Davis v. Foley

• Citation: 457 S.E.2d 532,193 W.Va. 595
• Decision Date: 14 April 1995
• Docket Number: No. 22361,22361
• Court: West Virginia Supreme Court
• Parties: Donna DAVIS, Individually and as the Administratrix of the Estate of Arlo Davis, Jr., Plaintiff Below, Appellant, v. William FOLEY, Arthur Wilkins, James Herron, Nationwide Mutual Insurance Company, Westfield Insurance Company, and Integon Insurance, DBA New South Insurance Company, Defendants Below, Appellees.

Page 532

457 S.E.2d 532

193 W.Va. 595

Donna DAVIS, Individually and as the Administratrix of the Estate of Arlo Davis, Jr., Plaintiff Below, Appellant, v. William FOLEY, Arthur Wilkins, James Herron, Nationwide

Mutual Insurance Company, Westfield Insurance

Company, and Integon Insurance, DBA New

South Insurance Company,

Defendants Below, Appellees.

No. 22361.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 24, 1995.

Decided April 14, 1995.

Syllabus by the Court

1. "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).

2. " '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 & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syl. pt. 2, Miller v. Whitworth, 193 W.Va. 262, 455 S.E.2d 821 (1995).

3. " 'Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.' Syl. pt. 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)." Syl. pt. 3, Cannelton Industries, Inc. v. Aetna Casualty & Surety Co. of America, 194 W.Va. 186, 460 S.E.2d 1 (1994).

4. The damages in a wrongful death action arise out of the death of the decedent thereby making a wrongful death action a derivative claim. As a result, when language in an insurance policy clearly limits recovery of derivative claims to the per person limit, the per occurrence limit does not apply even though "the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who were financially dependent upon the decedent at the time of his or her death ..." are entitled to share in the recovery in a wrongful death action pursuant to W.Va.Code, 55-7-6 [1992]. However, if there is language in the insurance policy which includes damages from a wrongful death as a separate bodily injury, then each person recovering for the wrongful death is entitled to a separate per person limit.

Homer A. Speaker and Dale Buck, Martinsburg, for appellant.

Catherine D. Munster and Robert W. Trumble, McNeer, Highland & McMunn, Clarksburg, for appellee, Westfield Ins. Co.

Michael D. Lorenson and Stuart A. McMillan, Bowles, Rice McDavid Graff & Love, Martinsburg, for appellee, Nationwide Mut. Ins. Co.

Patrick J. Nooney, Steptoe & Johnson, Hagerstown, MD, for appellees, William Foley and Integon Ins.

Oscar Bean, Bean & Bean, Moorefield, for appellees, Arthur Wilkins and James Herron.

McHUGH, Justice:

The appellant, Donna Davis appeals the January 19, 1994 orders of the Circuit Court of Hampshire County which granted summary judgment in favor of the appellees, Nationwide Mutual Insurance Company (hereinafter "Nationwide") and Westfield Insurance Company (hereinafter "Westfield") in a wrongful death action. ¹ For reasons set forth below, we affirm the order of the circuit court.

I

This case arose after the appellant's son, Arlo Davis, Jr., was killed in an automobile accident on December 28, 1992. The decedent was a passenger in an automobile driven by his brother, Todd Davis, and owned by William Foley. The appellant was insured by Westfield, and the Foley automobile was insured by Integon Insurance Company, dba New South Insurance Company. ² The Westfield policy provided underinsurance coverage of $50,000 per person and $100,000 per occurrence.

The automobile accident occurred when a vehicle owned by Arthur Wilkins and operated by James Herron crossed the center line and struck the Foley vehicle. The Wilkins' vehicle was insured by Nationwide. The Nationwide policy has liability limits of $25,000 per person and $50,000 per occurrence.

