Erie Ins. Prop. & Cas. Co. v. Cooper, CIVIL ACTION NO. 2:20-cv-00321

• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Writing for the Court: IRENE C. BERGER, UNITED STATES DISTRICT JUDGE
• Citation: 516 F.Supp.3d 567
• Parties: ERIE INSURANCE PROPERTY & CASUALTY COMPANY, Plaintiff, v. James Skylar COOPER, Defendant.
• Docket Number: CIVIL ACTION NO. 2:20-cv-00321
• Decision Date: 28 January 2021

516 F.Supp.3d 567

ERIE INSURANCE PROPERTY & CASUALTY COMPANY, Plaintiff,
v.
James Skylar COOPER, Defendant.

CIVIL ACTION NO. 2:20-cv-00321

United States District Court, S.D. West Virginia, Charleston Division.

Signed January 28, 2021

516 F.Supp.3d 570

J. Jarrod Jordan, James D. Lamp, Matthew J. Perry, Lamp Bartram Levy Trautwein & Perry, Huntington, WV, for Plaintiff.

Jennifer D. Roush, Robert A. Campbell, R. Chad Duffield, Farmer Cline & Campbell, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

IRENE C. BERGER, UNITED STATES DISTRICT JUDGE

The Court has reviewed Erie Insurance Property and Casualty Company's Motion for Summary Judgment (Document 14), the Memorandum of Law in Support of Erie Insurance Property and Casualty Company's Motion for Summary Judgment (Document 15), James Skylar Cooper's Response to Erie Insurance Property and Casualty Company's Motion for Summary Judgment (Document 18), and Erie Insurance Property and Casualty Company's Reply in Support of Its Motion for Summary Judgment (Document 20), as well as all attached exhibits.

In addition, the Court has reviewed James Skylar Cooper's Motion for Summary Judgment on Counterclaim for Declaratory Relief (Document 16), the Memorandum of Law in Support of James Skylar Cooper's Motion for Summary Judgment on Counterclaim for Declaratory Relief (Document 17), Erie Insurance Property and Casualty Company's Response in Opposition to James Skylar Cooper's Motion for Summary Judgment On Counterclaim for Declaratory Relief (Document 19), and the Reply Memorandum to Erie Property and Casualty Company's Response in Opposition to James Skylar Cooper's Motion for Summary Judgment on Counterclaim for Declaratory Relief (Document 21), as well as all attached exhibits. For the reasons stated

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herein, the Court finds that Erie's motion should be denied, and Mr. Cooper's motion should be granted.

FACTS¹

The Defendant and Counterclaimant, James Skylar Cooper, worked for Pison Management, performing maintenance at rental properties. He and a crew of other employees typically met at Pison's office in Cross Lanes, loaded the necessary yard maintenance equipment into a Pison-owned truck and trailer, and travelled to the job sites, usually using both a Pison-owned truck and a vehicle owned by one of the employees. Pison did not reimburse for mileage for the personal vehicle but did pay employees for travel time to the job sites.

On August 9, 2019, Mr. Cooper helped load the equipment onto the utility trailer, towed by the 2004 Chevrolet Silverado owned by Pison. A supervisor, Demetrius Elder, drove that truck. Mr. Cooper rode in a separate vehicle owned and operated by a co-worker, Mr. Huffman. Mr. Huffman followed immediately behind Mr. Elder on the route to the job site so that Mr. Elder could lead them to the correct location, which Mr. Huffman and Mr. Cooper had not previously visited. Another Pison-owned vehicle travelled at the front of the caravan. Mr. Cooper's duties would have included assisting in unloading the equipment at the job site, mowing the grass and performing other tasks at the site, re-loading the equipment to return to the Pison office, and unloading the equipment. While en route, at around 7:46 a.m., a vehicle crossed the center line and struck the trailer being towed by the Silverado, then hit Mr. Huffman's vehicle head-on. Mr. Cooper suffered serious injuries that resulted in substantial medical bills. He has not been able to return to work since the accident. His damages exceeded the negligent driver's liability coverage, as well as certain coverage available through family policies.

