Cleaver v. Big Arm Bar & Grill, Inc., No. 24508.

• Court: Supreme Court of West Virginia
• Writing for the Court: WORKMAN, Justice
• Citation: 202 W.Va. 122,502 S.E.2d 438
• Parties: Lawrence W. CLEAVER, Administrator of the Estate of Douglas J. Cleaver, Appellant, v. The BIG ARM BAR & GRILL, INC., Westfield Insurance Company; Robert L. Buracker, Sheriff of Jefferson County, West Virginia, as Ancillary Administrator of the Estate of Andrew John Haba; and Erie Insurance Company, Appellees.
• Docket Number: No. 24508.
• Decision Date: 02 April 1998

502 S.E.2d 438
202 W.Va. 122

Lawrence W. CLEAVER, Administrator of the Estate of Douglas J. Cleaver, Appellant,
v.
The BIG ARM BAR & GRILL, INC., Westfield Insurance Company; Robert L. Buracker, Sheriff of Jefferson County, West Virginia, as Ancillary Administrator of the Estate of Andrew John Haba; and Erie Insurance Company, Appellees

No. 24508.

Supreme Court of Appeals of West Virginia.

Submitted February 17, 1998.

Decided April 2, 1998.

502 S.E.2d 439

John C. Skinner, Jr., F. Samuel Byrer, Deborah B. Hillyard, Nichols & Skinner, Charles Town, for Appellant

Catherine D. Munster, Robert W. Trumble, McNeer, Highland, McMunn & Varner, Clarksburg, for Appellee Westfield.

James D. Lamp, Sheryl A. Rucker, Lamp, O'Dell, Bartram & Entsminger, Huntington, Patrick J. Nooney, Hagerstown, MD, for Appellee Erie Insurance.

WORKMAN, Justice:

Lawrence M. Cleaver, as administrator of his son's estate, appeals from the January 28, 1997, ruling of the Circuit Court of Jefferson County granting summary judgment to Respondents Erie Insurance Company ("Erie") and Westfield Insurance Company ("Westfield") in a post-verdict declaratory judgment action to determine the availability of insurance coverage. Upon a full review of this matter, we affirm the decision of the lower court.

I. FACTS

The accident that resulted in Mr. Cleaver's son's death occurred on November 30, 1990. Andrew Haba ("Haba"), a 280-pound college freshman, drank heavily at the Big Arm Bar and Grill until closing time at 2:00 a.m. on the date of the accident. He then drove his vehicle to the Altos Club and parked his car on the berm of the west-bound lane of Route 45. His friends exited the car while he remained inside. One of Haba's friends returned to the vehicle and informed Haba that "everybody was ready to go in." Haba then exited the vehicle, locked the front door, and sprinted diagonally across Route 45 towards the Altos Club. Although he successfully crossed one of the lanes of Route 45, as he attempted to cross the second lane he collided with a Pontiac Fiero driven by Michael Hulbert ("Hulbert"). Both Haba and Douglas Cleaver, a passenger in the Hulbert vehicle, died as a result of the accident.

Mr. Cleaver filed a wrongful death action against Haba, Hulbert, and the Big Arm Bar and Grill. The case proceeded to trial and the jury returned a verdict, finding Haba 80% negligent and the Big Arm Bar and Grill 20% negligent. Hulbert was determined to have no liability in connection with the accident. The jury awarded $1,832,757.99 in compensatory damages and $500,000 in punitives. Erie paid $1.5 million plus interest to Appellant, which sum represents the policy limits of Haba's homeowner's and umbrella insurance policies.¹ Appellant states that as

502 S.E.2d 440

of December 15, 1997, the unpaid amount of the compensatory damage portion of the judgment was $484,117.43 plus interest of $103.55 per day

Following the verdict, Appellant was granted leave by the circuit court to file an amended complaint. Through the amended complaint, Appellant sought a declaratory judgment regarding the applicability of Haba's automobile liability insurance. A favorable declaratory judgment ruling would have made available another $250,000 of insurance proceeds under the automobile liability policy issued by Erie on the Haba vehicle. In addition, it would have permitted Appellant to seek underinsurance proceeds from the insurers of the Cleaver and Hulbert vehicles. The Cleavers have $750,000² in underinsurance coverage through Erie and Hulbert has $100,000 worth of underinsurance coverage through a policy issued by Westfield.

