Keefer v. Ferrell

• Decision Date: 08 November 2007
• Docket Number: No. 33310.,33310.
• Citation: 655 S.E.2d 94
• Parties: Collett L. KEEFER, II, Plaintiff Below, Appellee, v. Angela Mae FERRELL, a/k/a Angela Mae White; and Kenneth D. Hess, Defendants Below, Appellees, Farm Family Casualty Insurance Company, Appellant.
• Court: West Virginia Supreme Court

655 S.E.2d 94

Collett L. KEEFER, II, Plaintiff Below, Appellee, v. Angela Mae FERRELL, a/k/a Angela Mae White; and Kenneth D. Hess, Defendants Below, Appellees Farm Family Casualty Insurance Company, Appellant.

No. 33310.

Supreme Court of Appeals of West Virginia.

Submitted October 24, 2007.

Decided November 8, 2007.

Concurring Opinion of Justice Starcher December 6, 2007.

Dissenting Opinion of Justice Benjamin December 19, 2007.

Syllabus by the Court

1. "The interpretation of an insurance contract, including the question of whether the contract is ambiguous, is a legal determination that, like a lower court's grant of summary judgment, shall be reviewed de novo on appeal." Syllabus point 2, Riffe v. Home Finders Associates, Inc., 205 W.Va. 216, 517 S.E.2d 313 (1999).

2. "Determination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law." Syllabus point 1, Tennant v. Smallwood, 211 W.Va. 703, 568 S.E.2d 10 (2002).

3. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

4. "Where provisions in an insurance policy are plain and unambiguous and where such provisions are not contrary to a statute, regulation, or public policy, the provisions will be applied and not construed." Syllabus point 2, Shamblin v. Nationwide Mutual Insurance Co., 175 W.Va. 337, 332 S.E.2d 639 (1985).

5. "Language in an insurance policy should be given its plain, ordinary meaning." Syllabus point 1, Soliva v. Shand, Morahan & Co., Inc., 176 W.Va. 430, 345 S.E.2d 33 (1986), abrogated on other grounds, National Mutual Insurance Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987), modified on other grounds, Potesta v. United States Fidelity & Guaranty Co., 202 W.Va. 308, 504 S.E.2d 135 (1998).

6. "Under W. Va.Code, 33-6-31(c) [1995], insurers must provide uninsured motorist coverage, and make available underinsured motorist coverage, for injuries causally connected to the use of the vehicle, and foreseeably identifiable with the normal use of the vehicle." Syllabus point 4, Adkins v. Meador, 201 W.Va. 148, 494 S.E.2d 915 (1997).

7. "When the `use' of a vehicle is in question for insurance purposes due to the separation of an individual from a vehicle at the time of an accident, the court must determine whether there is a causal connection between the motor vehicle and the injury. In making that determination, the court may consider, but is not limited by, the following factors: a) whether the individual was in reasonably close proximity to the insured vehicle at the time of the accident; b) whether the individual was vehicle oriented as opposed to highway or sidewalk oriented; c) whether the individual had relinquished control of the vehicle; and d) whether the individual was engaged in a transaction reasonably related to the use of the vehicle at the time of the accident." Syllabus point 2, Cleaver v. Big Arm Bar & Grill, Inc., 202 W.Va. 122, 502 S.E.2d 438 (1998).

8. "Under W. Va.Code, 33-6-31(c) [1995], whether or not an injury arose from the `use' of a motor vehicle depends upon the factual context of each case." Syllabus point 5, Adkins v. Meador, 201 W.Va. 148, 494 S.E.2d 915 (1997).

Lou Ann S. Cyrus, Heather B. Lord, Shuman, McCuskey & Slicer, PLLC, Charleston, for the Appellant, Farm Family Casualty Insurance Company.

PER CURIAM:

The appellant herein, Farm Family Casualty Insurance Company (hereinafter "Farm Family"), appeals from an order entered April 27, 2006, by the Circuit Court of Mason County. By that order, the circuit court granted summary judgment in favor of the plaintiff below and appellee herein, Collett L. Keefer, II (hereinafter "Mr. Keefer"),¹ ruling that the Farm Family policy of motor vehicle insurance at issue in these proceedings provided uninsured motorist (hereinafter "UM") coverage to Mr. Keefer. On appeal to this Court, Farm Family argues that the circuit court erred by finding that the Farm Family policy provided coverage for the underlying accident. Upon a review of the parties' arguments, the pertinent authorities, and the record designated for appellate consideration, we affirm the decision of the Mason County Circuit Court.