The decedent, who was not married and has no children, is survived by his mother father and two brothers. The appellant, who is the decedent's mother, filed a complaint seeking relief for loss of consortium, seeking relief for the wrongful death of the decedent, and seeking a declaratory judgment against the appellees. With respect to the declaratory judgment action, the appellant contended that in a wrongful death action the appellees should provide coverage under their respective insurance policies up to the per occurrence limit rather than up to the per person limit.

Nationwide has paid the appellant $25,000, which is the per person limit under the policy, and the appellee, Westfield, has paid the appellant $50,000, which is the per person limit under its policy. The appellant asserted that she has a right to collect more than one per person limit from the appellees since more than one person has a claim pursuant to the wrongful death action. The trial court below disagreed; and therefore, granted the appellees' motions for summary judgment from which the appellant appeals.

II

We are mindful that "[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). Furthermore, as we acknowledged in syllabus point 2 of Miller v. Whitworth, 193 W.Va. 262, 455 S.E.2d 821 (1995), " '[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 & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Lastly, " '[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.' Syl. pt. 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)." Syl. pt. 3, Cannelton Industries, Inc. v. Aetna Casualty & Surety Co. of America, 194 W.Va. 186, 460 S.E.2d 1 (1994). With this in mind, we will now examine the case before us.

III

The issue before us is as follows: does a wrongful death action give rise to a per person claim for damages for each person having a claim thereunder up to the per occurrence limits of liability, underinsured, or uninsured coverages, or does only a single per person limit apply no matter how many individuals might have suffered damages as a result of a single death. ³ The appellant alleges that a wrongful death action gives rise to a per person claim for damages for each person having a claim thereunder up to the per occurrence limits of liability, underinsured, or uninsured coverages. Conversely, the appellees assert that their insurance policies clearly limit recovery to a single per person limit in a wrongful death action no matter how many individuals might have suffered damages as a result of a single death.

The relevant portion of appellee Nationwide's insurance policy states:

Bodily injury limits shown for any one person are for all legal damages, including all derivative claims, claimed by anyone for bodily injury to one person as a result of one occurrence. Subject to this limit for any one person, the total limit of our liability shown for each occurrence is for all damages, including all derivative claims, due to bodily injury to two or more persons in any one occurrence.

Similarly, appellee Westfield's insurance policy asserts, in relevant part:

If the Declarations indicates an 'each person' and 'each accident' limit of liability for Underinsured Motorist Coverage, the limit of liability shown in the Declarations for 'each person' for Underinsured Motorist Bodily Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of bodily injury sustained by any one person in any one accident. Subject to this limit for 'each person', the limit of liability shown in the Declarations for 'each accident' for Underinsured Motorist Bodily Injury Coverage is our maximum limit of liability for all damages for bodily injury resulting from any one accident with an underinsured motor vehicle. The limit of liability shown in the Declarations for 'each accident' for Underinsured Motorist Property Damage Coverage is our maximum limit of liability for all damages to all property resulting from any one accident. This is the most we will pay regardless of the number of:

1. Insureds;

2. Claims made[.]

Both policies clearly limit coverage when there is a single death or bodily injury to per person limits for derivative claims. ⁴

This Court recently discussed an analogous insurance provision when addressing a similar issue in Federal Kemper Ins. Co. v. Karlet, 189 W.Va. 79, 428 S.E.2d 60 (1993). ⁵ The issue in Karlet was whether the minor children claiming loss of parental consortium were to be "treated as separate injured persons, subject to separate 'per person' and 'per occurrence' insurance liability limits, based on language in an automobile insurance policy." Id. 189 W.Va. at 80, 428 S.E.2d at 61 (footnote omitted). After examining case law from other jurisdictions, this Court concluded:

When a person is bodily injured in an automobile accident, an individual other than the bodily-injured person may also suffer damages as a result of such accident through loss of consortium. The claim for loss of consortium by an individual other than the one suffering bodily injury as a result of an automobile accident is generally recognized as arising out of the claim for damages of the bodily-injured person. As a result, the claim of the bodily-injured person and the claim for loss of consortium are covered within the same per person limit of liability provisions under the automobile insurance...