Wolfe v. Ross

• Decision Date: 07 May 2015
• Docket Number: No. 1048 WDA 2012,1048 WDA 2012
• Citation: 2015 PA Super 110,115 A.3d 880
• Parties: Theresa M. WOLFE, Administratrix of the Estate of Kevin T. Wolfe, Appellant v. Robert ROSS, Appellee v. State Farm Fire and Casualty Company, Appellee.
• Court: Pennsylvania Superior Court

115 A.3d 880

2015 PA Super 110

Theresa M. WOLFE, Administratrix of the Estate of Kevin T. Wolfe, Appellant

v.Robert ROSS, Appellee

v.State Farm Fire and Casualty Company, Appellee.

No. 1048 WDA 2012

Superior Court of Pennsylvania.

Argued Aug. 5, 2014.

Filed May 7, 2015.

James Cole, Pittsburgh, for appellant.

C. Leon Sherman, Pittsburgh, for State Farm, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN, OTT, WECHT, STABILE, and JENKINS, JJ.

Opinion

OPINION BY BOWES, J.:^*

Theresa M. Wolfe, Administratrix of the Estate of Kevin T. Wolfe, (“Administratrix”), appeals from the trial court's grant of summary judgment in favor of State Farm Fire and Casualty Company (“State Farm”) and its corresponding denial of her motion for summary judgment. The issue before us is whether the motor vehicle exclusion in Robert Ross's homeowner's policy with State Farm operates to preclude recovery on the facts herein. The trial court concluded that it did, based on this Court's decision in Wilcha v. Nationwide Mutual Fire Insurance Company, 887 A.2d 1254 (Pa.Super.2005). Administratrix alleges that the exclusion is ambiguous and inapplicable on the facts herein, and that Wilcha should be limited to negligent entrustment or supervision cases. She urges us to adopt and apply the independent concurrent cause rule announced in State Farm Mutual Automobile Insurance Company v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973), as the law of Pennsylvania. After careful review, we affirm.

Administratrix commenced this civil action for wrongful death and survival against Robert Ross. She alleged the following. In late June 2002, Mr. Ross was the host of a graduation party at his residence where alcoholic beverages were furnished or made available to the guests, including her decedent, nineteen-year-old Kevin. Kevin became impaired “in his judgment, perception, coordination and responses to the point where he was unable to operate any sort of vehicle safely.” Complaint, ¶ 7. “As a direct and proximate result of the impairment caused by the alcohol,” Kevin left the party on a dirt bike owned by Mr. Ross's son Justin, “lost control of the vehicle, struck a fixed object and suffered fatal injuries in the collision.” Complaint, ¶ 8. All allegations against Mr. Ross sounded in negligence and arose from the furnishing of alcohol to the minor.

State Farm, Mr. Ross's homeowner's carrier, refused to defend the claim and denied coverage based on the policy's exclusion for injuries arising out of the maintenance and use of a motor vehicle owned by an insured.¹ Mr. Ross filed a pro se answer to the complaint in which he denied that he furnished or provided alcoholic beverages to Kevin. In new matter, he averred that, to the extent Kevin consumed alcoholic beverages, he was contributorily negligent, and his own negligence was the proximate cause of his death.

Prior to trial, the parties agreed to enter a consent judgment against Mr. Ross for $200,000. By terms of the agreement, Mr. Ross assigned to Administratrix all of his rights under his homeowner's policy with State Farm, including the right to sue the insurer for breach of contract and bad faith. In addition, Mr. Ross agreed to cooperate with Administratrix and Administratrix agreed to forego execution against any of Mr. Ross's assets and to accept any verdict or settlement from any proceeding against State Farm in full satisfaction of the judgment. The consent judgment was entered on March 8, 2010.

On December 3, 2010, Administratrix proceeded to attempt to collect the judgment by garnishing the proceeds of Mr. Ross's State Farm homeowner's policy, which had liability limits of $100,000. State Farm and Administratrix stipulated to certain facts. The parties agreed that, “[t]he plaintiff's decedent, while operating a motor vehicle, struck a fixed object off the insured location, and suffered fatal injuries in the collision.” Joint Stipulation, ¶ 3. “[Administratrix] contends that coverage is afforded under the terms of the State Farm policy, because [her] decedent died as a direct and proximate result of the impairment caused by the alcoholic beverages allegedly furnished and/or made available to him at a graduation party for Ross' son, which was hosted by Ross, which was covered under the State Farm policy, the policy limits of which are $100,000.00.” Id. at ¶ 12. “Ross denied that alcohol was provided to the guests, and State Farm contends that even if furnishing alcohol otherwise were covered, the fact that the decedent's death arose out of the operation of a motor vehicle triggers an exclusion which precludes coverage.” Id. at ¶ 13. Finally, the parties stipulated that “this case is now ripe for a decision as to whether there is coverage for Ross under the State Farm policy for the claims made in the underlying lawsuit [.]”² Id. at ¶ 16.

