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IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
___________
No. 23994
___________
CRYSTAL LYNN SPANGLER, MOTHER AND
NEXT FRIEND OF CHRISTOPHER RYAN HENSLEY,
AN INFANT, AND CRYSTAL SPANGLER, INDIVIDUALLY,
Plaintiffs Below, Appellants
v.
JEFFREY ARMSTRONG AND PATRICIA ARMSTRONG
AND KENTUCKY CENTRAL INSURANCE COMPANY,
A CORPORATION,
Defendants Below, Appellees
___________________________________________________
Appeal from the Circuit Court of Fayette County
Honorable Charles M. Vickers, Judge
Civil Action No. 93-C-0175
AFFIRMED
___________________________________________________
Submitted: September 17, 1997
Filed: December 15, 1997
Matthew J. Hayes
Pepper & Nason
Charleston, West Virginia
Attorney for the Appellants
Catherine D. Munster
James A. Varner
McNeer, Highland, McMunn & Varner
Clarksburg, West Virginia
Attorneys for the Appellee Kentucky Central Insurance Company
This Opinion was delivered PER CURIAM.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1.
"A circuit court's entry of a declaratory judgment is
reviewed de novo." Syl. pt. 3, Cox v. Amick, 195 W. Va. 608,
466 S.E.2d 459 (1995).
2. "Where
the provisions of an insurance policy contract are clear and
unambiguous they are not subject to judicial construction or
interpretation, but full effect will be given to the plain
meaning intended." Syllabus, Keffer v. Prudential Ins. Co.
of America, 153 W. Va. 813, 172 S.E.2d 714 (1970).
3. "Language
in an insurance policy should be given its plain, ordinary
meaning." Syl. pt. 1, Soliva v. Shand, Morahan & Co.,
176 W. Va. 430, 345 S.E.2d 33 (1986).
Per Curiam:See
footnote 1 1
This declaratory
judgment action is before this Court upon an appeal from a final
order of the Circuit Court of Fayette County entered on May 24,
1996. Pursuant to that order, the circuit court entered
declaratory judgment in favor of the appellee, Kentucky Central
Insurance Company (hereinafter "Kentucky Central"),
declaring that liability coverage did not exist for Jeffrey and
Patricia Armstrong under an insurance policy issued to Timothy
and Margaret Armstrong. Specifically, the circuit court
determined that Jeffrey and Patricia Armstrong were not
"insureds" for purposes of personal liability coverage.
This Court has
before it the petition for appeal, all matters of record, and the
briefs and argument of counsel. As discussed below, this Court is
of the opinion that Jeffrey and Patricia Armstrong are not
"insureds" under the policy. Accordingly, the final
order is affirmed.
I
On February 22,
1991, Christopher Ryan Hensley, infant child of Crystal Lynn
Spangler, was bitten on the face by a Chow dog owned by Jeffrey
Armstrong and his mother, Patricia Armstrong. The attack occurred
on property owned by Timothy Armstrong and his wife, Margaret
Armstrong, and rented and occupied by Jeffrey and Patricia
Armstrong.See footnote 2 2
As a result of the attack, Crystal Spangler filed suit
individually and on behalf of her son against all four
Armstrongs.
Prior to the
incident, Kentucky Central issued a dwelling policy which
included a personal liability section to Timothy and Margaret
Armstrong. Kentucky Central undertook the defense of its named
insureds and filed an answer to the complaint on their behalf.
Jeffrey and Patricia Armstrong failed to file answers and default
judgments on the issue of liability were entered against them.
Thereafter,
appellants were granted leave to amend their complaint to bring
in Kentucky Central and assert a declaratory judgment action to
determine insurance coverage for Jeffrey and Patricia Armstrong
under the policy issued to Timothy Armstrong. The declaration
page of the personal liability section lists Timothy Armstrong
and his address as General Delivery, Winona, West Virginia, but
it is noted that the
residence premises covered by the policy is the
"Scarbro property" which is where the attack occurred.
The policy
indicates that coverage exists for the dwelling only.See footnote 3 3 The
dwelling rating information sheet indicates that the residence is
"Owner Occupied." However, it is undisputed that
Timothy and Margaret Armstrong have not resided at the property
where the attack occurred since they purchased it. Instead,
Jeffrey and Patricia Armstrong have lived on the property and
paid the mortgage, taxes and utilities as rent. There is no
evidence that Kentucky Central knew that Timothy Armstrong's
brother and mother were living on the property.
While appellants
amended their complaint, Kentucky Central, in further defense of
its insureds, filed a motion for summary judgment on their
behalf. On April 24, 1996, the circuit court granted the motion
and entered an order dismissing Timothy and Margaret Armstrong
from the suit.See footnote 4
4 Subsequently, on May 24, 1996, the circuit court
issued the final order declaring that liability coverage did not
exist for Jeffrey and Patricia Armstrong as they were not
"insureds" under the clear and unambiguous terms of the
policy.
II
In syllabus point
3 of Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995), this
Court held: "A circuit court's entry of a declaratory
judgment is reviewed de novo." See also syl. pt. 1, Bruceton
Bank v. United States Fidelity and Guaranty Ins. Co., 199 W. Va.
