Opinion
NO. 2011-CA-001045-MR
03-15-2013
METROPOLITAN DIRECT PROPERTY & CASUALTY INSURANCE COMPANY APPELLANT v. ANGELIA MOORE APPELLEE
BRIEF FOR APPELLANT: David K. Barnes Christine D. Campbell Louisville, Kentucky BRIEF FOR APPELLEE: John F. Vincent Ashland, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 09-CI-00894
ORDER DENYING MOTION TO DISMISS APPEAL
AND
OPINION
VACATING AND REMANDING
BEFORE: COMBS, KELLER, AND LAMBERT, JUDGES. COMBS, JUDGE: Metropolitan Direct Property and Casualty Insurance Company brings this appeal from the April 14, 2011, order of the Greenup Circuit Court holding that its automobile insurance policy provided coverage to Lynn-Taylor Howell ("Howell"). Howell was operating a motor vehicle owned by another person on January 25, 2009, when an accident occurred. Since Howell was not entitled to judgment as a matter of law, we vacate and remand for further proceedings.
On August 18, 2008, Metropolitan Direct issued an automobile insurance policy to Terry and Kyra Howell of Flatwoods, Kentucky, the named insureds. Four drivers, including Lynn-Taylor Howell and Terry Howell's daughter, were listed on the policy. Under the terms of the policy, five vehicles were insured: a 1997 Ford Explorer; a 1987 Toyota Xtracab; a 2006 GMC Envoy; a 2004 Chrysler Crossfire; and a 1987 Ford F150. The policy contained several terms, conditions, and exclusions that are relevant to this appeal. At this juncture, we need only refer generally to the policy's coverage provisions which applied to a "non-owned automobile"; i.e., "an automobile which is not owned by, furnished to, or made available for regular use to you or any resident in your household."
On January 25, 2009, while the Metropolitan Direct policy was in effect, Howell and appellee, Angelia Moore ("Moore"), were involved in a motor vehicle accident. Howell, an eighteen-year-old high school student, was driving a 1999 Chevrolet Silverado which was actually owned by Candace Gillum, the mother of her boyfriend. Gillum had given her permission to drive her vehicle, which was insured by Kentucky Farm Bureau.
On November 17, 2009, Moore filed a personal injury action against Howell in Greenup Circuit Court. Kentucky Farm Bureau provided a defense to Howell and eventually tendered the limits of its liability policy. The damages allegedly suffered by Moore as a result of the accident exceeded these policy limits.
On August 23, 2010, pursuant to rights established under its policy, Metropolitan Direct undertook an examination under oath of Howell in the presence of her counsel. A few days later, Moore's counsel took Howell's deposition. Metropolitan Direct did not participate in that deposition since it was not a party to the personal injury action filed by Moore against Howell.
On October 8, 2010, Moore filed a motion seeking leave to file an amended complaint. To the personal injury action against Howell, Moore hoped to add a separate petition for declaration of rights against Metropolitan Direct. The motion was granted, and Moore's amended complaint was deemed filed as of October 21, 2010.
In response to the amended complaint, Metropolitan Direct filed an answer and a separate counterclaim and cross-claim for declaratory judgment. Metropolitan Direct asserted that its policy should not provide coverage to Howell for her accident because: (1) she was driving a vehicle that was not scheduled under its policy; (2) she was not a resident of the household of its insured, Terry Howell; and (3) she was driving a vehicle that was furnished to or made available to her for her regular use.
On January 11, 2011, Moore filed a motion seeking the trial court's intervention in a proposed settlement. In part, the agreed order provided that Kentucky Farm Bureau would be a party to the action without the need for further pleading and that the personal injury action would be stayed pending resolution of the issue of Metropolitan Direct's liability coverage.
On February 7, 2011, Moore filed a motion for summary judgment with respect to Metropolitan Direct's obligations under the policy. In her motion, she contended that Howell was entitled to coverage under the policy while driving the Silverado because Howell was a resident of Terry Howell's household on the date of the accident, and she (Howell) was driving a "non-owned automobile." Moore argued that Gillum's Silverado had not been made available to Howell for her "regular use."
On March 2, 2011, Metropolitan Direct filed a cross-motion for summary judgment. It contended that Howell was not entitled to coverage under its policy.
The trial court's order and judgment in favor of Moore were entered on April 14, 2011. From the record, the court determined as a matter of law that Howell was a resident of Terry Howell's household on the day of the accident and that Howell did not make regular use of the Silverado. Consequently, the court concluded that Terry Howell's Metropolitan Direct policy provided coverage.
On April 26, 2011, Metropolitan Direct filed a motion for reconsideration and for amendment under the provisions of Kentucky Rules of Civil Procedure (CR) 52.01 and 59.05. The trial court denied the motions. This appeal followed.
