Strum v. Swanson

• Decision Date: 26 October 2007
• Docket Number: No. 33285.,33285.
• Parties: Stacey A. STRUM and Nicole A. Elliott, as Co-Administratrix of the Estate of Cheryl Ann Kettlewell, Deceased, Plaintiffs Below, Appellees v. Traci Marie SWANSON; State Farm Mutual Automobile Insurance Company, A Foreign Corporation; Allstate Indemnity Company, and Debbie Dalrymple and Stephen Kelley, doing Business as The Lounge, A Liquor Tavern in Friendly, Tyler County, West Virginia; Defendants Below, State Farm Mutual Automobile Insurance Company, a Foreign Corporation, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

653 S.E.2d 667

Stacey A. STRUM and Nicole A. Elliott, as Co-Administratrix of the Estate of Cheryl Ann Kettlewell, Deceased, Plaintiffs Below, Appellees v. Traci Marie SWANSON; State Farm Mutual Automobile Insurance Company, A Foreign Corporation; Allstate Indemnity Company, and Debbie Dalrymple and Stephen Kelley, doing Business as The Lounge, A Liquor Tavern in Friendly, Tyler County, West Virginia; Defendants Below State Farm Mutual Automobile Insurance Company, a Foreign Corporation, Defendant Below, Appellant.

No. 33285.

Supreme Court of Appeals of West Virginia.

Submitted September 11, 2007.

Decided October 26, 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 judgement, shall be reviewed de novo on appeal." Syl. Pt. 2, Riffe v. Home Finders Assoc., Inc., 205 W.Va. 216, 517 S.E.2d 313 (1999).

2. "A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

3. "`A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syl. Pt. 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

4. "Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

5. The West Virginia wrongful death statute, West Virginia Code § 55-7-5 (1931) (Repl.Vol.2000), does not support a cause of action seeking benefits through a claimant's personal UIM insurance policy, where that claimant is acting in his or her legal capacity as a personal representative of an estate and the decedent was not insured under the UIM policy at issue.

E. Kay Fuller, Christopher R. Moore, Martin & Seibert, L.C., Martinsburg, WV, and Michael G. Gallaway, Spilman, Thomas & Battle, P.L.L.C., Wheeling, WV, for the Appellant.

Christine Machel, William E. Watson, William E. Watson & Associates, Wellsburg, WV, for the Appellee.

Mychal Sommer Schulz, Jill Cranston Bentz, Ryan J. Aaron, Dinsmore & Shohl, L.L.P., Charleston, WV, for Amicus Curiae, West Virginia Insurance Federation.

ALBRIGHT, Justice.

This is an appeal by State Farm Mutual Automobile Insurance Company (hereinafter "State Farm") from an April 19, 2006, order of the Circuit Court of Tyler County granting summary judgment to the Appellees, Stacey A. Strum and Nicole A. Elliott, acting as co-administratrixes of the Estate of Cheryl Ann Kettlewell, in an underinsured motorist (hereinafter "UIM") coverage claim. The circuit court also denied State Farm's motion for summary judgment. Upon thorough review of the briefs, arguments of counsel, record, and applicable precedent, this Court reverses the decision of the lower court and remands this matter for entry of an order granting State Farm's motion for summary judgment and dismissing this case from the docket.

I. Factual and Procedural History

Ms. Cheryl Kettlewell, the mother of the Appellees, die d on November 25, 1999, in a single vehicle accident. At the time of the accident, Ms. Kettlewell was a passenger in a vehicle operated by Traci Marie Swanson. Ms. Swanson was intoxicated, lost control of the vehicle, and collided with a wall. The vehicle driven by Ms. Swanson provided liability policy limits of $20,000, which were paid to the Estate of Cheryl Kettlewell. The vehicle involved in the accident was not insured under the individual policies of either of the Appellees, and Ms. Kettlewell's automobile insurance policy did not include UIM coverage.

The Appellees are the two adult daughters of Ms. Kettlewell and serve as co-administratrixes of her estate. In that capacity, they initiated a wrongful death action and sought a declaration that UIM coverage on their own individual polices should provide recovery in the wrongful death action for their emotional distress. Ms. Kettlewell was not a named insured under either of the two policies maintained by the Appellees. Only Ms. Kettlewell and her minor daughter, Melinda, were residents of the Kettlewell household at the time of the accident.

Appellee Ms. Elliott maintained an insurance policy issued by the Appellant, State Farm, including $100,000 for UIM coverage.¹ Ms. Elliott's State Farm policy contained the following language:

[State Farm] will pay compensatory damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. The bodily injury must be sustained by an insured. The bodily injury or property damage must be caused by accident arising out of the operation, maintenance or use of an underinsured motor vehicle.

The circuit court granted the Appellees' motion for summary judgment, finding that the Appellees were entitled to collect damages under their individual UIM policies through the wrongful death statute and that the West Virginia UIM statute, West Virginia Code § 33-6-31(b) (1998) (Repl.Vol.2006), does not permit the limitation of damages to "bodily-injury-type damages."

State Farm appeals that decision, contending that the circuit court erred in holding that Ms. Elliott is entitled to collect emotional distress damages in her individual capacity in the wrongful death claim since civil actions instituted through the wrongful death statute can be pursued only in the capacity of a personal representative. State Farm also contends that even if the wrongful death statute would not prohibit recovery under these circumstances, the circuit court was incorrect in its conclusion that emotional distress damages were required under the specific language of Ms. Elliott's policy.

II. Standard of Review

This Court has consistently maintained that "[t]he 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 judgement, shall be reviewed de novo on appeal." Syl. Pt. 2, Riffe v. Home Finders Assoc., Inc., 205 W.Va. 216, 517 S.E.2d 313 (1999); see also Dairyland Ins. Co., v. Fox, 209 W.Va. 598, 550 S.E.2d 388 (2001). The Dairyland Court emphasized that "`[d]etermination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law.'" Id. at 601, 550 S.E.2d at 391 (quoting Murray v. State Farm Fire & Cas. Co., 203 W.Va. 477, 483, 509 S.E.2d 1, 7 (1998) (additional citations omitted)).

Syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), instructs that "[a] circuit court's entry of summary judgment is reviewed de novo." In syllabus point one of Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992), this Court stated that "`[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." This court has also explained that "[s]ummary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). With those standards of review as guidance, we address the substantive arguments presented in this matter.

III. Discussion

The fundamental issue in this case is whether an individual is entitled to pursue a claim under the West Virginia wrongful death statute, seeking benefits through that individual's personal UIM insurance policy, when that individual is acting in his or her legal capacity as a personal representative of an estate and the decedent was not an insured under the UIM policy at issue. The West Virginia wrongful death statute, West Virginia Code § 55-7-5 (1931) (Repl.Vol. 2000), provides as follows:

Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter. No action, however, shall be maintained by the personal representative of one who, not an infant, after injury, has compromised for such injury and accepted satisfaction therefor previous to his death. Any right of action which may hereafter accrue by reason of such injury done to the person of another shall survive the death of the wrongdoer, and may be enforced against the executor or administrator, either by reviving against such personal representative a suit which may have been brought against the wrongdoer himself in his lifetime, or by bringing an original suit against his personal representative after his death, whether or not the death of the wrongdoer occurred before or after the...