Parsley v. General Motors Acceptance Corp.

Decision Date29 July 1981
Docket NumberNo. 14314,14314
Citation280 S.E.2d 703,167 W.Va. 866
Parties, 31 UCC Rep.Serv. 1614 Chris A. PARSLEY v. GENERAL MOTORS ACCEPTANCE CORPORATION, a Corporation; Dairyland InsuranceCompany, a Corporation; Tag Galyean Chevrolet, Inc., etc.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken.

2. Where the material facts established by the pleadings and other matters before the trial court are undisputed and only one inference may be drawn from them by reasonable minds, summary judgment is proper. Pauley, Curry & Thaxton, James M. Sturgeon, Jr., Everette F. Thaxton and Thomas H. Vanderford, IV, Charleston, for Parsley.

Jackson, Kelly, Holt & O'Farrell, Thornton G. Berry, Jr., John M. Slack, III, Charleston, for General Motors Acceptance Corp.

Andrew J. Goodwin, Charleston, for Dairyland Ins.

Kay, Casto & Chaney, Michael T. Chaney, Charleston, for Tag Galyean Chev.

McGRAW, Justice:

This case is before this Court upon the petition of Chris A. Parsley for a writ of appeal, error and supersedeas from final orders of the Circuit Court of Kanawha County granting the motions of General Motors Acceptance Corporation, Dairyland Insurance Company, and Tag Galyean Chevrolet, Inc., for summary judgment. The appellant's cause of action was founded in tort. He alleged in his complaint that the negligence of the appellees caused him to be without insurance when his new car was totally destroyed in an accident. Because we agree with the trial court that none of the appellees owed a duty to the appellant to see that his car was insured, we affirm.

The material facts of this case are not in dispute. On May 31, 1975, the appellant purchased a 1975 Chevrolet Camaro from appellee Tag Galyean Chevrolet, Inc. As consideration for the Camaro the appellant traded in a 1963 Ford Thunderbird, paid fifty dollars cash, and executed an installment sales contract. The contract was subsequently assigned to General Motors Acceptance Corporation (GMAC) which financed the appellant's purchase. Creditor life and disability insurance was provided for in the contract the appellant signed, and was included in the financing, but physical damage (or collision) insurance required by GMAC for approval of the loan, was not. At the time of the sale an attempt was made by the appellant and Mr. Fred Schanz, Tag Galyean's customer service manager, to secure collision insurance from Dairyland Insurance Company, the company which had previously insured the appellant's 1963 Thunderbird. However, because it was Saturday, the office of Dairyland's local agent was closed, and the attempt was unsuccessful. Nevertheless, Mr. Schanz had the appellant sign an "Agreement to Provide Accidental Physical Damage Insurance" which represented to GMAC that arrangements had been made for collision insurance. Additionally, the appellant also signed a form which requested Dairyland Insurance Company to name GMAC as "loss payee" on the collision policy and further requested of Dairyland a provision for ten day notice to GMAC in the event of cancellation of the policy. The appellant claims he did not read any of these forms before signing them. Before leaving with the car that day, the appellant assured Mr. Schanz that he would secure collision coverage on the Camaro as soon as possible.

On either June 6th, or 20th, 1975, the appellant transferred the Dairyland policy on his 1963 Thunderbird to his new Camaro, and included collision coverage. The appellant subsequently received numerous computer card billings from Dairyland. Most of the bills received were erroneous in some manner, and the appellant sought the assistance of Mr. Schanz to get his insurance bills straightened out. Mr. Schanz recommended that the appellant contact his Dairyland agent in person to correct the mistakes.

The Dairyland policy which the appellant had transferred to his new car expired on July 9, 1975. Notice of the expiration was not sent to GMAC as had been requested. Sometime prior to the expiration date the appellant received a bill for the premium required to insure his Camaro for a three month period beginning July 9th. The appellant was unable to afford the premium, and enlisted the aid of Mr. Schanz to see if he could get cheaper insurance. Initially, Mr. Schanz told the appellant that he might be able to get cheaper collision insurance. Mr. Schanz called several insurance companies and found that the appellant could get this insurance. According to the deposition of Mr. Schanz, he had a conversation with the appellant on Tuesday, July 18, 1975, in which the appellant agreed to meet with him on the following Friday and to pay $80 towards the insurance which Mr. Schanz was going to obtain for the appellant. The appellant failed to keep this appointment. At eleven or twelve p. m. that same Friday the appellant was involved in a single car accident in which his new Camaro was totally destroyed.

The appellant knew that Mr. Schanz had not procured insurance for him at the time of the accident. He apparently believed he had a thirty-day grace period to pay the premium on his Dairyland policy due July 9, 1975, despite the fact that each of the billings he received from Dairyland stated at the bottom: "NO GRACE PERIOD! If premium is not received in office by due date your coverage expires." Mr. Schanz was unsure whether the appellant had insurance at the time of the accident. In their conversation on Tuesday, July 18th, the appellant told Mr. Schanz that Dairyland was going to cancel his insurance. When Mr. Schanz asked the appellant if he had insurance at that time, the appellant replied that he didn't know. The depositions of both the appellant and Mr. Schanz reveal that Mr. Schanz told the appellant that if he didn't have insurance he shouldn't be driving the car, and that he offered to garage the Camaro for the appellant.

On October 22, 1975, the appellant instituted an action in the Circuit Court of Kanawha County alleging that it was through the negligence of the appellees, General Motors Acceptance Corporation, Dairyland Insurance Company, and Tag Galyean Chevrolet Inc., that he was without insurance at the time of his accident. All of the appellees answered the complaint with denials of liability. Additionally, GMAC counterclaimed for the balance due on its conditional sales contract on the basis that the appellant was in default of payments and had failed to keep the Camaro continuously insured as required by their written agreement. The appellant answered this counterclaim with a general denial of liability and noted to the court that payments on the car were being made into an escrow account.

After discovery by means of interrogatories, depositions and affidavits, all of the appellees moved for summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure on the grounds that there were no genuine issues of material fact and that none of the appellees had a duty to provide the appellant with collision insurance. Furthermore, appellee GMAC also moved for summary judgment on its counterclaim. The circuit court granted all of the appellees' motions for summary judgment, ruling as a matter of law that none of the appellees had a legal duty to provide the appellant with collision insurance, and that by virtue of the appellant's default, GMAC...

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