Davis, C.J., dissenting:
Under the majority opinion, for Mr. Tucker to establish that Darrell was a
resident of Locie's household, Mr. Tucker had to present evidence on the following: (1) the
intent of the parties, (2) the formality of the relationship between the person in question and
the other members of the named insured's household, (3) the permanence or transient nature
of that person's residence therein, (4) the absence or existence of another place of lodging
for that person, and (5) the age and self-sufficiency of that person. Mr. Tucker's evidence
fails under all five criteria.
1. The intent of the parties. This factor in the majority's test is particularly
confusing, primarily due to the lack of any indication of what is meant by the term
“formality.” Assuming, for the sake of argument, that this factor directs that consideration
be given to the relationship between the “person in question” and the insured, then Mr.
Tucker's case still fails to survive summary judgment as he did not present any evidence
describing the nature of the relationship between Darrell and Locie.
3. The permanence or transient nature of that person's residence therein.
Under this element of the majority's test, there must have been a showing that a person was
actually residing in the home of the insured for some period of time. Here, all evidence
established that Darrell did not reside in Locie's trailer. Darrell lived in one trailer. Locie
lived in a separate trailer.
4. The absence or existence of another place of lodging for that person. As
previously indicated, all evidence proved that Darrell lived alone in his own trailer.
5. The age and self-sufficiency of that person. Darrell was thirty-eight
years old. He lived alone and independently.
Based upon the evidence outlined above, it is clear that summary judgment was
appropriate in this case.
Prior to the decision in the instant case, the law in West Virginia has
traditionally held that “[a] valid written instrument which expresses the intent of the parties
in plain and unambiguous language is not subject to judicial construction or interpretation
but will be applied and enforced according to such intent.” Syl. pt. 1, Cotiga Dev. Co. v.
United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962). See also Syl. pt. 2, Orteza
v. Monongalia County Gen. Hosp., 173 W. Va. 461, 318 S.E.2d 40 (1984) (“Where the terms
of a contract are clear and unambiguous, they must be applied and not construed.”); Syl. pt.
4, Williams v. South Penn Oil Co., 52 W. Va. 181, 43 S.E. 214 (1903) (“It is the safest and
best mode of construction to give words free from ambiguity their plain and ordinary
meaning.”). In syllabus point two of the majority opinion, our law of contract interpretation
has been totally emasculated and replaced with a new and dangerous rule.
I am simply at a loss in expressing my dismay over the majority's decision to
make every unambiguous insurance policy in West Virginia subject to challenge by policyholders.
(See footnote 2) Under the majority opinion no insurance
company will ever prevail, even when the clear and unambiguous terms of a
policy support their position. This is true because syllabus point two of
the majority opinion permits a plaintiff's attorney to contort unambiguous
words “without violence” in order to make them ambiguous. When this
is done, the majority has made crystal clear that the interpretation “which
will sustain the claim and cover the loss must be adopted.” (Emphasis
added).
In view of the foregoing, I dissent. I am authorized to state that Justice
Maynard joins me in this dissenting opinion.
In this proceeding the trial court granted summary judgment against Hubert
Tucker. The trial court found no material issue of fact in dispute as to whether a
homeowner's policy issued by Farmers Mutual Insurance Company covered Darrell Taylor,
the adult son of its insured, Locie Taylor. The majority has determined that material issues
of fact exist in this case. Therefore, the majority reversed the trial court's ruling. For the
reasons set out below, I dissent.
The initial problem I have with the majority opinion is that the opinion blindly
launches into the meaning of “household,” when a more fundamental and dispositive hurdle
had to be addressed and overcome by Mr. Tucker. That issue involved the evidence
presented to show that Locie or Darrell believed that Darrell was a member of Locie's
household. In every case, cited in the majority, except one, a party to the litigation claimed
to be a member of a household in order to obtain coverage under a policy. See Johnson v. State Farm Mut. Auto. Ins. Co., 252 F.2d 158 (8th Cir. 1958)
(insured's daughter sought coverage); Atlanta Cas. Co. v. Powell, 83
F. Supp. 2d 749 (N.D. Miss. 1999) (son sought coverage under father's policy);
Aetna Cas. & Sur. Co. v. Shambaugh, 747 F. Supp. 1203 (N.D. W.
Va. 1990) (insured sought coverage for son); Aetna Cas. & Sur. Co.
v. Miller, 276 F. Supp. 341 (D. Kan. 1967) (estranged wife sought coverage
under husband's policy); Crossett v. St. Louis Fire & Marine Ins. Co.,
269 So. 2d 869 (Ala. 1972) (son sought coverage under father's policy); Simmons
v. Insurance Co. of N. Am., 17 P.3d 56 (Alaska 2001) (daughter sought
coverage of father's alleged policy); Mid-Century Ins. Co. v. Duzykowski,
641 P.2d 1272 (Ariz. 1982) (daughter of insured sought coverage); State
Farm Mut. Auto. Ins. Co. v. Johnson, 729 P.2d 945 (Ariz. Ct. App. 1986)
(spouse of deceased sought coverage under decedent's policy); Reserve Ins.
