Federal Kemper Ins. v. Sicherman

• Decision Date: 20 June 1990
• Docket Number: Civ. A. No. 88-9757.
• Parties: FEDERAL KEMPER INSURANCE v. Surena M. SICHERMAN, Administratrix of the Estate of Andrew C. Sicherman; and Robert W. Charles and Jay W. Charles; and Joseph K. Davis and Shirley A. Davis, Administrators of the Estate of Jo Ann Davis.
• Court: U.S. District Court — Eastern District of Pennsylvania

739 F. Supp. 991

FEDERAL KEMPER INSURANCE v. Surena M. SICHERMAN, Administratrix of the Estate of Andrew C. Sicherman; and Robert W. Charles and Jay W. Charles; and Joseph K. Davis and Shirley A. Davis, Administrators of the Estate of Jo Ann Davis.

Civ. A. No. 88-9757.

United States District Court, E.D. Pennsylvania.

June 20, 1990.

Kean K. McDonald, Philadelphia, Pa., for plaintiff.

Joel D. Smith, Lancaster, Pa., for defendant Sicherman.

Samuel M. Mecum, Lancaster, Pa., for defendants Charles.

Thomas J. Floyd, Jr., Lancaster, Pa., for defendants Davis.

DECISION AND ORDER

VAN ANTWERPEN, District Judge.

INTRODUCTION

This action for a declaratory judgment, pursuant to 28 U.S.C.A. § 2201 (West 1982 & Supp.1990), is before us on diversity jurisdiction, 28 U.S.C.A. § 1332 (West 1966 & Supp.1990). Plaintiff Federal Kemper Insurance Company ("Federal Kemper") seeks a declaration concerning a certain Automobile Insurance Policy issued to defendant Jay W. Charles, covering a 1983 Dodge Omni automobile (the "Omni"). Federal Kemper claims it is not obligated to defend or indemnify Jay Charles' son Robert W. Charles or the Estate of Andrew C. Sicherman for any liability resulting from an automobile accident involving the Omni on December 20, 1987. In that unfortunate accident both the driver of the Omni, fourteen year old Andrew Sicherman, and his passenger, eighteen year old Jo Ann Davis, were killed. The parties have filed Motions for Summary Judgment¹ and on October 21, 1989 the parties stipulated that there were no material issues of fact for a Court or a jury to determine, and that this case might be decided by the Court on the Motions for Summary Judgment. At oral argument on Friday, June 15, 1990, the parties, with Court approval, went further and agreed on the record that this Court² should decide this case on the merits as a non-jury matter on the basis of the following facts which they stipulated and agreed to in writing:

STIPULATED FACTS

1. The Omni was titled in the name of Jay Charles. (R. Charles Depo. p. 25, Davis Brief, Exhibit D)

2. At one point Jay Charles considered transferring title to the Omni to Robert Charles but decided not to do so because it would have increased his insurance cost and because his agent told him the car was already insured. (J. Charles Depo. p. 53)

3. Jay Charles maintained the Omni at his expense. (J. Charles Depo. pp. 26, 84-85) 4. Jay Charles, at his own expense, had maintenance performed on the brakes of the Omni as recently as October or early December 1987. (Kemper Memo, Exhibit G and Exhibit H)

5. Each user of the Omni provided gas for the car. (J. Charles Depo. p. 26)

6. The Policy was obtained by Jay Charles in his name. (Kemper Memo, Exhibit D)

7. At the time of the accident Robert Charles, was 17 years of age. (R. Charles Depo., p. 14)

8. Jay and Jean Charles adopted Robert Charles in 1977. (J. Charles Depo. p. 6)

9. For a period of two or three months before the accident Robert Charles lived away from his parent's home a great part of the time. (R. Charles Depo., pp. 7, 81-84, J. Charles Depo. pp. 4-10)

10. In the period before the accident, when not living in his parents home, Robert Charles lived with friends or in the Omni, and had no regular abode other than his parents home. (R. Charles Depo. pp. 7, 84-89)

11. In the period before the accident, while not living in his parents home, Robert Charles had possession of the Omni and his father's set of keys to the Omni, without the explicit permission of his father, however he had the implied permission of his father to use the Omni. (R. Charles Depo. pp. 84-85)

12. From the vantage point of Jay Charles, while Robert Charles was living away from home with the Omni, Robert Charles was using the Omni. During this time other family members were not using the Omni. (J. Charles Depo. p. 85)

13. During the period before the accident, while Robert Charles was not living in his parents home, Jay Charles took no steps to reclaim the Omni from his son. (J. Charles Depo. p. 79)

14. Robert Charles' parents wanted him to return home. (J. Charles Depo. p. 47)

15. Jay Charles visited Robert Charles at a friend's home while Robert was living away from home prior to the accident. (J. Charles Depo. pp. 34-36)

16. Robert Charles visited his home about one week before the accident. (J. Charles Depo. p. 29)

17. During the time he was away from home prior to the accident, Robert's possessions were at his parents' home. (J. Charles Depo. pp. 46, 67)

18. After the accident, Robert Charles returned to his parents home, where he stayed until January 1, 1988. (R. Charles Depo. p. 5)

19. Robert Charles was a member of the family of Jay Charles at the time of the accident.

20. At the time of the accident Andrew Sicherman, was 14 years and six months old. (Davis Brief, Exhibit D)

21. At the time of the accident Andrew Sicherman was not licensed to drive on the public highway. (Davis Brief, Exhibit D)