I. FACTUAL AND PROCEDURAL HISTORY

The facts of this case are not disputed by the parties. On September 2, 2002, at approximately 8:20 p.m., Mr. Keefer was operating a 1972 Allis-Chalmers 180 farm tractor on State Route 87 in Leon, West Virginia, when he was struck from behind by an automobile being driven by one of the defendants below and appellees herein, Angela Mae Ferrell (hereinafter "Ms. Ferrell"). Mr. Keefer stated that he was operating the tractor on State Route 87 in order to load the tractor onto a trailer that was attached to a 2002 Dodge truck; the tractor, the trailer, and the Dodge truck were all owned by another of the defendants below and appellees herein, Kenneth D. Hess (hereinafter "Mr. Hess"). Mr. Hess's truck was insured by a policy of motor vehicle insurance issued to Mr. Hess by Farm Family.² At the time of the accident, Mr. Keefer and the tractor were approaching, but had not yet reached, the truck and trailer, both of which were parked in a driveway adjacent to State Route 87; in preparation for the anticipated tractor loading, the trailer had been hitched to the truck, and the trailer's loading ramps had been dropped to the ground. Mr. Keefer and the tractor were approximately twenty-five to thirty feet away from the truck and trailer when Mr. Keefer slowed down to turn into the driveway and the collision with Ms. Ferrell's vehicle occurred. The accident report completed by the police officer responding to the scene placed the tractor at the entrance to the driveway showing that it stopped immediately inside the driveway and was no longer on State Route 87.

On September 2, 2004, Mr. Keefer filed a civil action against Ms. Ferrell and Mr. Hess to recover for the injuries he sustained in the above-described accident. In his complaint, Mr. Keefer alleged that Ms. Ferrell was an uninsured motorist and sought recovery under the UM provisions of Mr. Hess's insurance policy³ with Farm Family. Mr. Keefer also alleged that Mr. Hess had been negligent in his direction of Mr. Keefer's efforts to load his tractor onto the trailer.⁴ With respect to his claim for UM benefits, Mr. Keefer asserts that he is entitled to the UM coverage provided by Mr. Hess's business auto policy. On December 14, 2004, Farm Family filed "Farm Family's Notice of Special Appearance and Counterclaim for Declaratory Judgment" to request the circuit court to determine whether Mr. Hess's Farm Family policy provided UM coverage to Mr. Keefer.

The policy of motor vehicle insurance at issue herein is the "Amended New (Business Auto) Policy" issued to Mr. Hess by Farm Family with coverage dates from November 15, 2001, to November 15, 2002. The named insureds on this policy are Kenneth D. Hess and Bert Hess, with the insured business designated as "individual" and the name of the insured business identified as "farmer." The persons listed as "drivers" on the policy's declarations page are Kenneth Dean Hess, Bert C. Hess, and Collett L. Keefer, II; the covered motor vehicles are the 2002 Dodge truck, discussed above, and a 1990 GMC truck.

Of particular relevance to Mr. Keefer's claims, the Farm Family policy contains the following definitions and coverage terms applicable to the UM coverage provided thereunder:

"Insured" [means] "any person or organization qualifying as an insured in the Who Is An Insured provision of the applicable coverage."

. . .

WHO IS AN INSURED [under the UM endorsement to the policy]

1. An individual, then the following are "insureds":

a. The named insured and any "family members".

b. Anyone else "occupying" or using a covered "auto" or temporary substitute for a covered "auto". The covered "auto" must be out of service because of its breakdown, repair, servicing, "loss" or destruction.

c. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured".

Additionally, the policy defines the term "occupying" as "in, upon, getting in, on, out or off."

During the course of the proceedings below, Farm Family moved for summary judgment. By order entered April 27, 2006, the circuit court ruled as follows:

As noted by the West Virginia Supreme Court of Appeals in Cleaver v. Big Arm Bar & Grill, Inc., 202 W.Va. 122 (1998), "When . . . the `use' of a vehicle is a question for insurance purposes due to the separation of an individual from a vehicle at the time of an accident, the court must determine whether there is a causal connection between the motor vehicle and the injury." Additionally, the [']causal connection must be "more than incidental, fortuitous, or but for.[']" See Baber v. Fortner [by Poe], 186 W.Va. 413, 417 (1991); Nationwide Mutual Insurance Co. v. Shumate, 63 F.Supp.2d 745[ (S.D.W.Va.1999)]. Essentially, the injury must be foreseeably identifiable with the normal use of the vehicle. Id.

The evidence before the Court in this matter demonstrates that a normal use of the insured vehicle, the 1992 Dodge truck, was to load and haul the tractor involved in this accident. In fact, the testimony of both the Plaintiff [Mr. Keefer] and Mr. Hess at their depositions revealed that their typical pattern was for Mr. Hess to drop the ramps to the trailer, attached to the truck, and that the Plaintiff would then load the tractor onto the attached trailer. In this matter that is precisely the course of action that was taking place as the Plaintiff was struck by the uninsured motorist [Ms. Ferrell]. Therefore, applying the rationale from Baber and Cleaver, it is clear that this was the foreseeable result of a normal use of this vehicle, and, therefore,...