On July 1, 2011, Moore filed a motion to dismiss the appeal, contending that it should be dismissed because the underlying judgment is by its very nature interlocutory. She argued that since no determination has been made with respect to Howell's negligence or her (Moore's) personal injury claims, the issue on appeal was not final, precluding our consideration. In the alternative, Moore contended that the notice of appeal was fatally defective since it failed to name indispensible parties.
On July 12, 2011, Metropolitan Direct responded to Moore's motion to dismiss the appeal. It contended that a trial court is expressly authorized to make a declaratory judgment action final and appealable despite the pendency of the underlying personal injury action and that the notice of appeal was entirely proper.
By order of this Court entered on January 13, 2012, the motion to dismiss was passed to the panel assigned to evaluate the merits of the appeal. Based upon binding precedent, we conclude that the trial court properly designated the summary declaratory judgment as final and appealable.
In support of its position with respect to the finality of the judgment, Metropolitan Direct relies on Preferred Risk Mut. Ins. Co. v. Kentucky Farm Bureau Mut. Ins. Co., 872 S.W.2d 469 (Ky.1994). In that case, the plaintiffs filed a personal injury action against the alleged tortfeasor. Preferred Risk intervened and sought a declaration of rights as to whether Kentucky Farm Bureau's policy provided liability insurance coverage. It also sought an award of damages in the event that the trial court determined that the Kentucky Farm Bureau policy provided coverage. After conducting some discovery, Preferred Risk moved for summary judgment. The trial court determined that the Kentucky Farm Bureau policy provided liability coverage for the accident. On appeal, we reversed the trial court. The Supreme Court of Kentucky then granted discretionary review.
Before both appellate courts, Preferred Risk argued that the summary judgment order was interlocutory -- despite the fact that the trial court's order contained the "final and appealable" language required by the provisions of Kentucky Rule(s) of Civil Procedure (CR) 54.02(1). Preferred Risk argued that the order was interlocutory because while it had sought both a declaratory judgment and monetary damages from Kentucky Farm Bureau, only the declaratory judgment portion of the claim had been decided by the trial court. Preferred Risk argued that despite the recitation of the CR 54.02(1) language, the interlocutory order was not substantively final and appealable as to all claims. While the Supreme Court agreed that inclusion of the CR 54.02(1) language does not necessarily end the inquiry as to the finality of an order, it disagreed that the order ruling on the declaratory action was interlocutory.
In analyzing the issue, the Court first observed that the declaratory judgment statute expressly permits a party to combine a declaratory action with other relief. The court then discussed whether an order disposing of only the declaratory action could be final and appealable -- even though damages claims asserted by other parties remained pending before the trial court. In a 4-3 decision (including a spirited dissent), the Supreme Court of Kentucky specifically rejected the contention that the trial court's summary declaratory judgment was interlocutory, holding as follows:
The trial court, having made the requested declaration of rights, was certainly empowered to denominate this portion of its adjudication as final and appealable, notwithstanding the possible necessity of further proceedings between these parties to assess damages, or of further proceedings between the remaining parties to the litigation. The wisdom of such action by the trial court is further vindicated by our decision on the merits. Since we have finally determined that there is no liability by Farm Bureau to Preferred Risk on the intervening complaint, there is no need for any further time-consuming proceedings between these parties for proof of damages.
In the case before us, the finality language of the trial court's summary declaratory judgment contained all of the language required by the provisions of CR 54.02, including that "there is no just reason for delay." Moore's arguments to support her position that the order and judgment disposing of the declaratory action are interlocutory were specifically -- albeit narrowly -- rejected by the Supreme Court of Kentucky. Because we are bound by precedent, we cannot dismiss the appeal as interlocutory.
In the alternative, Moore contends that the appeal must be dismissed since the notice of appeal is fatally defective. She contends that the notice of appeal fails to name parties indispensible to our disposition of the appeal. We disagree.
Without specific guidance, CR 73.03(1) provides that "[t]he notice of appeal shall specify by name all appellants and all appellees. . . ." Since the principal objective of a pleading is to give fair notice to the opposing party, it is well established that naming a party in the caption of the notice is sufficient to satisfy the rule even where the party is not named in the body of the notice. Lassiter v. American Express Travel Related Services, Co., Inc, 308 S.W.3d 714 (Ky. 2010). While the rule as to naming appellants is strictly construed, considerable latitude exists with respect to the naming of the appellees:
In the absence of any specific designation using the term "appellee," any party, other than the appellant, who is specifically named in the caption will be deemed to be an appellee. If a party is not so named, it is not grounds for dismissing the appeal unless the omitted party is an indispensable party to the appeal.See Schultz v. Chadwell, 548 S.W.2d 181, 184 (Ky.App. 1977).
Moore complains that neither Howell nor Kentucky Farm Bureau was named as an appellee in the Notice of Appeal filed by Metropolitan Direct. However, there is no dispute that they were listed as parties to the appeal in the caption of that notice. Consequently, fair notice was provided to those litigants, and the objective of the rule was satisfied. The appeal cannot be dismissed on this basis. We hereby DENY appellee's motion to dismiss the appeal.