22. Andrew Sicherman had told Robert Charles that he was 16 years of age, and Robert Charles accepted his statement. (R. Charles Depo. pp. 19, 91)

23. Robert Charles believed that Andrew Sicherman did not have a driver's license. (R. Charles Depo. pp. 22, 64-65, 90-92, 99-100)

24. Robert Charles considered Andrew Sicherman his best friend. (R. Charles Depo. p. 19)

25. About two or three months before the accident Robert Charles had permitted Andrew Sicherman to drive the Omni on the public highway under his supervision. (R. Charles Depo. pp. 19, 22-24, 95-96)

26. Robert Charles described Andrew Sicherman's driving as follows: "He seemed a little jittery but I didn't see—I didn't see that there was a really any big problem that he had with driving. He seemed to handle it half decently good." (R. Charles Depo. p. 23)

27. At the time of the accident, Jo Ann Davis was 18 years old. (Davis Brief, Exhibit D)

28. Jo Ann Davis was a licensed driver. (Davis Brief, Exhibit D) 29. Jo Ann Davis knew that Andrew Sicherman had driven the Omni. (R. Charles Depo. pp. 96)

30. Jo Ann Davis had questioned Robert Charles about whether Andrew Sicherman had a driver's license. (R. Charles Depo. p. 100)

31. Jo Ann Davis told Robert Charles that Andrew Sicherman had driven her car. (R. Charles Depo. pp. 100, 112)

32. Robert Charles and Jo Ann Davis considered themselves to be boyfriend/girlfriend at the time of the accident. (R. Charles Depo. p. 13)

33. Prior to the day of the accident, Jay Charles became aware of two incidents within three weeks before the accident where Robert had permitted Jo Ann Davis and Michelle Kaplan to operate the Omni.

34. Jay Charles had expressed disapproval of Robert Charles' allowing Jo Ann and Michelle to use the Omni. (R. Charles Depo. pp. 33-34, 101, J. Charles Depo. pp. 28, 34-35, Kemper Memo, Exhibit H)

35. When Jay Charles was questioned at his deposition he stated that he was surprised that Robert Charles was not operating the Omni at the time of the accident. (J. Charles Depo. p. 39)

36. Jay Charles never gave explicit permission for Andrew Sicherman to drive the Omni. (R. Charles Depo. p. 35, J. Charles Depo. p. 39)

37. Prior to the accident, Jay Charles was unaware that Andrew Sicherman had ever driven the Omni. (R. Charles Depo. pp. 63-64, 97, J. Charles Depo. pp. 36, 38, 83)

38. Jay Charles never gave explicit permission for Jo Ann Davis to drive the Omni. (R. Charles Depo. p. 35)

39. Jay Charles never gave Robert Charles explicit permission to allow anyone other than himself to operate the Omni. (J. Charles Depo. p. 37)

40. Jay Charles never explicitly forbade Robert Charles to permit other drivers to operate the Omni. (J. Charles Depo. pp. 36-38, 76-77)

41. At the Davis home the cars were parked in such a way that the Kaplan car, with Robert Charles driving, had to be moved before the Omni, with Andrew Sicherman driving, could leave. (R. Charles Depo. p. 42-46)

42. As the cars were leaving the driveway, Robert Charles saw that Andrew Sicherman was driving the Omni. (R. Charles Depo. p. 47, Kemper Memo, Exhibit I)

43. Robert Charles did not take exception to Andrew Sicherman driving the Omni because he knew Andrew had driven it before, because he believed Andrew to be 16 years old and because Jo Ann was with Andrew. (R. Charles Depo. p. 47, Kemper Memo, Exhibit I)

44. Robert Charles did not give Andrew Sicherman explicit permission to drive the Omni on the day of the accident. (R. Charles Depo. p. 115)

45. Robert Charles did not give Jo Ann Davis explicit permission to allow Andrew Sicherman to drive the Omni on the day of the accident. (R. Charles Depo. p. 115)

46. Robert Charles did not explicitly forbid Andrew Sicherman to drive the Omni on the day of the accident. (R. Charles Depo. p. 115)

47. Robert Charles did not explicitly forbid Jo Ann Davis to permit Andrew Sicherman to drive the Omni on the day of the accident. (R. Charles Depo. p. 115)

48. At one point after leaving the Davis home, Robert Charles stopped so that the Omni, with Andrew Sicherman driving, could catch up with him. (R. Charles Depo. p. 107)

49. After the Omni caught up with him, Robert Charles continued down the road. (R. Charles Depo. p. 107)

50. Both cars stopped for a traffic light in downtown Strasburg, with the Omni, with Andrew Sicherman driving being behind the Kaplan car with Robert Charles driving. (R. Charles Depo. p. 108)

51. Robert Charles could have prevented Andrew Sicherman from operating the Omni on the public highway at the time of the accident. (R. Charles Depo. p. 105) 52. Robert Charles did not prevent Andrew Sicherman from operating the Omni on the public highway at the time of the accident. (R. Charles Depo. p. 105)

53. Paragraph 8 of the Complaint for Declaratory Judgment reads as follows:

8 On December 20, 1987, defendant, Robert W. Charles ("Robert"), who is the son of Jay, was in possession of a 1983 Dodge Omni automobile owned by Jay and insured under the Policy. On

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