State Auto Property and Casualty Insurance Company vs. Scenna, et al
Filing
26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S 22 MOTION FOR SUMMARY JUDGMENT. It is further ORDERED that this case be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 4/1/2015. (copy to counsel via CM/ECF)(lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
STATE AUTO PROPERTY AND
CASUALTY INSURANCE COMPANY,
Plaintiff,
v.
Civil Action No. 5:14CV15
(STAMP)
ALIO SCENNA, GINA SCENNA and
AL SCENNA BARBER & STYLES,
Defendants,
and
TRUDY MALONE, MICHAEL MALONE and
the ESTATE OF MICHELLE PARSONS,
Trudy Malone, Administratrix,
Nominal Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
I.
Background
The plaintiff, State Auto Property and Casualty Insurance
Company (“State Auto”), filed a declaratory judgment action in this
Court to determine whether it has a duty to provide coverage to the
defendants
under
a
general
commercial
liability
policy”) granted to defendant Alio Scenna.
policy
(“CGL
The question of the
coverage arose because of an underlying personal injury case,
brought by Trudy Malone, Michael Malone, and the Estate of Michelle
Parsons, through Trudy Malone as Administratrix (“the Malones”),
against the other three defendants, Alio Scenna, Gina Scenna, and
Al Scenna Barber & Styles (“the Scennas”).
The underlying state
court action involves a car accident wherein the plaintiffs allege
that Alio Scenna caused an accident which killed Michelle Parsons
and seriously injured Trudy Malone and Michael Malone.
has now filed a motion for summary judgment.
response to that motion.
State Auto
The Malones filed a
However, the Scennas did not respond.
The motion for summary judgment is fully briefed and ripe for
review.
In its motion for summary judgment, State Auto contends that
the CGL policy excludes coverage for automobile accidents that
arise from accidents in which the vehicle was owned by an insured.
Thus, State Auto argues that the Scennas are precluded from
claiming coverage for the underlying car accident as the state
court complaint alleges injuries that arise out of the ownership,
use, and entrustment of an automobile. Further, State Auto asserts
that an exception to the exemption does not apply as Alio Scenna
(1) was not parking the vehicle next to his barber shop but rather
was pulling out of a bank parking lot, and (2) the vehicle was
owned by Gina Scenna and operated by Alio Scenna.
State Auto
argues that the exemption to the exception is not illusory as it is
meant to apply to valet situations.
In response, the nominal defendants, the Malones, argue that
the
Scennas
are
covered
under
the
CGL
policy
or,
in
the
alternative, that the policy is ambiguous and must be read in the
Malones’ favor.
First, the Malones contend that this Court’s
2
decision in Essex Ins. Co. v. Neely, No. CIV. A. 5:04CV139, 2008 WL
619194, at *9 (N.D. W. Va. Mar. 4, 2008), is not applicable as the
policy reviewed in that case did not include the exception to the
vehicle ownership exclusion clause in this case.
Second, the
Malones assert that coverage is not precluded by the application of
Middlesex Mut. Assur. Co. v. Fish, 738 F. Supp. 2d 124, 131 (D. Me.
2010), as it is likely that Alio Scenna was not “loaned” the
vehicle he was driving by Gina Scenna.
The Malones argue that (1)
the Scennas have claimed that Alio Scenna was not acting within the
scope of his employment and thus Gina Scenna could not have loaned
her car to the business for business purposes, and (2) even though
Alio was driving a car that was owned by Gina, his wife, he likely
was not being “loaned” the vehicle as he likely did not have to ask
permission to use the vehicle.
Next, the Malones contend that
because of the proximity of the bank’s parking lot, where the
accident occurred, to the barber shop and Alio Scenna’s immediate
return to the barber shop parking lot after the accident, Alio
Scenna should be held as being under the exception of parking next
to the business. Further, the Malones assert that the language “or
on the ways next to” is ambiguous and that the accident location
would fall within the general meaning of that phrase.
In its reply, State Auto first reiterates that Alio Scenna was
using a car that he or the other insured, Gina Scenna, owned and at
most, Gina Scenna loaned Alio Scenna the car to use the day of the
3
accident. State Auto then argues that in order to trigger coverage
under the CGL policy, one must be an insured under that policy, and
thus the Malones’ argument that Alio Scenna was not acting within
his employment the day of the accident goes against coverage under
the policy, not in favor of coverage.
Finally, State Auto asserts
that the policy in Essex (which it attached as an exhibit) had the
same exact exception as the exception in this case and thus this
Court should again hold that the language is unambiguous and
exempts the Scennas from coverage.
