American States Ins. Co. v. Tanner

• Decision Date: 26 April 2002
• Docket Number: No. 29991.,29991.
• Citation: 563 S.E.2d 825,211 W.Va. 160
• Parties: AMERICAN STATES INSURANCE COMPANY, Plaintiff Below, Appellee, v. Jack TANNER; June Tanner; Louise Rietz Nelson, Administratrix of the Estate of Alvin B. Nelson; State Farm Insurance Company; and Enterprise Rent-A-Car of Kentucky, Defendants Below, Rachel Neal Handel, Administratrix of the Estate of Oliver Neal, Jr., Defendant Below, Appellant.
• Court: West Virginia Supreme Court

563 S.E.2d 825

211 W.Va. 160

AMERICAN STATES INSURANCE COMPANY, Plaintiff Below, Appellee, v. Jack TANNER; June Tanner; Louise Rietz Nelson, Administratrix of the Estate of Alvin B. Nelson; State Farm Insurance Company; and Enterprise Rent-A-Car of Kentucky, Defendants Below, Rachel Neal Handel, Administratrix of the Estate of Oliver Neal, Jr., Defendant Below, Appellant.

No. 29991.

Supreme Court of Appeals of West Virginia.

Submitted January 16, 2002.

Decided April 26, 2002.

William L. Frame, Esq., Wilson, Frame, Benninger & Metheney, P.L.L.C., Morgantown, West Virginia, Attorney for the Appellant.

Avrum Levicoff, Esq., Emily Hicks, Esq., Brown & Levicoff, P.C., Pittsburgh, Pennsylvania, Attorneys, for the Appellee. DAVIS, Chief Justice:

The appellant herein and defendant below, Rachel Neal Handel, administratrix of the Estate of Oliver Neal, Jr. [hereinafter referred to as "the Neal Estate"], appeals from an order entered November 27, 2000, by the Circuit Court of Monongalia County. In that order, the circuit court granted summary judgment to the appellee herein and plaintiff below, American States Insurance Company [hereinafter referred to as "American States"], and found that the rental vehicle involved in the underlying accident was not covered by the "regular use" provision of the American States policy of motor vehicle insurance. In its appeal to this Court, the Neal Estate complains that the circuit court's decision was erroneous. Upon a review of the parties' arguments, the record submitted for appellate consideration, and the pertinent authorities, we conclude that Mrs. Tanner's use of the rental vehicle at issue herein did not constitute regular use. Accordingly, we reverse the decision of the Circuit Court of Monongalia County and remand this case for further proceedings consistent with this Opinion.

I. FACTUAL AND PROCEDURAL HISTORY

On June 3, 1998, a fatal accident occurred when June Tanner, defendant below [hereinafter referred to as "Mrs. Tanner"], lost control of the rental vehicle she was driving and crashed into the front door of a Morgantown, West Virginia, drug store. As a result of this collision, one store patron, Oliver Neal, Jr., was fatally injured, and another customer, Alvin B. Nelson, was seriously injured.¹ Prior to this incident, in early May, 1998, Mrs. Tanner was involved in another car accident, allegedly caused by the other driver involved therein, which rendered her automobile, a Chevrolet Astrovan, undrivable. While the Astrovan was being repaired, the other driver's insurer, Harleysville Insurance, provided Mrs. Tanner with the rented Range Rover involved in the accident underlying the instant appeal. At the time of the June 3, 1998, incident, Mrs. Tanner had been the sole operator of the Range Rover, and she had been driving this vehicle for approximately 22 days.

As a result of this crash, both estates filed claims against Mrs. Tanner alleging that she had negligently operated her rental vehicle. Payments subsequently were made to the injured parties and/or their representatives by various insurance companies providing coverage for the Tanner vehicle. State Farm, which insured Mrs. Tanner's Astrovan and deemed the Range Rover to be a temporary substitute vehicle therefor, paid its full policy limits² to each Estate in exchange for a release of the Tanners' personal liability for the fatal accident. Similarly, Enterprise Rent-A-Car of Kentucky [hereinafter referred to as "Enterprise"], which insured the Range Rover as part of its rental agreement, paid its policy limits³ to both the Neal Estate and the Nelson Estate. Following these distributions, Mrs. Tanner and the two Estates' representatives sought additional insurance monies from the American States policy insuring Mrs. Tanner's husband's motor vehicle, a Chevrolet Lumina.

