Glen Falls Ins. Co. v. Smith

• Decision Date: 01 July 2005
• Docket Number: No. 31972.,31972.
• Court: West Virginia Supreme Court
• Parties: GLEN FALLS INSURANCE COMPANY, Appellee and Plaintiff Below, v. Billie Joe SMITH, Robin Smith and Johnny Combs, Appellants and Defendants Below. GMAC Insurance Company, Appellee and Plaintiff Below, v. Johnny Combs, Appellant and Defendant Below.

Page 760

617 S.E.2d 760

GLEN FALLS INSURANCE COMPANY, Appellee and Plaintiff Below, v. Billie Joe SMITH, Robin Smith and Johnny Combs, Appellants and Defendants Below.

GMAC Insurance Company, Appellee and Plaintiff Below, v. Johnny Combs, Appellant and Defendant Below.

No. 31972.

Supreme Court of Appeals of West Virginia.

Submitted: February 23, 2005.

Filed: July 1, 2005.

COPYRIGHT MATERIAL OMITTED

Charles B. Mullins, II, Pineville, for Appellants.

Rochelle L. Brightwell, Pietragallo, Bosick & Gordon, Weirton, for Glen Falls Insurance Company.

Robert P. Martin, Phillip C. Monroe, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, P.L.L.C., Charleston, for GMAC Insurance Company.

Justice BENJAMIN delivered the opinion of the Court.

Justice DAVIS concurs and reserves the right to file a separate opinion.

Chief Justice ALBRIGHT dissents in part, concurs in part, and reserves the right to file a separate opinion.

Justice STARCHER dissents in part, concurs in part, and reserves the right to file a separate opinion.

BENJAMIN, Justice.

These consolidated actions are before the Court upon the appeal of the Appellant, Johnny Combs, defendant below, from the December 18, 2003 order of the Circuit Court of Wyoming County in Civil Action No. 02-C-257,¹ and in Civil Action No. 03-C-27.² By its December 18, 2003 order, the Circuit Court granted both the motion of the Appellee, Glen Falls Insurance Company ("Glen Falls"), plaintiff below, for summary judgment in Civil Action No. 02-C-257 ("the Glen Falls case"), and the motion of the Appellee, GMAC Insurance Company ("GMAC"), plaintiff below, for summary judgment in Civil Action No. 03-C-27 ("the GMAC case").

In the Glen Falls case, Combs contends that the circuit court erred in determining as a matter of law that he was neither a "ward" nor a "foster child" of Billie Joe Smith, the named insured in a policy of automobile insurance issued by Glen Falls. Because of such determination, Combs was not eligible, according to the terms of the policy, for its underinsured motorist coverage for his injuries arising out of a single vehicle accident that occurred on January 29, 2002, involving a truck operated by Jimmy Dale Graham, in which Combs was a guest passenger.

In the GMAC case, Combs contends that the circuit court erred in determining as a matter of law that he was not, on January 29, 2002, a resident of the household of his biological mother, Leneice Combs, the named insured in an automobile insurance policy issued by GMAC. Because of such determination, Combs was not eligible, according to the terms of the policy, for its underinsured motorist coverage for his injuries arising out of the same January 29, 2002 automobile accident. Thus, Combs seeks coverage under the underinsured motorist coverage in both the GMAC and Glen Falls automobile insurance policies for alleged injuries in excess of the insurance policy limits paid by Jimmy Dale Graham's insurer.

Appellees, Glen Falls and GMAC, contend that the circuit court did not err in granting both of them summary judgment in their respective actions, Case Nos. 02-C-257 and 03-C-27. The Court has before it the petition for appeal filed by Johnny Combs, the briefs of the parties, and has heard oral argument from counsel for the Appellant and Appellees. We conclude that the Circuit Court of Wyoming County did not err in granting Glen Falls' motion for summary judgment in Case No. 02-C-257 and did not err in granting GMAC's motion for summary judgment in Case No. 03-C-27. We therefore affirm the December 18, 2003 order.

I. FACTS AND PROCEDURAL BACKGROUND

On January 29, 2002, the Appellant, Johnny Combs, was injured in a single vehicle accident while riding as a guest passenger in a truck operated by Jimmy Graham.³ Combs sustained various physical injuries in this accident, including permanent facial scarring and the loss of several teeth, and incurred approximately $18,928.47 in medical expenses. He settled with Mr. Graham's liability carrier for the $20,000 policy limits of its coverage. Additionally, he asserted underinsured motorist claims against GMAC and Glen Falls contending (1) that he was a resident of the household of his mother, Leneice Combs, at the time of the January 29, 2002 accident and, therefore, qualified for underinsured motorist coverage for his injuries under a policy of insurance issued by GMAC to his mother, the named insured; and (2) that he was also a "ward" or "foster child" of Billie Joe Smith and a resident of Mr. Smith's household (which was separate from that of his mother's household) and was actually residing therein at the time of the accident, thus also qualifying for underinsured motorist coverage under a policy of insurance issued by Glen Falls to Billie Joe Smith, the named insured.