548, 486 S.E.2d 19 (1997); syl. pt. 1, Bush v. Richardson, 199 W.
Va. 374, 484 S.E.2d 490 (1997).
In this case,
appellants contend that the circuit court failed to follow the
doctrine of reasonable expectations. They assert that the
insurance policy is ambiguous regarding the definition of
"insured." Appellants claim that by ruling that Jeffrey
and Patricia Armstrong are not insured persons under the policy,
the circuit court created an absurd result leaving the house and
property without liability coverage which is clearly not what was
intended.
Kentucky Central
maintains the policy language is clear and unambiguous. It
contends that Jeffrey and Patricia Armstrong were not named
insureds and were not additional insureds because they did not
reside in Timothy Armstrong's household. Kentucky Central further
contends that the circuit court's ruling does not create
"illusory coverage" or defeat the intention of Timothy
and Margaret Armstrong to have personal liability coverage on the
property because they were successfully defended and dismissed
from the case below.
The
critical determination in this case is whether the term
"household" is ambiguous. We have previously held that:
"When reasonable people can differ about the meaning of an
insurance contract, the contract is ambiguous, and all
ambiguities will be construed in favor of the insured." Syl.
pt. 1, D'Annunzio v. Security-Connecticut Life Ins. Co., 186 W.
Va. 39, 410 S.E.2d 275 (1991). However, we have also held that:
"Where the provisions of an insurance policy contract are
clear and unambiguous they are not subject to judicial
construction or interpretation, but full effect will be given to
the plain meaning intended." Syllabus, Keffer v. Prudential
Ins. Co. of America, 153 W. Va. 813, 172 S.E.2d 714 (1970). See
also syl. pt. 1, Miller v. Lemon, 194 W. Va. 129, 459 S.E.2d 406
(1995). In addition, in syllabus point 1 of Soliva v. Shand,
Morahan & Co., 176 W. Va. 430, 345 S.E.2d 33 (1986), we held
that: "Language in an insurance policy should be given its
plain, ordinary meaning." See also syl. pt. 2, Auber v.
Jellen, 196 W. Va. 168, 469 S.E.2d 104 (1996); syl. pt. 2,
Russell v. State Automobile Mut. Ins. Co., 188 W. Va. 81, 422
S.E.2d 803 (1992). .
The pertinent
policy language provides:
In
this policy, 'you' and 'your' refer to the 'named insured' shown
in the Declarations and the spouse if a resident of the same
household. 'We' 'us' and 'our' refer to the Company providing
this insurance. In addition, certain words and phrases are
defined as follows:
. . . .
3.
'insured' means you and residents of your household who are:
a.
your relatives;
b.
other persons under the age of 21 and in the care of any person
named above;
c.
with respect to animals or watercraft to which this policy
applies, any person or organization legally responsible for these
animals or watercraft which are owned by you or any person
included in 3a or 3b above. A person or organization using or
having custody of these animals or watercraft in any course of
any 'business' or without consent of the owner is not an
'insured;'
In accordance with the policy language, Jeffrey
and Patricia Armstrong are "insureds" under the policy
as relatives of Timothy Armstrong if they were residents of his
"household" at the time of the event. Although this
Court has not had an occasion to consider the word
"household" within an insurance policy provision,
several other jurisdictions have examined this language.
For instance, in
Gredig v. Tennessee Farmer's Mut. Ins. Co., 891 S.W.2d 909, 911
(Tenn. Ct. App. 1994), the court considered language in an
insurance policy which defined "insured person" to
include "(a) you; (b) your spouse or relatives of either
residing in your household." The policy in question had been
issued to Robert Gredig and covered a house he owned which was
later destroyed by fire. Prior to the fire, Robert had traded
houses with his brother, Donald Gredig, but had not given notice
to his insurer. Accordingly, the insurer denied coverage on the
basis that Robert had not obtained written consent for his
brother to occupy the property. Donald argued that the policy was
ambiguous and contended that he was an insured
person under the policy because he was Robert's relative and was
living in Robert's "household" at the time of the fire.
Id. at 911-12. Finding that the language, "residing in your
household," was not ambiguous, the court vacated the
decision below and held that there was no coverage because
"Donald and Robert were not 'living under one roof.'"
Id. at 914. In so holding, the court relied on a prior decision
of the Tennessee Supreme Court which stated: "'The great
weight of authority seems to be to the effect that a household
means those living together under one roof, under one head, and
under the common control of one person.'" Id. at 913
(quoting Boyd v. Peoples Protective Life Ins. Co., 345 S.W.2d
869, 872 (Tenn. 1961)).
In Howard v.