American States denied coverage under this factual scenario and, on January 4, 1999, filed a declaratory judgment action in the Circuit Court of Monongalia County. Through this action, American States sought to ascertain whether it was legally bound and obligated to provide insurance for this occurrence, denying that it was required to provide coverage based upon the "regular use" exclusion contained in Mr. Tanner's policy. This exclusion states that

B. We [American States] 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 a "family member"; or

b. furnished or available for the regular use of a "family member."

(Emphasis added).

Subsequent to American States' filing, the parties entered into a stipulation of facts, and American States filed a motion for summary judgment. By order entered November 27, 2000, the circuit court granted American States' motion, denying the claims of State Farm, the Tanners, and the Neal Estate to the contrary. In awarding summary judgment, the circuit court determined that the Range Rover was not a "regular use" vehicle as contemplated by Mr. Tanner's motor vehicle insurance policy providing coverage for his Lumina as it did not serve as a substitute or replacement therefor. Applying this reasoning, the circuit court likewise found that the American States policy did not cover Mrs. Tanner's use of the Range Rover. Moreover, the circuit court concluded that W. Va.Code § 33-6-29(b) (1992) (Repl.Vol.2000) did not render the American States policy applicable to the accident herein because "the Legislature did not anticipate the statute to require an insurance company to provide coverage for a rental vehicle that is being used as a replacement for a vehicle not covered by the policy."

From these rulings of the circuit court, the Neal Estate appeals to this Court.

II. STANDARD OF REVIEW

The instant appeal comes to this Court from an order granting summary judgment. Summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." W. Va. R. Civ. P. 56(c). In other words, "[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 Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). When this Court reviews an order granting summary judgment, we employ a plenary review. "A circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Mindful of this standard of review, we proceed to consider the parties' arguments.

III. DISCUSSION

On appeal to this Court, the Neal Estate presents a single issue for our resolution: does a "regular use" exclusion, in a motor vehicle insurance policy that insures one automobile and provides coverage to the policy-holder's spouse,⁴ preclude coverage for a rental vehicle driven by said spouse as a replacement vehicle for a different automobile insured under a separate policy of motor vehicle insurance.

We begin our inquiry with a review of elementary insurance law. In general, " `[l]anguage in an insurance policy should be given its plain, ordinary meaning.' Syl. Pt. 1, Soliva v. Shand, Morahan & Co., 176 W.Va. 430, 345 S.E.2d 33 (1986)." Syl. pt. 2, Russell v. State Auto. Mut. Ins. Co., 188 W.Va. 81, 422 S.E.2d 803 (1992). Thus, " `[w]here the provisions in an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended.' Syllabus, Keffer v. Prudential Ins. Co., 153 W.Va. 813, 172 S.E.2d 714 (1970)." Syl. pt. 1, Russell, 188 W.Va. 81, 422 S.E.2d 803. Accord Syl. pt. 5, Ward v. Baker, 188 W.Va. 569, 425 S.E.2d 245 (1992); Syl. pt. 3, Soliva, 176 W.Va. 430, 345 S.E.2d 33.

Insofar as exclusions contained in policies of insurance are concerned, we previously have held that "[i]nsurers 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." Syl. pt. 3, Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989). This sentiment also has been expressed by the West Virginia Legislature in W. Va.Code § 33-6-31(k) (1995) (Repl.Vol. 1996),⁵ which provides that "this section [shall not] be construed as preventing any insurer from incorporating in such terms, conditions and exclusions as may be consistent with the premium charged."⁶ Nevertheless, "[w]here the policy language involved is exclusionary, it will be strictly construed against the insurer in order that the purpose of providing indemnity not be defeated." Syl. pt. 5, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). For this reason, then, "[a]n insurance company seeking to avoid liability through the operation of an exclusion has the burden of proving the facts necessary to the operation of that exclusion." Syl. pt. 7, id.

Applying these tenets to the instant controversy, we find it necessary to consult the jurisprudence of other courts that have resolved the issue of first impression presented by the instant appeal: what constitutes regular use of a vehicle as that term is used in insurance policy exclusions? "The words `regular use' suggest a principal use as distinguished from a casual or incidental use.... `Regular use' means `habitual use' as opposed to occasional or incidental use." Crum & Forster Pers. Ins. Co. v. Travelers Corp., 428 Pa.Super. 557, 561, 631 A.2d 671, 673 (1993) (internal quotations and citations omitted). Another tribunal likewise has determined that "[t]he words ...