Aluise v. Nationwide Mut. Fire Ins. Co.
| Citation | 625 S.E.2d 260 |
| Decision Date | 01 December 2005 |
| Docket Number | No. 32724.,No. 32723.,32723.,32724. |
| Court | West Virginia Supreme Court |
| Parties | Thomas J. ALUISE and Jacqueline B. Aluise, Plaintiffs Below, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Betsy A. Ross, and Terry Ridenour, Defendants Below, Appellees. |
Syllabus by the Court
1. Rule 56(c) of the West Virginia Rules of Civil Procedure does not contain an exhaustive list of materials that may be submitted in support of summary judgment. In addition to the material listed by that rule, a trial court may consider any material that would be admissible or usable at trial.
2. Rule 10(c) of the West Virginia Rules of Civil Procedure makes a copy of any written instrument that is an exhibit to a pleading a part thereof for all purposes. The contents of such exhibits may be considered as evidence for dispositive motions.
3. Absent policy language to the contrary, a homeowner's policy defining "occurrence" as "bodily injury or property damage resulting from an accident" does not provide coverage for an insured homeowner who is sued by a home buyer for economic losses caused because the insured negligently or intentionally failed to disclose defects in the home.
4. In a proceeding heard by a Special Commissioner appointed by a trial court, a party is entitled to have the proceeding recorded if a timely request is made. The costs incurred in recording the proceeding shall be borne by the party making the request if the parties have not made other arrangements for paying such costs.
Vincent J. King, South Charleston, for Appellants.
Dale A. Buck, Martin & Seibert, Martinsburg, for Appellees.
This case involves two consolidated appeals filed by Thomas J. Aluise and Jacqueline B. Aluise, appellants/plaintiffs below (hereinafter referred to as "the Aluises"), from two adverse summary judgment orders entered by the Circuit Court of Kanawha County. The two orders granted summary judgment to Nationwide Mutual Fire Insurance Company and two of its employees, Betsy A. Ross and Terry Ridenour, appellees/defendants below (hereinafter collectively referred to as "Nationwide"). Here, the Aluises contend the circuit court erred in granting Nationwide summary judgment, denying their motions for summary judgment, and erred in adopting the recommendations of a discovery commissioner. Based upon the arguments of the parties and a careful review of the record, we affirm the circuit court's order.
This litigation grew out of problems the Aluises encountered after they purchased their home. In October 1994, the Aluises purchased a home in Charleston, West Virginia, from Christer and Natalie Forssenius (hereinafter referred to as "the Forsseniuses"). Prior to the sale, the Forsseniuses gave the Aluises a Seller's Property Disclosure. The disclosure stated that (1) there were no structural problems with the home, (2) no substantial alterations had been made to the home, and (3) no moisture or water problem existed in the basement or crawl space of the home.
Over the course of several years the Aluises began noticing cracks and moisture buildup in parts of their home. In June of 2002, the Aluises hired a contractor to repair a crack in the garage portion of the basement. The contractor advised the Aluises that there were indications that the garage crack had been previously repaired. In July, 2002 an engineer inspected the home. The engineer found that structural movement had taken place on the front and side foundational walls. In November of 2002, a contractor discovered that a "false wall" had been built in the basement, approximately five inches from the concrete block. Additionally, there were signs that previous efforts had been made to repair the concrete block.
As a consequence of discovering the concealed structural problems in the home, the Aluises filed an action on December 23, 2002 against the Forsseniuses and others.1 Nationwide, who had issued a homeowner's policy to the Forsseniuses when they owned the home, issued a denial of coverage letter on January 3, 2003, stating that the allegations in the complaint did not fall within the Forsseniuses' homeowner's policy.2
In April of 2003, the Forsseniuses allowed judgment to be entered against them in the amount of $34,000.00. Also, the Forsseniuses assigned the Aluises any first-party bad faith claim they may have had against Nationwide. In exchange for the assignment, the Aluises entered into a covenant not to execute the judgment against the Forsseniuses.