Both parties filed motions for summary judgment. The trial court entered summary judgment in favor of State Farm, and denied same as to Administratrix. Administratrix appealed and filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and the trial court issued its Pa.R.A.P. 1925(a) opinion.

Administratrix originally presented two issues:

A. Whether the trial court erred in failing to find that the motor vehicle exclusion in a homeowner's insurance policy was ambiguous in that it did not state whether the injury must be proximately caused by use of the motor vehicle or simply causally connected with use of the motor vehicle.

B. Whether the trial court erred in failing to find that the motor vehicle exclusion in a homeowner's insurance policy was inapplicable to claims where the motor vehicle was operated by the victim and where the only claim of negligence against the insured was that he had negligently furnished alcoholic beverages to the underage operator of the vehicle.

Appellant's original brief, at 4. In her supplemental brief, Administratrix focuses on distinguishing Wilcha, which involved claims for negligent entrustment and supervision, from the negligent furnishing of alcohol to a minor claim herein. She also urges us to apply the independent concurrent causation rule to find coverage on the instant facts. Appellant's supplemental brief at 3.

In reviewing the grant of summary judgment, we “may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion.”Murphy v. Duquesne University, 565 Pa. 571, 777 A.2d 418, 429 (2001) (citations omitted). “The interpretation of an insurance policy is a question of law that we will review de novo. ” Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 589 Pa. 317, 908 A.2d 888, 897 (2006). The following principles inform our review. “Our purpose in interpreting insurance contracts is to ascertain the intent of the parties as manifested by the terms used in the written insurance policy.” Babcock & Wilcox Co. v. Am. Nuclear Insurers & Mut. Atomic Energy Liab. Underwriters, 76 A.3d 1 (Pa.Super.2013). Where the contract language is clear and unambiguous, we must give effect to that language unless it violates a clearly expressed public policy. Adamitis v. Erie Ins. Exch., 54 A.3d 371 (Pa.Super.2012). Alternatively, when a policy provision is ambiguous, it is to be construed in favor of the insured and against the insurer. Penn–America Ins. Co. v. Peccadillos, Inc., 27 A.3d 259, 265 (Pa.Super.2011) (en banc ). A policy provision is ambiguous only when it is “reasonably susceptible of different constructions and capable of being understood in more than one sense” when applied to a particular set of facts. Allstate Fire and Casualty Insurance Co. v. Hymes, 29 A.3d 1169, 1172 (Pa.Super.2011).

Herein, State Farm based its defense on a policy exclusion. Thus, the burden was on the insurer to establish its application. Donegal Mut. Ins. Co. v. Baumhammers, 595 Pa. 147, 938 A.2d 286, 290 (2007). The homeowner's policy in question provides that:

COVERAGE L—LIABILITY

If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:

1. pay up to our limit of liability for the damages for which the insured is legally liable; and

Homeowner's policy, at 15 (emphasis in original). An “occurrence” is defined as:

7. “Occurrence,” when used in Section II of this policy, [Exclusions] means an accident, including exposure to conditions, which results in:

a. bodily injury; or

b. property damage;

during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence.”

Homeowner's policy, at 2.

The exclusion at issue provides:

Coverage L [liability] and Coverage M [medical payments] do not apply to

...

e. bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of:

...

(2) a motor vehicle owned or operated by or rented or loaned to any insured, or

Homeowner's policy, at 16 (emphasis in original). An ATV “owned by an insured and designed or used for recreational or utility purposes off public roads,” is a “motor vehicle” for purposes of liability coverage under the policy “while off an insured location. ” Homeowner's policy, at 2 (emphasis in original).³

The trial court held that the policy provision was not ambiguous on the facts herein and upheld the plain meaning. Administratrix assigns this as error and directs our attention to Eichelberger v. Warner, 290 Pa.Super. 269, 434 A.2d 747 (1981), where identical language was held to be ambiguous because it did not define whether it excluded coverage for injuries proximately caused by the motor vehicle or causally connected with the motor vehicle. Since that finding of ambiguity rested upon very different facts, they are pertinent to our analysis.

In Eichelberger, the decedent was the driver of a motor vehicle that ceased operating on a highway, presumably due to a...