Adkins v. Meador

• Decision Date: 15 July 1997
• Docket Number: No. 23371,23371
• Citation: 201 W.Va. 148,494 S.E.2d 915
• Court: West Virginia Supreme Court
• Parties: Gary ADKINS and Shirley Adkins, Plaintiffs Below, Appellees, v. Anna Lee MEADOR, Defendant Below. Liberty Mutual Fire Insurance Company, Appellant.

Page 915

494 S.E.2d 915

201 W.Va. 148

Gary ADKINS and Shirley Adkins, Plaintiffs Below, Appellees, v. Anna Lee MEADOR, Defendant Below Liberty Mutual Fire Insurance Company, Appellant.

No. 23371.

Supreme Court of Appeals of West Virginia.

Submitted March 25, 1997.

Decided July 15, 1997.

Syllabus by the Court

1. "Although our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed." Syllabus Point 3, Fayette County National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997).

2. "Insurers may incorporate such terms, conditions and exclusions in an automobile insurance policy as may be consistent with the premium charged, so long as any such exclusions do not conflict with the spirit and intent of the uninsured and underinsured motorists statutes." Syllabus Point 3, Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989).

3. W.Va.Code, 33-6-31(c)[1995] requires insurance companies to provide uninsured motorist coverage, and make available underinsured motorist coverage, for any person, except a bailee for hire, who uses the insured vehicle with the express or implied consent of the named insured. The term "uses" in W.Va.Code, 33-6-31(c) [1995] is less restrictive than the term "occupying." "Use" of an insured vehicle implies employing the vehicle for some purpose or object of the user.

4. Under W.Va.Code, 33-6-31(c) [1995], insurers must provide uninsured motorist coverage, and make available underinsured motorist coverage, for injuries causally connected to the use of the vehicle, and foreseeably identifiable with the normal use of the vehicle.

5. Under W.Va.Code, 33-6-31(c) [1995], whether or not an injury arose from the "use" of a motor vehicle depends upon the factual context of each case.

Cynthia Morrone Salmons, J. Michael Ranson, Ranson Law Offices, Charleston, for Appellees, Gary Adkins and Shirley Adkins.

R. Carter Elkins, Laura L. Gray, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, for Appellant, Liberty Mutual Fire Insurance Company.

STARCHER, Justice.

This declaratory judgment action arises from the interpretation of an underinsured motorist policy purchased by an employer. A construction worker was seriously injured when he was struck by a vehicle during the course of his job repairing an interstate highway. The construction worker filed a personal injury action against the vehicle's driver and notified his employer's underinsured motorist insurer of the action. The insurer filed a counterclaim and declaratory judgment action to declare that the worker could not recover underinsurance benefits from his employer's underinsurance policy because the worker was not "occupying" the insured vehicle at the time of the accident.

Both parties filed motions for summary judgment on the insurance coverage issue. The circuit court concluded that the worker was an insured under his employer's underinsured motorist insurance policy and granted him summary judgment.

On appeal by the insurer, we find that the "occupying" restriction contained in the underinsurance policy fails to provide the coverage required by West Virginia law, and is therefore void. Under West Virginia law, a worker is covered by an employer's underinsured motorist insurance policy if the worker is "using" the employer's vehicle at the time of injury. The record in this case suggests the worker was "using" his employer's insured vehicle at the time of the accident. However, because the facts are unclear, we are compelled to reverse the circuit court's summary judgment order because it is insufficient and remand the case for reconsideration.

I. Factual Background and Proceedings

Appellee Gary Adkins was employed by Champagne-Webber, Inc., a company that engaged in road construction on Interstate 79. On July 30, 1993, Mr. Adkins was positioning barrels along the interstate to direct traffic flow. The appellee had traveled to the site driving a pick-up truck owned by Champagne-Webber; it is unclear where the truck was parked, how long the appellee was outside his vehicle, and what other uses the appellee had for the truck. What is clear is that a vehicle driven by Anna Lee Meador ¹ struck Mr. Adkins, causing Mr. Adkins the loss of a leg and the loss of sexual function.

