Allstate Ins. Co. v. Mocaby

• Citation: 133 Idaho 593,990 P.2d 1204
• Decision Date: 30 August 1999
• Docket Number: No. 23849, No. 24087.
• Parties: ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Plaintiff-Respondent-Cross Respondent, v. Charmaine MOCABY, individually and as natural guardian of Marjorie Upton, a minor, Defendant-Appellant-Cross Respondent, and Lyman Jacobson and Isabel Jacobson, husband and wife, Cory Crystal, an individual, Defendants-Respondents-Cross Appellants. Charmaine Mocaby, individually and as natural guardian of Marjorie Upton, a minor, Plaintiff-Appellant, v. Lyman Jacobson and Isabel Jacobson, husband and wife, Defendants-Respondents, and Cory Crystal, an individual, Tammy Walton, an individual and John Does I-V, Defendants.
• Court: United States State Supreme Court of Idaho

990 P.2d 1204

133 Idaho 593

ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Plaintiff-Respondent-Cross Respondent, v. Charmaine MOCABY, individually and as natural guardian of Marjorie Upton, a minor, Defendant-Appellant-Cross Respondent, and Lyman Jacobson and Isabel Jacobson, husband and wife, Cory Crystal, an individual, Defendants-Respondents-Cross Appellants.

Charmaine Mocaby, individually and as natural guardian of Marjorie Upton, a minor, Plaintiff-Appellant, v. Lyman Jacobson and Isabel Jacobson, husband and wife, Defendants-Respondents, and Cory Crystal, an individual, Tammy Walton, an individual and John Does I-V, Defendants.

Nos. 23849, 24087.

Supreme Court of Idaho, Pocatello, May 1999 Term.

August 30, 1999.

Bob E. Pangburn, Caldwell, and D. Bernard Zaleha, Boise, for appellant. D. Bernard Zaleha argued.

D. Kirk Bybee, Pocatello, and Thomsen & Stephens, P.A., Idaho Falls, for respondents Lyman and Isabel Jacobson. D. Kirk Bybee and James D. Holman argued.

Hamlin & Sasser, Boise, for respondent Allstate Insurance Company. Geoffrey M. Wardle argued.

SILAK, Justice.

This is a consolidated appeal from orders granting summary judgment and attorney fees in a declaratory judgment action filed by an insurer and a tort action against the insureds, whose grandson shot the plaintiff with a handgun.

I. FACTS AND PROCEDURAL BACKGROUND

Cory Crystal (Crystal), a minor and the maternal grandson of Lyman and Isabel Jacobson (Jacobsons), arrived in Pocatello to live with the Jacobsons on September 13, 1994. Prior to his arrival, Crystal was in the custody of the Washington Department of Health and Welfare. The Jacobsons were contacted by the Department and agreed to have Crystal live with them.

After arriving at the Jacobsons' home, Crystal spent two days with his grandparents and then left the house, staying with friends in Pocatello. Crystal would return to the Jacobsons' home intermittently for a shower, a change of clothing, and a meal. However, he would again leave to be with his friends. On October 25, 1994, approximately one month after arriving in Pocatello, Crystal shot Marjorie Upton (Upton) in the head at her home with a pistol he had stolen from the home of Tammy Walton. Both Crystal and Upton's guardian, Charmaine Mocaby (Mocaby), maintain that the shooting was an accident. At the time of the shooting incident, the Jacobsons had in effect a Deluxe Homeowners Insurance Policy issued by Allstate Insurance Co. (Allstate), which provided coverage for residents of the Jacobsons' household.

On July 31, 1996, Allstate filed a declaratory judgment action against the Jacobsons, Crystal, Upton, and Mocaby seeking a declaration that Allstate had no duty to defend or indemnify the Jacobsons or Crystal in lawsuits relating to the shooting incident. On October 24, 1996, Mocaby sued the Jacobsons, Crystal, and Tammy Walton on grounds of negligence and negligent supervision.

On January 23, 1997, Allstate filed a motion for summary judgment in the declaratory judgment action, asserting that Crystal was not a "resident" of the Jacobsons' household, and that even if he were a resident, the intentional/criminal act exclusion clause in the policy precluded coverage for Crystal and the Jacobsons. On February 10, 1997, the Jacobsons filed a motion to dismiss or in the alternative, motion for summary judgment, asserting that Allstate had a duty to defend and indemnify the Jacobsons in Mocaby's negligent supervision action against them. The district court granted Allstate's motion for summary judgment, ruling that Crystal was not a resident of the Jacobsons' household under the insurance policy and that even if Crystal were a resident, his actions would fall within the criminal act exclusion of the policy. The Jacobsons filed a motion to alter or amend and for reconsideration, and the district court issued an amended decision and order granting Allstate's motion for summary judgment in part, holding that Crystal was not a resident under the insurance policy but that Allstate had a duty to defend and indemnify the Jacobsons in Mocaby's negligent supervision action. Mocaby appealed.

