Maryland Cas. Co. v. Martinez

• Decision Date: 18 June 1991
• Docket Number: Nos. WD,s. WD
• Citation: 812 S.W.2d 876
• Parties: The MARYLAND CASUALTY COMPANY, Respondent, v. B. Jeannie MARTINEZ, et al., Defendant, and Jose R. Martinez, Appellant, and Delia Colston, et al., Appellant, and Royal Insurance Company, Appellant. 43318, WD 43319 and WD 43340.
• Court: Missouri Court of Appeals

Page 876

812 S.W.2d 876

The MARYLAND CASUALTY COMPANY, Respondent, v. B. Jeannie MARTINEZ, et al., Defendant and Jose R. Martinez, Appellant and Delia Colston, et al., Appellant and Royal Insurance Company, Appellant.

Nos. WD 43318, WD 43319 and WD 43340.

Missouri Court of Appeals Western District.

June 18, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 30, 1991.

Application to Transfer Denied Sept. 10, 1991.

W. Stephen Nixon, Ahmann, Stewart & Nixon, P.C., Independence, for appellant Colston, et al.

Paul Hasty, Jr. and Norman I. Reichel, Wallace, Saunders, Austin, Brown and Enochs, Chtd., for appellant Royal Ins. Co.

Justine E. Del Muro, Popham, Conway, Sweeny, Fremont, & Bundschu, P.C., for appellant Martinez.

Larry J. Tyrl, James, Millert, Houdek, Tyrl & Sommers, Kansas City, for Maryland Cas. Co.

Before TURNAGE, P.J., and LOWENSTEIN and BRECKENRIDGE, JJ.

BRECKENRIDGE, Judge.

This is a consolidated appeal arising out of a declaratory judgment action filed by Respondent Maryland Casualty Company, seeking a declaration as to certain rights and obligations under an automobile liability insurance policy issued by the insurance Appellants are: Defendant Jose Ramon Martinez, who is also defendant in the underlying wrongful death case; defendants Delia C. Colston, Kathryn L. Collins and Helen L. Linson, who are plaintiffs in the underlying wrongful death case; and intervenor Royal Globe Insurance Company.

company. Specifically, Respondent Maryland Casualty Company (hereinafter "Maryland Casualty") sought a declaration that it had no obligation to defend and there was no insurance coverage for damages in a wrongful death action arising out of an automobile accident involving an automobile insured under a policy of insurance issued by Maryland Casualty to Silvan F. Goeser. The automobile accident occurred after Silvan F. Goeser's death and prior to the appointment of a personal representative to administer his estate. Motion for Summary Judgment was filed by Maryland Casualty and answers thereto. A hearing was held on the matter and afterward an Order for Summary Judgment was issued in favor of Maryland Casualty as there were no genuine issues of material fact to be decided.

Affirmed.

Silvan F. and Sara Goeser were husband and wife and lived in Independence, Missouri. Due to their advanced age and ill health, they had a full-time caretaker living with them in their home, Defendant B. Jeannie Martinez. Other members of the Martinez family also resided with the Goesers, one of whom was Appellant Jose Ramon Martinez, B. Jeannie Martinez's brother-in-law.

Maryland Casualty issued an automobile liability insurance policy insuring a 1979 Chevrolet pickup truck owned by the Goesers. The policy was issued for the period July 25, 1987, to January 25, 1988. The named insured on the insurance policy was Silvan Goeser. Silvan Goeser died on September 20, 1987, his wife having predeceased him on June 6, 1987. At the time of Silvan F. Goeser's death Bishop R.W. Pearson, a friend of the Goesers and a bishop with the Reorganized Church of Jesus Christ of Latter Day Saints, held a durable power of attorney for Silvan F. Goeser. Defendant B. Jeannie Martinez also held a durable power of attorney for Silvan F. Goeser.

During the time Bishop R.W. Pearson was making funeral arrangements for Silvan F. Goeser, a question arose as to whether Bishop R.W. Pearson or B. Jeannie Martinez was the named personal representative of Silvan F. Goeser's estate. It was later determined, however, that Bishop R.W. Pearson was named as personal representative in Silvan F. Goeser's Last Will and Testament. On December 23, 1987, Bishop Pearson filed an Application for Letters Testamentary and Application for Letters of Administration With Will Annexed. On December 30, 1987, Letters Testamentary were issued to Bishop Pearson, authorizing him to act as the personal representative of Silvan F. Goeser.