Co. v. Apps, 149 Cal. Rptr. 223, 85 Cal. App. 3d 228 (Ct. App.
1978) (estranged wife sought coverage under husband's policy); State Farm
Mut. Auto. Ins. Co. v. Elkins, 125 Cal. Rptr. 139, 52 Cal. App. 3d 534
(Dist. Ct. App. 1975) (daughter sought coverage under parents' policy); Cal-Farm
Ins. Co. v. Boisseranc, 151 Cal. App. 2d 775, 312 P.2d 401 (Dist. Ct.
App. 1957) (insured sought coverage for son); Iowa Nat. Mut. Ins. Co. v.
Boatright, 516 P.2d 439 (Colo. Ct. App. 1973) (estate of deceased sought
coverage under daughter's policy); Rathbun v. Aetna Cas. & Sur. Co.,
128 A.2d 327 (Conn. 1956) (sister of deceased was member of deceased household);
Alava By and Through Alava v. Allstate Ins. Co., 497 So. 2d 1286 (Fla. Dist.
Ct. App. 1986) (son sought coverage under father's policy); Row v. United
Servs. Auto. Ass'n, 474 So. 2d 348 (Fla. Dist. Ct. App. 1985) (father sought coverage for deceased son);
Farmers Auto. Ins. Ass'n v. Williams, 746 N.E.2d 1279 (Ill. App. Ct.
2001) (insured's son sought coverage); Wood v. Mutual Serv. Cas. Ins. Co.,
415 N.W.2d 748 (Minn. Ct. App. 1988); Mutual Serv. Cas. Ins. Co. v. Olson,
402 N.W.2d 621 (Minn. Ct. App. 1987) (son sought coverage under mother's policy);
Cobb v. State Sec. Ins. Co., 576 S.W.2d 726 (Mo. 1979) (insured sought
coverage for deceased daughter); Amco Ins. Co. v. Norton, 500 N.W.2d
542 (Neb. 1993) (insureds sought coverage for niece); Gibson v. Callaghan,
730 A.2d 1278 (N.J. 1999) (in- law of insured sought coverage); Mazzilli
v. Accident & Cas. Ins. Co., 170 A.2d 800 (N.J. 1961) (estranged wife
sought coverage under husband's policy); Nationwide Mut. Ins. Co. v. Allison,
277 S.E.2d 473 (N.C. Ct. App. 1981) (estranged wife sought coverage under
husband's policy); State Farm Mut. Auto. Ins. Co. v. McCormick, 17
P.3d 1083 (Ore. Ct. App. 2000) (mother sought to show daughter was
not member of household); General Motors Acceptance Corp. v. Grange Ins.
Ass'n, 684 P.2d 744 (Wash. Ct. App. 1984) (son sought coverage under father's
policy); Pierce v. Aetna Cas. & Sur. Co., 627 P.2d 152 (Wash. App.
1981) (son sought coverage under father's policy); A.G. by Waite v. Travelers
Ins. Co., 331 N.W.2d 643 (Wis. Ct. App. 1983) (foster care child sought
coverage under foster care mother's policy); Londre by Long v. Continental
W. Ins. Co., 343 N.W.2d 128 (Wis. Ct. App. 1983) (son sought coverage
under father's policy).
(See footnote 1)
Here, there was no evidence presented by Mr. Tucker that Locie believed or
considered Darrell to be a member of his household. Additionally, there was no evidence
that Darrell believed or considered himself a member of Locie's household. In fact, the
evidence indicated that neither Locie nor Darrell considered Darrell as a member of Locie's
household. Thus, there was no need to examine the wording of the insurance policy. Under
the majority's decision, Mr. Tucker merely had to assert that Darrell was a resident in Locie's
household to trigger an analysis of the policy language. This is wrong. A third party cannot
be allowed to invade a homeowner's contract with an insurance company solely upon a bare
assertion that someone resides in the homeowner's home. Bare assertions are the fruit of
summary judgment and should be dismissed as a matter of law.
Assuming arguendo that Mr. Tucker submitted sufficient evidence to require
the trial court to examine the language of the policy, Mr. Tucker nevertheless failed to satisfy
the test created by the majority in order to withstand summary judgment.
2. The formality of the relationship between the person in question and the
other members of the named insured's household. This next requirement simply has no
application in the context of the instant case. Only two people have been described as
relevant in the so-called household in this case: Darrell and Locie. There is no evidence of
anyone else purporting to be a member of the alleged household.
Syllabus point two of the majority opinion states that “[w]hen the words of an
insurance policy are, without violence, susceptible of two or more interpretations, that which
will sustain the claim and cover the loss must be adopted.” This proposition is revolutionary
in the area of contract interpretation. In every treatise, law review publication, and every
decision ever rendered by an American court, the rule of law has been that an unambiguous
contract cannot be “contorted” to make it ambiguous. The majority in this case has deviated
from all Anglo-American jurisprudence to permit unambiguous language in an “insurance
policy” to become ambiguous, so long as the contortion of the unambiguous words is
“without violence.”
Footnote: 1
Footnote: 2