On April 30, 1997, the Jacobsons filed a motion for summary judgment in Mocaby's negligent supervision action, asserting that they were neither the appointed nor de facto guardians of Crystal at the time of the shooting. The Jacobsons further asserted that even if they were found to be Crystal's guardians, they could not be held responsible for his actions. The district court granted the Jacobsons' motion, determining that while the Jacobsons voluntarily assumed responsibility for Crystal, there was no genuine issue of material fact regarding whether the Jacobsons knew that Crystal had a proclivity or propensity to shoot someone. The district court further concluded that Mocaby's suit was brought frivolously, unreasonably, and without foundation and accordingly awarded costs and attorney fees in favor of the Jacobsons pursuant to I.C. § 12-121 and I.R.C.P. 54(e)(1) in the amount of $2,188.50. Mocaby also appealed from this order.

In July, 1997, the Jacobsons filed a motion for an award of fees and costs incurred in defending Allstate's declaratory judgment action. Allstate likewise filed a motion for an award of attorney fees and costs against the Jacobsons and against Mocaby. The district court denied the Jacobsons' motion but granted Allstate's motion against Mocaby pursuant to Section 12-121 of the Idaho Code and I.R.C.P. 54(e)(1). The district court ordered Mocaby to pay $11,662.05 in attorney fees and costs. The Jacobsons and Mocaby appealed from this order. The appeals from the declaratory judgment action and the negligent supervision claim were consolidated.

II. ISSUES ON APPEAL

The appellant presents the following issues on appeal:

A. Whether the district court erred in determining that Crystal was not a resident of the Jacobsons' household and thus not an insured person under the Jacobsons' homeowner's insurance policy.

B. Whether the district court erred in applying the insurance policy's criminal act exclusion in this case.

C. Whether the district court erred in determining that the Jacobsons were not negligent in their supervision of Crystal.

D. Whether the district court erred in awarding $11,009.00 in attorney fees to Allstate.

On cross-appeal the Jacobsons and Crystal present the following issue:

E. Whether the district court erred in determining that the Jacobsons were not entitled to an award of attorney fees against Allstate.

III. STANDARD OF REVIEW

In an appeal from an order granting summary judgment, this Court applies the same standard of review as used by the district court when originally ruling on the motion. See Mitchell v. Bingham, 130 Idaho 420, 422, 942 P.2d 544, 546 (1997)

. Summary judgment is appropriate where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See id. This determination is to be based on the "pleadings, depositions, and admissions on file, together with the affidavits, if any." Id. (quoting I.R.C.P. 56(c)). However, the Court should liberally construe the facts in favor of the party opposing the motion, together with all reasonable inferences from the evidence. See id.

In order to create a genuine issue of material fact, the party opposing the motion must present more than a conclusory assertion that an issue of fact exists. See Van Velson Corp. v. Westwood Mall Assoc., 126 Idaho 401, 406, 884 P.2d 414, 419 (1994)

. Rather, "the plaintiff must respond to the summary judgment motion with specific facts showing there is a genuine issue for trial." Tuttle v. Sudenga Indus., Inc., 125 Idaho 145, 150, 868 P.2d 473, 478 (1994). However, "if a party moving for summary judgment raises issues in his motion but then fails to provide any evidence showing a lack of any genuine issue of material fact with respect to those issues, the nonmoving party has no burden to respond with supporting evidence." Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 531, 887 P.2d 1034, 1038 (1994) (citing Thompson v. Pike, 122 Idaho 690, 698, 838 P.2d 293, 301 (1992)). Further, summary judgment is appropriate where the non-moving party bearing the burden of proof fails to make a showing sufficient to establish the existence of an element essential to that party's case. See Harris v. Dep't of Health and Welfare, 123 Idaho 295, 298, 847 P.2d 1156, 1159 (1993).

IV. ANALYSIS

A. The District Court Correctly Determined That Crystal Was Not A Resident Of The Jacobsons' Household.

Mocaby appeals from the district court's order granting Allstate's motion for summary judgment in the declaratory judgment action. Specifically, Mocaby argues that the district court erred in determining that Crystal was not a resident of the Jacobsons' household and thus not an insured person under the Jacobsons' homeowner's insurance policy.

The homeowner's insurance policy issued by Allstate to the Jacobsons provides in part:

Losses We Cover Under Coverage X:

Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy.

Mocaby argues that Crystal was an "insured person" under the Jacobsons' policy. The policy includes the following definition:

"Insured person(s)"—means you and, if a resident of your household:

a) any relative; and

b) any dependent person in your care.

While it is undisputed that Crystal is a relative of the Jacobsons, the policy does not define "resident." Mocaby asserts that Crystal was indeed a resident of the Jacobsons' household and thus an "insured person" under the policy.

Insurance policies are contracts of adhesion, not typically subject to negotiation between the parties, and any ambiguity must be construed...