the endorsement states that the Auto Policy's “B.2.b.

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Bluebook (online)
234 F. Supp. 3d 785, 2017 WL 570963, 2017 U.S. Dist. LEXIS 18936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/encompass-independent-insurance-co-v-dombrosky-vawd-2017.