Because Mr. Adkins was injured in the course of and as a result of his employment, he received workers' compensation medical benefits in excess of $130,000. ² Additionally, Mr. Adkins settled with Ms. Meador's insurer and received $100,000, the limits of her automobile liability insurance coverage. ³ Mr. Adkins sought coverage from Champagne-Webber's commercial automobile insurance, particularly its underinsured motorist coverage through appellant Liberty Mutual Insurance Company. The employer's pickup truck was a covered vehicle under the policy.

On September 9, 1994, the appellees filed a personal injury action against Ms. Meador and served Liberty Mutual with the complaint. ^{4 4} Liberty Mutual answered the complaint and filed a counterclaim seeking a declaration that Mr. Adkins was not an insured under the underinsured motorist policy issued to Champagne-Webber, Inc. After conducting discovery, the parties filed cross-motions for summary judgment.

On December 26, 1995, the circuit court entered a brief order granting the appellees' motion for summary judgment and denying Liberty Mutual's motion, thereby holding that Mr. Adkins was an insured under his employer's underinsured motorist insurance policy. ⁵ Liberty Mutual now appeals the circuit court's order.

II. Standard of Review

The focus of this appeal is the appropriateness of summary judgment under W.Va.R.Civ.P. Rule 56 [1978]. We review a circuit court's entry of summary judgment de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). The traditional standard for granting summary judgment was established in Syllabus Point 3 of Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963) where we held:

A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.

In accord, Syllabus Point 1, Fayette Co. National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997); Syllabus Point 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995); Syllabus Point 2, Painter, supra; Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

A circuit court's entry of a declaratory judgment is also reviewed de novo, since the principal purpose of a declaratory judgment action is to resolve legal questions. Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995). When a declaratory judgment proceeding involves the determination of an issue of fact, that issue may be tried and determined by a judge or jury in the same manner as issues of fact are tried and determined in other civil actions. W.Va.Code, 55-13-9 [1941]. Any determinations of fact made by the circuit court or jury in reaching its ultimate resolution are reviewed pursuant to a clearly erroneous standard. Cox, 195 W.Va. at 612, 466 S.E.2d at 463.

We reiterated in Fayette Co. National Bank, supra, the requirement that "an order granting summary judgment cannot merely recite and rest exclusively upon a conclusion that, 'No genuine issue of material fact is in dispute and therefore summary judgment is granted.' " 199 W.Va. at 353, 484 S.E.2d at 236. In order to properly evaluate a circuit court's order granting summary judgment, this Court must be able to "determine whether the stated reasons for the granting of summary judgment by the lower court are supported by the record." Id. For us to accomplish this, it is mandatory that a circuit court identify the factual and legal support for its ultimate conclusions. We therefore held that:

Although our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.

Syllabus Point 3, Fayette County National Bank. With these standards in mind, we review the circuit court's order.

III. Discussion

Mr. Adkins contends that he is an insured under his employer's Liberty Mutual underinsured motorist endorsement, and therefore, he must be afforded underinsured motorist coverage which is provided for in W.Va.Code, 33-6-31(b) [1995]. ⁶ Liberty Mutual's underinsured motorist coverage endorsement states that Liberty Mutual "will pay all sums the insured is legally entitled to recover as compensatory damages from the owner or driver of an ... underinsured motor vehicle. The damages must result from bodily injury sustained by the insured or property damage caused by the accident."

W.Va.Code, 33-6-31(c) [1995] ⁷ defines the individuals who must be covered by an underinsured motorist policy:

[T]he term "named insured" shall mean the person named as such in the declarations of the policy or contract and shall also include such person's spouse if a resident of the same household and the term "insured" shall mean the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person, except a bailee for hire, who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies or the personal representative of any of the above; ... [emphasis added.]

Liberty Mutual contends that Mr....