A. The GMAC Policy

By its terms, Leneice Combs' GMAC policy required Appellant Combs to have been "a resident of [her] household" at the time of the accident in order to be included in its underinsured motorist coverage. Believing that Combs did not qualify as a resident of his mother's household, GMAC instituted a declaratory judgment action in the Circuit Court of Wyoming County seeking a declaration as to whether or not Appellant Combs qualified as an insured under Leneice Combs' insurance policy. Following the filing of a counter-claim by Appellant Combs, the filing of answers to both the original complaint and the counter-claim, and discovery, GMAC filed a motion for summary judgment, to which Appellant filed no response. The motion was granted by the court in an order entered on December 18, 2003, from which Combs appeals to this Court. In its order, the court found "that the facts presented do not support a finding that Johnny Combs was a resident of his mother's household."

B. The Glen Falls Policy

At the time of the accident at issue, Combs was twenty-two years old and was living with Billie Joe Smith at his home in Lynco, West Virginia.⁴ Billie Joe Smith was married to Leneice Combs, Appellant Combs' biological mother, from July 1967 until they divorced in July 1978. Thereafter, Leneice Combs married Clark Combs and Appellant was born of that marriage. Leneice and Clark Combs divorced in 1980, remarried and divorced again in 1983. After the second divorce, Leneice Combs and Billie Joe Smith reestablished their relationship, but did not re-marry.⁵ Billie Joe Smith apparently provided emotional and financial support to Appellant Combs and held him out as a son. Although Appellant Combs refers to Mr. Smith as "dad," there is no evidence on the record before this Court and no argument has been made, that Billie Joe Smith is Comb's biological father. Further, no argument has been made nor evidence produced that Mr. Smith ever legally adopted Combs or formally accepted legal responsibility for him via guardianship papers or otherwise.

On or about January 29, 2002, Glen Falls issued an automobile insurance policy, having a policy period of January 22, 2002 through January 22, 2003, to Billie Joe Smith. Appellant Combs was not a named driver or an additional insured under this policy. Nevertheless, Combs asserts a claim for underinsured motorist benefits under this policy for injuries sustained in the January 29, 2002 automobile accident arguing that Mr. Smith was his "father."

The Glen Falls policy defines "Covered Person" for the purposes of underinsured motorist coverage as:

a. You for the ownership, maintenance or use of any vehicle, except for occupying, or when struck by, a vehicle owned by you which is not insured for this coverage under this policy;

b. Any family member:

(1) Who does not own an automobile for the maintenance or use of any vehicle;

(2) Who owns an automobile but only for the use of an insured motor vehicle;

Except while occupying or when struck by, a vehicle owned by you or that person which is not insured for this coverage under this policy.

(Emphasis in original). The term "family member" is defined as:

9. Family Member means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child.

For the purposes of this definition, to be considered a resident of your household when evaluating coverage for a loss a person must have been actually residing in your household on the date the loss occurred. However, your:

a. Son;

b. Daughter;

c. Ward; or

d. Foster child In the United States military or away at school will be considered a resident of your household unless he or she has demonstrated an intent to reside elsewhere permanently.

On or about December 4, 2002, Glen Falls instituted a declaratory judgment action seeking a declaration that Combs' claim for underinsured motorists benefits was not covered under the terms of the policy issued to Billie Joe Smith. An amended complaint for declaratory relief was filed on or about April 9, 2003 seeking substantially the same relief. After discovery, Glen Falls filed a motion for summary judgment seeking a declaration that coverage did not exist under its policy because Appellant Combs was not a "family member" as defined by the policy terms. Following briefing by the parties, oral argument was held before the circuit court on October 3, 2003. By Order dated December 18, 2003, the circuit court granted Glen Falls' motion for summary judgment finding that Combs did not qualify as either a "ward" or "foster child" of Billie Joe Smith. The circuit court found "that the term `ward' implies a guardian-ward relationship created by legal process, such as that described in W. Va.Code § 44A-1-2," and "that West Virginia law does not support a finding that Johnny Combs qualifies as Billie Joe Smith's foster child." Appellant Combs now appeals the circuit court's ruling to this Court.

II. Standard of Review

This appeal arises from the entry of summary judgment in favor of two separate insurance companies finding that coverage does not exist for Appellant...