The Martinez family continued to live at the Goeser residence after the death of Silvan F. Goeser. On October 18, 1987, the 1979 Chevrolet pickup truck, owned prior to his death by Silvan Goeser, was involved in an accident in Independence, Missouri. Eva Mellore, a passenger in the other vehicle involved in the accident, sustained injuries and subsequently died. The 1979 Chevrolet pickup truck was being operated at the time of the accident by Appellant Jose Ramon Martinez.

A wrongful death action styled Delia C. Colston, et al. v. Jose Ramon Martinez, et al., Case No. CV88-13231, was filed by Appellants Delia C. Colston, Kathryn L. Collins and Helen L. Linson, the surviving sisters of Eva Mellore. In his Answer to the wrongful death petition filed by Appellants Delia C. Colston, Kathryn L. Collins and Helen L. Linson, Jose Ramon Martinez judicially admitted that at the time of the accident on October 18, 1987, he was operating the 1979 Chevrolet pickup truck without permission or authorization, and contrary to the express instructions and directions he had been given concerning the operation of the vehicle. He judicially admitted he "stole" the truck and went "joyriding".

The parties to the declaratory judgment action are as follows: Plaintiff The Maryland Restoration Trail Foundation, Inc., and the Reorganized Church of Jesus Christ of Latter Day Saints were beneficiaries under the last will and testament of Silvan F. Goeser. Royal Globe Insurance Company has issued a general liability policy providing insurance coverage to the Reorganized Church of Jesus Christ of Latter Day Saints and the Restoration Trial Foundation, Inc., and thus intervened in the declaratory judgment action, seeking the determination that its policy of insurance was secondary to the policy of Maryland Casualty.

Casualty Company; Defendants Delia C. Colston, Kathryn L. Collins and Helen L. Linson, sisters of the decedent Eva Mallore and plaintiff with wrongful death action; Bishop R.W. Pearson, personal representative of the estate of Silvan F. Goeser (although he answered and appeared during the declaratory judgment action, he has not appealed the trial court's order granting summary judgment); Defendants Restoration Trial Foundation, Inc., and the Reorganized Church of Jesus Christ of Latter Day Saints are named as defendants in the wrongful death action (neither organization has appealed the order granting summary judgment); Defendants B. Jeannie Martinez; her husband Jesus Martinez; her brother-in-law Jose Ramon Martinez; Chriqui Haim, a passenger in the Goeser vehicle; Paul D. Arend, operator of the vehicle in which Eva Mellore was a passenger; and Agnes R. Shirk, also a passenger in the Arend vehicle; who were all included as defendants in the declaratory judgment action in the event that they claim any rights under the Maryland Casualty policy.

Regarding the underlying wrongful death action, Defendants Bishop R.W. Pearson, Restoration Trail Foundation, Inc., and the Reorganized Church of Jesus Christ of Latter Day Saints all filed separate motions to dismiss which were granted. That court concluded that Bishop R.W. Pearson had no legal duty to the plaintiffs (Appellants Delia C. Colston, Katherine Collins, and Helen Linson) until Bishop Pearson initiated probate proceedings on December 30, 1987. The same rationale was applied by that court regarding the two above-mentioned defendant organizations.

The trial court issued its Order granting Summary Judgment concluding that Maryland Casualty held no obligation to defend or indemnify in any lawsuit arising out of the automobile accident involving Jose Ramon Martinez and there were no genuine issues of material fact in existence such that Maryland Casualty could be held liable in this matter. This timely appeal from the Order of Summary Judgment in favor of Maryland Casualty followed.

When reviewing a ruling on a motion for summary judgment an appellate court must scrutinize the record in the light most favorable to the party against whom the motion was filed, according to that party all reasonable inferences which may be drawn from the evidence. Gast v. Ebert, 739 S.W.2d 545, 546 (Mo. banc 1987). [citations omitted]. Summary judgment is a drastic remedy and is inappropriate unless the prevailing party has shown that he is entitled to judgment as a matter of law. Id. The burden is on the party moving for summary judgment to demonstrate that there is no genuine issue of fact. Id. A genuine issue of fact exists when there is the slightest doubt about a fact. Id. Keeping these well established principles firmly in mind, this court now turns to points raised on this appeal.

To ascertain whether or not coverage applies for this accident this court first turns to the pertinent policy provisions dealing with the definitions of covered automobile, the insuring agreement, the definition of insured under the policy and the general provision of the insurance policy relating to the transfer of an insured's interest in the policy. These provisions are as follows:

DEFINITIONS

J. "Your covered auto" means:

1. Any vehicle shown in the Declaration.

INSURING AGREEMENT

A. We will pay damages for "bodily injury" or "property damage" for which any "insured"...