On July 18, 2003, the Aluises filed an action against Nationwide in the Circuit Court of Kanawha County. The complaint asserted causes of action for first-party breach of contract, first-party bad faith settlement, and third-party bad faith settlement. After answering the complaint, Nationwide filed a motion for summary judgment on December 24, 2003.
On January 5, 2004, while the case was still pending in Kanawha County, the Aluises filed a separate action in the Circuit Court of Cabell County against Nationwide, its adjuster Betsy A. Ross, and its claims legal counsel, Terry Ridenour. The Cabell County complaint asserted twelve causes of action that included three breach of contract claims involving homeowner's policies allegedly issued to the Forsseniuses in West Virginia, Indiana and Virginia; four first-party bad faith claims; and five third-party bad faith claims.
On April 28, 2004, the Circuit Court of Kanawha County entered an order consolidating the two actions. This order also bifurcated the contract coverage and duty to defend issues from the bad faith claims, and stayed discovery on the bad faith claims.
On March 31, 2004, the Aluises filed nine motions for partial summary judgment.3 On June 16, 2004, the circuit court heard oral arguments on five of the Aluises' motions for partial summary judgment, and on Nationwide's previously filed motion for summary judgment relating to the issues of coverage and the duty to defend. By order entered July 22, 2004, the circuit court granted Nationwide's motion for summary judgment concluding there was no coverage or duty to defend. The order also denied the Aluises' motions for partial summary judgment.
Nationwide filed a motion for summary judgment on the remaining bad faith claims on August 9, 2004. The Aluises responded to the motion by arguing that the July 22 summary judgment order involved only the West Virginia policy, and that issues related to coverage and the duty to defend under the Virginia and Indiana policies remained. The Aluises also asked the court to rule upon its previously filed partial summary judgment motions involving the bad faith claims. Nationwide replied to the Aluises' response by pointing out that the controlling language of the Virginia policy was identical to the West Virginia policy.4 Nationwide also alleged that the Aluises failed to show that an Indiana policy was issued to the Forsseniuses. By order entered December 16, 2004, the circuit court granted Nationwide's motion for summary judgment on all remaining issues and denied the Aluises remaining motions for partial summary judgment. Thereafter, the Aluises filed separate appeals to this Court for the summary judgment orders entered on July 22 and December 16, 2004. We consolidated the two appeals for purposes of our review.
This case involves two orders by the circuit court granting summary judgment to Nationwide. The standard of review of a circuit court's entry of summary judgment is de novo. Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). It is equally well-established that, as here, "`[t]he interpretation of an insurance contract. . . is a legal determination which, like the court's summary judgment, is reviewed de novo on appeal.'" Murray v. State Farm Fire & Cas. Co., 203 W.Va. 477, 482, 509 S.E.2d 1, 6 (1998) (quoting Payne v. Weston, 195 W.Va. 502, 506-07, 466 S.E.2d 161, 165-66 (1995)). This Court has held that "[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." Syl. pt. 3, Aetna Casualty & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
The Aluises have made numerous separate assignments of errors from the summary judgment orders entered on July 22 and December 16. They have also assigned error to a discovery order entered by the circuit court on February 25, 2004. We will examine separately the issues presented for each order.
The July 22 summary judgment order involved the initial complaint filed by the Aluises in the Circuit Court of Kanawha County. That summary judgment order disposed of allegations involving the West Virginia homeowner's policy issued to the Forsseniuses. The Aluises have raised numerous issues concerning the July 22 order. However, we need address only three of those issues: the evidence considered by the circuit court, the coverage extended by the policy, and the duty to defend.
1. The evidence considered by the circuit court. The Aluises first contend that summary judgment should be reversed because the circuit court relied on evidence that was outside the parameters of Rule 56. According to the Aluises, the only type of evidence a circuit court may consider on a motion for summary judgment are pleadings, depositions, answers to interrogatories, admissions and affidavits. Further, the Aluises argue that Nationwide did not present this type of evidence and, instead, relied upon "extraneous" evidence not contemplated by Rule 56.
Rule 56(c) states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to...
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