Canal Ins. Co. v. Dupont, Civil Action No. 5:13–cv–24764.

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtIRENE C. BERGER
Citation47 F.Supp.3d 460
PartiesCANAL INSURANCE COMPANY, Plaintiff, v. Michael DUPONT and Tracy L. Foley, Defendants.
Decision Date11 September 2014
Docket NumberCivil Action No. 5:13–cv–24764.

47 F.Supp.3d 460

Michael DUPONT and Tracy L. Foley, Defendants.

Civil Action No. 5:13–cv–24764.

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

Signed Sept. 11, 2014

Motion granted.

[47 F.Supp.3d 461]

Daniel R. Schuda, Schuda & Associates, Charleston, WV, for Plaintiff.

Michael Dupont Hinton, WV, pro se.

Tammy Bowles Raines, Warner Law Offices, Charleston, WV, for Defendants.

IRENE C. BERGER, District Judge.

The Court has reviewed the Plaintiff's Motion for Summary Judgment (Document 13),1 the Plaintiff's Memorandum of Law in Support of its Motion for Summary Judgment (Document 14), and the Defendant Tracy Foley's Memorandum in Opposition to Plaintiff Canal Insurance Company's Motion for Summary Judgment and Memorandum in Support Thereto (Document 17).2 The Court has also reviewed the Plaintiff's Supplement to its Motion for Summary Judgment (Document 26) 3 and Defendant Tracy Foley's Supplemental Response to Plaintiff Canal Insurance Company's Supplemental Motion for Summary Judgment (Document 28).4 For the reasons stated more fully herein, the Court finds that Plaintiff Canal Insurance Company's motion for summary judgment should be granted.


This declaratory judgment action arises out of an automobile accident between Defendants Michael Dupont (Mr. Dupont) and Tracy Foley (Mr. Foley). The facts are largely undisputed. Specifically, on May 22, 2013, Mr. Dupont was operating a 2004 GMC Safari minivan when he crossed over the center line and struck a vehicle driven by Mr. Foley near White Oak, Raleigh County, West Virginia.5 At the time,

[47 F.Supp.3d 462]

Mr. Dupont worked for Williams Transport as a driver primarily transporting CSX Transportation employees to and from job sites.6

On the day of the accident, Mr. Dupont was using the van on his day off, allegedly without permission from Williams Transport, which expressly prohibited its employees from using company vehicles for personal use. Mr. Dupont signed a form document on October 18, 2008, wherein he expressly agreed “that [he is] never to use Williams Transport vehicles for personal use of any kind.” ( See Document 13–1 at 3.) He also executed an affidavit following the accident wherein he swore that “[o]n a date before May 22, 2013, I was specifically instructed by supervisors and superiors of my then-employer, [Williams Transport] that I was never to use Williams Transport vehicles for personal use of any kind,” and further swore that he had previously “signed a written statement acknowledging the instruction and direction that I was never to use Williams Transport vehicles for personal use of any kind.” (Document 13–1 at 1.) He then stated that on the date of the accident he was using the Williams Transport vehicle “without the knowledge or permission of” his employer to travel from his home to the home of a friend. ( Id. at 1–2.) Finally, he maintains that at the time of the accident, he “was not acting within the scope of his employment ... and ... was not furthering the business of Williams Transport.” ( Id. at 2.)

Canal Insurance Company (Canal) issued a commercial automobile policy, PIP00123002, to Williams Transport with a coverage period of January 30, 2013, through January 30, 2014. The relevant policy language indicated that Canal “will pay all sums an ‘insured’ must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’ ” ( Compl., Document 1 at 3.) The Policy also defines insured as: “(a) you for any covered ‘auto;’ (b) anyone else while using with your permission a covered ‘auto’ you own, hire, or borrow ...;” or “(c) anyone liable for the conduct of an ‘insured’ described above but only to the extent of that liability.” ( Id.)

Canal Insurance states that Defendant Foley “has asserted a claim against the Policy for his injuries and damages resulting from the subject accident.” (Document 1 at 3.) As a result, on October 10, 2013, it filed a Complaint (Document 1) for declaratory judgment, requesting that “the Court find that Plaintiff Canal has no duty to defend or indemnify Defendant Dupont under the Policy as to the subject accident,” and “that Plaintiff has no duty or liability to Defendant Foley under the Policy as to the subject accident.” 7 (Document 1 at 4.)

On January 23, 2014, Canal filed its Motion for Summary Judgment and accompanying Memorandum in Support. The Defendant, Tracy Foley, filed his Memorandum in Opposition on February

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6, 2014.8 Discovery between the parties continued, and as a result, Canal filed a Supplement to its Motion for Summary Judgment on June 5, 2014, and Mr. Foley filed his Supplemental Response on June 19, 2014.

A. Summary Judgment

The well-established standard for consideration of a motion for summary judgment is that summary judgment should be granted if the record, including the pleadings and other filings, discovery material, depositions, and affidavits, “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 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).

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 satisfy its burden of showing a genuine factual dispute by offering more than “[m]ere speculation” or a “scintilla of evidence” in support of its position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001).

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. On the other hand, if 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.

B. Determination of Insurance Policy Coverage

The Supreme Court of Appeals of West Virginia has instructed that the “[d]etermination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law.” Tennant v. Smallwood, 211 W.Va. 703, 706, 568 S.E.2d 10 (2002) (citation and quotation omitted). “[W]here the provisions of 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

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intended.” Keffer v. Prudential Ins. Co., 153 W.Va. 813, 815–16, 172 S.E.2d 714 (1970) (citations omitted).

On the other hand, if a policy's provisions are ambiguous, they will be liberally construed in favor of the insured. Aetna Cas. & Sur. Co. v. Pitrolo, 176 W.Va. 190, 342 S.E.2d 156 (1986) (citations omitted) (“since insurance policies are prepared solely by insurers, any ambiguities in the language of insurance policies must be construed liberally in favor of the insured.”) However, “such construction should not be unreasonably applied to contravene the object and plain intent of the parties.” Syl. Pt. 6, Hamric v. Doe, 201 W.Va. 615, 499 S.E.2d 619 (1997) (quoting Syl. Pt. 2, Marson Coal Co. v. Ins. Co. of State of Pennsylvania, 158 W.Va. 146, 210 S.E.2d 747 (1974)). A policy provision is ambiguous if it is “reasonably susceptible of two different meanings or ... of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning.Glen Falls Inc. Co. v. Smith, 217 W.Va. 213, 617 S.E.2d 760, 768 (2005) (quoting Syl. Pt. 5, Hamric, 499 S.E.2d 619 (emphasis in original)).

If coverage is not intended to apply, the policy should clearly indicate that insurance is not available. “An insurer wishing to avoid liability on a policy purporting to give general or comprehensive coverage must make exclusionary clauses conspicuous, plain and clear, placing them in such a fashion as to make obvious their relationship to other policy terms, and must bring such provisions to the attention of the insured.” Satterfield v. Erie Ins. Property and Cas., 217 W.Va. 474, 618 S.E.2d 483, 487 (2005) (quoting Syl. pt. 10, Nat'l Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds by Potesta v. U.S. Fidelity & Guard. Co., 202 W.Va. 308, 504 S.E.2d 135 (1998)).


Canal notes that West Virginia Code § 33–6–31 requires that an insurance policy include coverage for anyone “responsible for the use of or using the motor vehicle...

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