Based on the analysis that follows, this Court finds that
State Auto’s motion for summary judgment should be granted.
II.
Summary
judgment
is
Applicable Law
appropriate
if
“the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, 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.”
Fed. R. Civ. P. 56(c).
The
party seeking summary judgment bears the initial burden of showing
the absence of any genuine issues of material fact.
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
See Celotex
“The burden then
shifts to the nonmoving party to come forward with facts sufficient
to create a triable issue of fact.”
Temkin v. Frederick County
Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
4
However, as the United States Supreme Court noted in Anderson,
“Rule 56(e) itself provides that a party opposing a properly
supported motion for summary judgment may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth
specific facts showing that there is a genuine issue for trial .”
Anderson, 477 U.S. at 256. “The inquiry performed is the threshold
inquiry
of
determining
whether
there
is
the
need
for
a
trial—whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.”
Id. at 250;
see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979) (Summary judgment “should be granted only in those cases
where it is perfectly clear that no issue of fact is involved and
inquiry into the facts is not desirable to clarify the application
of the law.” (citing Stevens v. Howard D. Johnson Co., 181 F.2d
390, 394 (4th Cir. 1950))).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing
sufficient
to
establish
the
existence
of
an
element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”
Celotex, 477 U.S. at 322.
Summary
judgment is not appropriate until after the non-moving party has
had sufficient opportunity for discovery.
5
See Oksanen v. Page
Mem’l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502
U.S. 1074, 112 S. Ct. 973, 117 L.Ed.2d 137 (1992).
In reviewing
the supported underlying facts, all inferences must be viewed in
the light most favorable to the party opposing the motion.
See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986).
III.
Discussion
It is undisputed that West Virginia law should apply in this
case.
Under West Virginia law, this Court does not have to
adjudicate the underlying facts of the state court action in order
to decide coverage.
See West Virginia Fire & Cas. Co. v. Stanley,
602 S.E.2d 483, 490 (W. Va. 2004) (“[T]he insured’s position is
based on the fatally flawed notion that in order for the trial
court to decide coverage, it must adjudicate the underlying facts.
This simply is not true under our law.”).
The Supreme Court of
Appeals of West Virginia has stated that, as a general rule, when
a court considers an insurer’s duty to defend, it must look to
whether
the
allegations
in
the
complaint
“are
reasonably
susceptible of an interpretation that the claim may be covered by
the terms of the insurance policy.”
Id.
Further, an insurance
company’s duty to defend is determined primarily by the pleadings
in the underlying lawsuit.
Id. at 498 (quoting 14 Lee R. Russ,
Couch on Insurance § 200:20 (1999)).
This Court does not look to
the veracity of the pleadings when making the determination.
6
Id.
State Auto has shown there are no genuine issues of material
fact.
The burden then shifts to the Malones to show that there are
triable issues of fact.
burden.
The Malones have failed to meet this
With no issues of fact in dispute, coverage issues in an
insurance contract are questions of law.
Syl. Pt. 1, Tennant v.
Smallwood, 568 S.E.2d 10 (W. Va. 2002).
This Court now turns to
the provisions of the policy.
A.
Auto Exclusion
The Malones argue that the auto exclusion should not apply as
it is likely Alio Scenna did not ask permission to use the car
owned by Gina Scenna and thus it was not loaned to Alio Scenna.
In
the alternative, the Malones assert that Alio Scenna was not acting
within the scope of his employment when he was using Gina Scenna’s
vehicle the day of the accident.
Insurance policy provisions which are clear and unambiguous
are not subject to judicial review or interpretation; rather,
courts must give full effect to the plain meaning intended.
v. Painter, 504 S.E.2d 171 (W. Va. 1987).
Kelly
As this Court has
previously found, when reviewing the same exclusion, this Court
finds that the policy language is clear, and it is unambiguous.
Essex, 2008 WL 619194 at *9.
Further, this Court finds, despite
the Malones’ argument otherwise, that Essex is applicable to this
case
as
Essex
involved
the
same
auto
exclusion
provision.
Additionally, the language used in the auto exclusion exception, as
7
will be discussed in the next section, is similar and almost
mirrors the auto exclusion language as to the ownership phrase.1
Section I, paragraph 2 of the CGL Coverage Form lists the
exclusions of the policy and provides, in pertinent part:
2.
Exclusions
This insurance does not apply to:
* * *
g.
Aircraft, Auto or Watercraft
“Bodily injury” or “property damage” arising out of the
ownership, maintenance, use or entrustment to others of
any aircraft, “auto” or watercraft owned or operated by
or rented or loaned to any insured.