We shall now consider the merits of the appeal. Metropolitan Direct contends that the circuit court erred in concluding that Howell was a resident of Terry Howell's household and that she was, therefore, entitled to coverage under the provisions of her father's automobile insurance policy. It also cites as error the court's conclusion that coverage existed because Howell was operating a vehicle that was not listed as a "covered vehicle" under the policy -- despite the fact that it was furnished to her or made available to her for her regular use.
Summary judgment is properly granted where the pleadings, depositions, answers to interrogatories, stipulations, admissions, and/or affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. CR 56.03. Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
The Metropolitan Direct policy issued to Terry and Kyra Howell provided coverage for an accident which resulted from the ownership, maintenance or use of a "non-owned automobile." A non-owned automobile was defined by the policy as one not owned by, furnished to, or made available for regular use to the insured or any resident in the insured's household. Coverage was specifically excluded under the policy for a non-owned automobile used by a relative who owned, leased, or had available for regular use a motor vehicle not described in the Declarations.
While Metropolitan Direct contended that Howell was not entitled to coverage under the policy provisions, the court determined that she was a resident of Terry Howell's household on the day of the accident and that she was operating a non-owned automobile. Consequently, the court concluded that she was entitled to coverage provided by the policy as a matter of law.
On appeal, Metropolitan Direct first contends that the court erred by finding that Howell was a resident of Terry Howell's household on the date of the accident. It argues that the court should have applied principles of estoppel, which would have precluded Howell (and Moore) from asserting that Howell was a resident of her father's household. In support of this position, Metropolitan Direct notes that Howell represented to officials while applying for her driver's license, registering for school, and responding to some discovery that she resided with her mother in Greenup, Kentucky. At other times, Howell indicated that she lived with Terry and Kyra Howell in Flatwoods, Kentucky.
In Kentucky Farm Bureau Mut. Ins. Co. v. Gray, 814 S.W.2d 928, 929 (Ky.App. 1991), this Court held that "the term 'household' has, for insurance purposes, been generally defined as 'persons dwelling together as a family under the same roof.'" Citing Hanover Ins. Co. v. Napier, 641 S.W.2d 47 (Ky.App. 1982). In Perry v. Motorists Mut. Ins. Co., 860 S.W.2d 762 (Ky. 1993), the Supreme Court of Kentucky observed that "[r]esidency and intent are questions of fact and not of law where the evidence supports more than one inference upon which reasonable minds may differ." Id. at 764.
We have carefully reviewed the evidence of record in this case. Howell's living arrangements were non-traditional. She spent a considerable amount of time at her boyfriend's home. Nevertheless, she kept possessions and maintained a room at the home of each of her parents. The facts would not preclude a finding that Howell was a resident of her mother's household in Flatwoods, Kentucky; nor would they preclude a finding that she was a resident of her father's household in Greenup. While the trial court did not err under these facts by refusing to apply an estoppel theory, it did err by concluding that this question could be answered as a matter of law. Reasonable minds could plainly differ with respect to the inferences arising from the abundant and conflicting evidence as to Howell's residency at the time of the accident. Consequently, we must conclude that the trial court erred by granting summary judgment on the issue of coverage. On remand, the issue of Howell's residence must be submitted to the trier of fact.
Similarly, we must conclude that the question of whether Howell was driving a non-owned vehicle (as that term is defined by the terms of the policy) precluded the entry of summary judgment. Metropolitan Direct contends on appeal that the only inference that could be drawn from the undisputed facts regarding Howell's use of the Silverado is that the Silverado was made available for her regular use -- resulting in the activation of the policy's exclusion provision. We disagree.
As we discussed earlier, the evidence of record indicates that the Silverado driven by Howell on the day of the accident belonged to Candace Gillum. Gillum provided it for the use of her son, Thomas Jones, Howell's boyfriend. However, once Jones lost his license in September or October 2008, he was forbidden by Gillum to drive the Silverado away from his father's property. Gillum authorized Howell to drive the Silverado.
The Crossfire identified on her father's Metropolitan Direct policy was provided for Howell's use. Howell drove the Crossfire every day. She also drove the Silverado "on the weekends when [she] wasn't doing [her] personal running." On the day of the accident, Jones had given Howell permission to drive the Silverado to take them both out for breakfast.
Under the circumstances, the question of whether the Silverado had been furnished or made available for Howell's regular use could not be answered as a matter of law. Instead, because of the various inferences that might reasonably be drawn from the facts, this issue was also one to be decided by a trier of fact. Consequently, we must conclude that summary judgment was inappropriately granted by the trial court.
Accordingly, we vacate the order of summary judgment and remand this matter to the trial court for further proceedings consistent with this opinion
ALL CONCUR.
Sara Combs
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: David K. Barnes
Christine D. Campbell
Louisville, Kentucky
BRIEF FOR APPELLEE: John F. Vincent
Ashland, Kentucky