Pison purchased insurance from Plaintiff and Counter-Defendant Erie Insurance Property & Casualty Company. It opted for the maximum available coverage offered on the form supplied by Erie. The policy provided coverage for the vehicles owned by Pison, including the 2004 Chevy Silverado. That coverage included both uninsured and underinsured motorist coverage. The policy also provided coverage for "non-owned autos" operated by employees, limited to liability protection. The Uninsured/Underinsured Motorists Coverage Endorsement provides coverage for bodily injury and property damage resulting from a car accident involving an under-or un-insured motor vehicle. The coverage applies to "you or others we protect," including "anyone else, while occupying any owned auto we insure." (Policy, Un- and Underinsured Endorsement at 1-2) (att'd as Pl.’s Ex. 3, at 21-22.) An endorsement for West Virginia defines "anyone we protect" to include "anyone else while using an auto we insure with your permission," with certain exceptions. (Pl.’s Ex. 3 at 9, 24.)

Both parties have submitted motions for summary judgment, which are fully briefed and ripe for ruling.

STANDARD OF REVIEW

The well-established standard in consideration of a motion for summary judgment is that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."

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Fed. R. Civ. P. 56(a)–(c) ; see also Hunt v. Cromartie , 526 U.S. 541, 549, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Hoschar v. Appalachian Power Co. , 739 F.3d 163, 169 (4th Cir. 2014). A "material fact" is a fact that could affect the outcome of the case. Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ; News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth. , 597 F.3d 570, 576 (4th Cir. 2010). A "genuine issue" concerning a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. FDIC v. Cashion , 720 F.3d 169, 180 (4th Cir. 2013) ; News & Observer , 597 F.3d at 576.

The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. , 477 U.S. at 322–23, 106 S.Ct. 2548. When determining whether summary judgment is appropriate, a court must view all of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light most favorable to the nonmoving party. Hoschar , 739 F.3d at 169. However, the nonmoving party must offer some "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson , 477 U.S. at 256, 106 S.Ct. 2505. "At the summary judgment stage, the non-moving party must come forward with more than ‘mere speculation or the building of one inference upon another’ to resist dismissal of the action." Perry v. Kappos , No.11-1476, 2012 WL 2130908, at *3 (4th Cir. June 13, 2012) (unpublished decision) (quoting Beale v. Hardy , 769 F.2d 213, 214 (4th Cir. 1985) ).

In considering a motion for summary judgment, the court will not "weigh the evidence and determine the truth of the matter," Anderson , 477 U.S. at 249, 106 S.Ct. 2505, nor will it make determinations of credibility. N. Am. Precast, Inc. v. Gen. Cas. Co. of Wis. , 2008 WL 906334, *3 (S.D. W. Va. Mar. 31, 2008) (Copenhaver, J.) (citing Sosebee v. Murphy , 797 F.2d 179, 182 (4th Cir. 1986) ). If disputes over a material fact exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," summary judgment is inappropriate. Anderson , 477 U.S. at 250, 106 S.Ct. 2505. If, however, the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case," then summary judgment should be granted because "a complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial." Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548.

When presented with motions for summary judgment from both parties, courts apply the same standard of review. Tastee Treats, Inc. v. U.S. Fid. & Guar. Co. , 2008 WL 2836701 (S.D. W. Va. July 21, 2008) (Johnston, J.) aff'd , 474 F. App'x 101 (4th Cir. 2012). Courts "must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law," resolving factual disputes and drawing inferences for the nonmoving party as to each motion. Rossignol v. Voorhaar , 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation marks and citations omitted); see also Monumental Paving & Excavating, Inc. v. Pennsylvania Manufacturers’ Ass'n Ins. Co. , 176 F.3d 794, 797 (4th Cir. 1999).

DISCUSSION

Mr. Cooper argues that he is entitled to summary judgment on two separate theories. He contends that underinsured motorist

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coverage is provided because he was "using" the 2004 Chevy Silverado owned by Pison at the time of the accident. He argues that the Policy provides underinsured motorist coverage to "anyone we protect," including anyone using a vehicle it insured—and he was "using" both the 2004 Chevy Silverado owned by Pison and the non-owned Huffman auto, which...