Use includes
operation and “loading or unloading.”
ECF No. 23-3.
This Court rejects the defendants’ contentions that Alio
Scenna was “loaned” the car by Gina Scenna or not, or that Alio
Scenna was not acting within the scope of his employment. As State
Auto notes, if Alio Scenna was not acting within the scope of his
employment, then he would not be an “insured” under the policy and
thus the Malones’ argument for coverage would fail even without the
application of the auto exclusion. Further, the Malones contend in
their state court complaint that Alio Scenna was “within the active
course and scope of his employment as owner and operator of Al
1
The auto exclusion uses the language “owned or operated by or
rented or loaned to any insured” and the exception to the auto
exclusion uses the language “owned by or rented or loaned to you or
the insured.” ECF No. 23-3.
8
Scenna Barber and Styles.”
ECF No. 23-2 at 3.
To reiterate, an
insurance company’s duty to defend is determined primarily by the
pleadings in the underlying lawsuit.
(citation omitted).
Stanley, 602 S.E.2d at 498
Thus, the Malones’ argument regarding the
scope of employment does not resonate with this Court.
Moreover, the motor vehicle accident resulting in the Malones’
alleged injuries indisputably occurred because of the actions of an
insured who was loaned the vehicle.
Alio Scenna was driving the
car of his wife, Gina Scenna, the day of the accident.
Further,
according to the Malones’ state court complaint, “Gina Scenna
entrusted the 2011 Subaru Impreza motor vehicle to Defendant Alio
Scenna.”
Id. at 6.
Therefore, as this Court is guided by the
state court pleadings, Alio Scenna’s use of an auto owned by Gina
Scenna and loaned to him gave rise to, caused, or contributed to
the Malones’ alleged bodily injuries.
Consequently, the auto
exclusion applies.
B.
Exception to the Auto Exclusion
The auto exclusion in the CGL policy contains an exception
which states as follows:
This exclusion does not apply to:
****
(3) Parking an “auto”
to, premises you own
“auto” is not owned by
you or the insured . .
on, or on the ways next
or rent, provided the
or rented or loaned to
. .
ECF No. 23-3.
9
The Malones assert that this exception should apply as the
bank parking lot is in close proximity to the parking lot of the
barber shop and Alio Scenna was exiting the bank parking lot in
order to return to the barber shop.
Further, the Malones contend
that the phrase “on, or on the way next to” is ambiguous and should
be interpreted as including the accident location.
As
this
Court
has
previously
found
in
this
order,
the
automobile that Alio Scenna was driving at the time of the accident
was “owned by or rented or loaned” to him.
Middlesex Mut. Assur.
Co., 738 F. Supp. 2d at 131 (finding that under this exception, it
must be found that the automobile was not owned by or rented or
loaned to the insured).2
This language, contained in the exception
is unambiguous. See Essex, 2008 WL 619194 at *9 (interpreting auto
exclusion with similar language).
And again, the entrustment to
Alio Scenna by Gina Scenna is an assertion in the state court
complaint adopted by this Court.
Thus, the exception to the auto
exclusion would not apply regardless of whether or not the accident
occurred
“on,
or
on
the
way
next
to”
the
barber
shop.
Consequently, the exception to the auto exclusion does not apply.
Thus, there is no genuine issue as to any material fact and State
Auto is entitled to a judgment as a matter of law.
2
This Court notes that the Malones argued that Middlesex did
not apply to this case as it was questionable whether the
automobile was loaned to Alio Scenna. As this Court has found that
the automobile was loaned to Alio Scenna, Middlesex is applicable
to this case.
10
IV.
Conclusion
Based on the analysis above, the plaintiff’s motion for
summary judgment is hereby GRANTED.
It is further ORDERED that
this case be DISMISSED WITH PREJUDICE and STRICKEN from the active
docket of this Court.
Accordingly, this Court DECLARES that:
1.
State Auto has no duty to defend or indemnify Alio
Scenna, Gina Scenna, and/or Al Scenna Barber & Styles under the CGL
Policy, Policy No. BOP-2519169.
2.
The CGL policy issued by State Auto provides no coverage
for, and is not applicable to, the claims of Trudy Malone, Michael
Malone, or Michelle Parsons, deceased, from an automobile accident
that
occurred
on
June
28,
2012,
in
or
about
Wheeling,
West
Virginia, as set forth in Malone, et al. v. Scenna, et al., Civil
Action No. 13-C-288 (W. Va. Cir. Ct., Ohio Co. 2013).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
April 1, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?