Under the terms of the Erie automobile liability policy, coverage exists only if Douglas Cleaver's death is determined to have arisen out of the use of the Haba vehicle. On January 28, 1997, the circuit court granted summary judgment in favor of Erie and Westfield on the issue of whether Haba was "using" his vehicle at the time of the accident. The lower court held that:

The accident which caused Douglas Cleaver's death did not arise out of the ownership, maintenance, use, loading or unloading of Andrew John Haba's vehicle. It thus follows that there is no insurance coverage under the Erie Haba auto liability policy. As Haba was not using his vehicle, he was also not an uninsured or underinsured motorist under West Virginia statute or under the applicable Erie policy. It thus also follows that there is no applicable coverage under the Erie, Cleaver UIM policy or the Westfield, Hulbert UIM policy for the death of Douglas Cleaver.

In his appeal to this Court, Appellant argues that the lower court erred in concluding that the Haba vehicle was not being "used" at the time of the accident and also that Erie is estopped from denying automobile liability coverage based on correspondence issued by an Erie claims representative in December 1991.

II. DISCUSSION

A. "Use" of Vehicle

We turn first to the lower court's decision to grant summary judgment on the grounds that the Haba vehicle was not being "used" at the time of the accident. Our standard of review for summary judgment rulings, as we stated in syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), is "de novo." See also Syl. Pt. 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995) (holding that "circuit court's entry of a declaratory judgment is reviewed de novo").

Appellant maintains that the Haba vehicle was being "used" at the time of the accident based on the temporal proximity of the accident to the vehicle's actual use and the causal connection of the vehicle to the accident. Conversely, Erie and Westfield both contend that Haba's "use" of the vehicle had ceased at the time of the accident and therefore, the requisite causal connection does not exist. See Trent v. Cook, 198 W.Va. 601, 606, 482 S.E.2d 218, 223 (1996) (stating that "`[c]ases construing the phrase "arising out of the ... use of a motor vehicle" uniformly require that the injured person establish a causal connection between the use of the motor vehicle and the injury'") (quoting Baber v. Fortner ex rel. Poe, 186 W.Va. 413, 417, 412 S.E.2d 814, 818 (1991)); see also Johnson v. State Farm Mut. Auto. Ins. Co., 190 W.Va. 526, 438 S.E.2d 869 (1993) (holding that causal connection between vehicle's use and injury must first be established to invoke coverage under use of non-owned vehicle policy provision).

In support of his position that the Erie automobile liability policy provides coverage under the facts of this case, Appellant cites the policy language stating, "[w]e will pay for damages for which you are legally responsible. These damages must be caused by an

502 S.E.2d 441

accident covered by this policy. The accident must arise out of the ownership, maintenance, use, loading or unloading of an auto we insure." Appellant argues that Haba comes within the policy meaning of "use" since he had driven his vehicle to the location of the Alto's Bar, parked the vehicle in a location that forced him to cross the road, and was hit only a few seconds after he exited the vehicle. Unlike those recent decisions in which this Court has been asked to resolve issues concerning the policy term "use," the Erie policy does not contain language requiring that a person must "occupy" the vehicle for coverage to apply. See Trent, 198 W.Va. at 605, 482 S.E.2d at 222; Adkins v. Meador, 201 W.Va. at 152, 494 S.E.2d at 919 (1997)

Since the term "use" is not defined by the policy, Appellant looks to cases from other jurisdictions that have found a vehicle to be in "use" where an individual has exited from a vehicle just prior to the accident's occurrence. One such case upon which Appellant places much reliance is Nationwide Mutual Insurance Co. v. Davis, 118 N.C.App. 494, 455 S.E.2d 892, rev. denied, 341 N.C. 420, 461 S.E.2d 759 (1995). That case involved a six-year-old child who exited a parked van, walked into a one-lane roadway separating the vehicle from a store towards which the minor was heading for ice cream, and was struck by another vehicle. The North Carolina court found that the van was being "used" for purposes of automobile liability coverage based, in part, on the fact that the child had to cross the roadway to reach the store due to the location where the vehicle was parked. Id., 455 S.E.2d at 895; see also National Indem. Co. v. Farmers Home Mut. Ins. Co., 95 Cal.App.3d 102, 157 Cal.Rptr. 98 (1979) (holding that injuries sustained by small child after exiting parked vehicle and running into path of oncoming car arose out of "use" of parked vehicle); Faber v. Roelofs, 311 Minn. 428, 250 N.W.2d 817 (1977) (finding that elementary school child's fall under wheels of school bus arose out of "use" of vehicle). Analogizing Davis to our present case,³ Appellant states that because Haba had to cross Route 45 to get to his destination of Alto's, this Court should follow the...