Hartford Ins. Co., 507 A.2d 230 (N.H. 1986), the court considered
policy language which covered only those persons living in the
named insured's household. The case resulted from a shooting
incident in which the plaintiff's decedent was shot and killed by
Neil Bird. The decedent and Bird had lived together in a house
owned by Bird's parents who also resided on the property in a
second house. The insurance policy at issue was owned by Bird's
parents. The trial court found that there was no coverage under
the policy based on the "'separate roof theory.'" Id.
at 230-31. Affirming the decision, the New Hampshire court
stated:
[E]ven if there
was an intent by the elder Birds to include the younger couple,
the policy clearly states that there is liability coverage only
for members of the named insured's household. We hold that
someone living in a separate dwelling, though on
the insured premises, is not a member of the
named insured's household.
Id. at 232.
The
court in Hernandez v. Comco Ins. Co., 357 So.2d 1368 (La. Ct.
App. 1978), reached a similar result. In Hernandez, the plaintiff
was injured at the home of his son when he sustained burns from
the explosion of crawfish boiling equipment. The property was
owned by Alvin Pellegrini, father-in-law of plaintiff's son.
Pellegrini's insurance policy covered accidents of this type, but
defined "insured" as "if residents of the Named
Insured's household, his spouse, the relatives of either, and any
other person under the age of twenty-one in the care of any
Insured." Id. at 1369-70. In discussing the definition of
"household," the Court stated: "The pattern which
emerges from the myriad of decisions considering the term
'household' seems to be an emphasis on dwelling as a family under
one head." Id. at 1371. The court concluded that two
independent families existed making coverage unavailable under
the policy. Id.
As the cases
discussed above suggest, liability policies providing coverage
for members of an insured's "household" generally
include persons who live under the same roof, but not those who
live in separate houses. See also 43 Am. Jur. 2d Insurance § 704
(1982). This is consistent with the general definition of
"household" found in Webster's New Collegiate
Dictionary.See footnote 5 5
Consequently, we find that the word "household"
in Timothy Armstrong's insurance policy is
clear and unambiguous.See
footnote 6 6 Although some jurisdictions have
reached the opposite conclusion,See footnote 7 7 we agree with the
Gredig court that "the fact that the words may be difficult
to apply to a given factual situation does not make those words
ambiguous." 891 S.W.2d 914. See also Heard v. Farmers Ins.
Exchange Co., 496 P.2d 619 (Ariz. Ct. App. 1972).
Here, it is
undisputed that Jeffrey and Patricia Armstrong and the insureds
lived in separate houses which were not even on the same
property. Furthermore, Jeffrey and Patricia Armstrong paid the
mortgage, taxes and utilities on the house and property where
they resided. Timothy Armstrong visited his mother and brother
only once or
twice a month. Clearly, Jeffrey and Patricia
Armstrong were not residents of Timothy Armstrong's household at
the time the event occurred. Accordingly, Timothy Armstrong's
insurance policy does not afford coverage for Jeffrey and
Patricia Armstrong because they are not "insureds"
under the policy.See
footnote 8 8
Based upon all of
the above, the final order of the Circuit Court of Fayette County
entered on May 24, 1996, is affirmed.
Affirmed.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W. Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992) ("Per curiam opinions . . . are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta. . . . Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not- to-be-cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.").
Footnote: 2 2 Jeffrey and Patricia Armstrong are Timothy Armstrong's brother and mother.
Footnote: 3 3 Jeffrey and Patricia Armstrong did not have renter's insurance.
Footnote: 4 4 The April 24, 1996, order was not appealed and has now become final.
Footnote: 5 5 Webster's New Collegiate Dictionary 550 (1981) defines household as:
"[T]hose who dwell under the same roof and compose a family."
Footnote:
6 6
Because this Court has concluded that the language of the
insurance policy is unambiguous, we find no merit in appellant's
argument that the circuit court failed to apply the doctrine of
reasonable expectations. In National Mut. Ins. Co. v. McMahon
& Sons, Inc., 177 W. Va. 734, 742, 356 S.E.2d 488, 496 (1987)
we stated that: "In West Virginia, the doctrine of
reasonable expectations is limited to those instances
. . . in which the policy language is ambiguous."
Footnote: 7 7 See Cal-Farm Insurance Co. v. Boisseranc, 312 P.2d 401 (Cal. Dist. Ct. App. 1957) (finding that the terms "resident" and "household" have no absolute meaning, the court affirmed the trial court's finding that a child was an "insured" under his non- custodial father's comprehensive liability policy); Londre v. Continental Western Insurance Co., 343 N.W.2d 128 (Wis. Ct. App. 1983) (finding that a determination of whether a person is a resident of a household for insurance purposes requires examination of all relevant facts and consideration of whether the person and the named insured are: (1) living under the same roof; (2) in a close, intimate, and formal relationship; and (3) in a relationship of substantial duration such that it is reasonable to conclude they may have considered the relationship in contracting about such matters as insurance).
Footnote: 8 8 We also find no merit to appellant's claim that the circuit court's decision left the "Scarbro property" uninsured. As noted above, Kentucky Central did not dispute that the "Scarbro" property was the insured location as it defended Timothy and Margaret Armstrong below. Although the circuit court's order is not specific, it appears that Timothy and Margaret Armstrong were dismissed from the case because they were not aware that the dog was on the property. Because the property was insured for the benefit of Timothy and Margaret Armstrong, appellant's argument lacks merit.