On Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Civil No. 88-0279.
Sloviter, Chief Judge, Mansmann, Circuit Judge, and John P. Fullam, District Judge.*fn* John P. Fullam, dissenting.
Appellants Wayne Wilkerson, Susan Kilmer and Richard Schoch appeal from the district court's order denying Wilkerson's post-trial motions and declaring that Wayne Wilkerson is not an insured under the terms and conditions of the automobile liability policy issued by appellee Travelers Insurance Company to appellee Gwendolyn Hall.
Facts and Procedural History
On May 16, 1987, Wayne Wilkerson was involved in a serious one-vehicle automobile accident in Stroudsburg, Pennsylvania while he was operating a vehicle owned by appellee Gwendolyn Hall. Susan Kilmer and Richard Schoch were both passengers in that vehicle and were seriously injured as a result of the accident.
At the time of the accident Wilkerson was residing at Hall's home in Effort, Pennsylvania along with Hall's son, Leo Yuspeh, who was Wayne Wilkerson's stepfather for the period he was married to Wilkerson's mother. In March of 1987, prior to leaving for France for an extended period of time pursuant to a research fellowship, Hall granted Wilkerson permission both to remain at her home in Effort and to operate her vehicle under certain prescribed conditions. The vehicle in question was insured under two insurance policies issued by Travelers, a general liability policy and a general umbrella policy. The general liability policy at issue on appeal provides, in pertinent part, as follows:
For YOUR car -- YOU, any RELATIVE, and anyone else using YOUR CAR if the use is (or is reasonably believed to be) with YOUR PERMISSION, are INSUREDS. . . .
In February, 1988, Hall and Travelers filed a declaratory judgment action in the United States District Court for the Middle District of Pennsylvania against Wilkerson, Kilmer and Schoch requesting that the court determine that, at the time of the accident, Wilkerson was not an "insured" under the terms of the liability policy covering Hall's vehicle. In January, 1989, Kilmer and Schoch filed two separate actions in the same court. One was in tort against Wilkerson and Hall seeking damages for personal injuries sustained during the accident; the second was a declaratory judgment action requesting the court to determine whether Wilkerson was an "insured" under Hall's policy at the time of the accident. The three actions were consolidated and a hearing was held before Chief Judge Conaboy on April 26, 1989. At that hearing the court heard testimony of several witnesses, and depositions and other evidence were submitted to the court.
Hall testified that she had informed Wilkerson that there were to be no drugs in the car. She further instructed him: "alcohol is a drug like any other drug. No driving under the influence of mind altering drugs, including alcohol." App. at 23. Wilkerson testified that he could not remember if alcohol was specifically mentioned along with drugs, but that it was his understanding that Hall's definition of drugs included alcohol. App. at 31. The relevant question and answer were:
Q. When you had the conversation with Gwendolyn and she said, don't drive and do drugs, was it your understanding that within her definition of drugs, she included alcohol?
A. I would have to say, yes.
The district court found that Wilkerson was not an "insured" under Hall's policy because his consumption of alcohol on the evening of the accident was a violation of the limited permission to use the vehicle that was given to him by Hall. The district court reasoned that under Pennsylvania law coverage will be extended under a permissive use clause if the driver's deviation from the named insured's permission is slight and inconsequential, but coverage is not extended if that deviation is substantial. The court concluded that Wilkerson's use of alcohol was a substantial deviation from the very specific and limited conditions under which Hall allowed him to operate her vehicle.
Wilkerson filed a post trial motion to amend the judgment under Federal Rule of Civil Procedure 59 or in the alternative for a new trial. This was denied by the district court and this appeal followed.
We must first consider the question of our appellate jurisdiction. Because the judgment appealed from was entered in only two of the three cases that were consolidated in the district court, the question arises whether we are presented with a final order under 28 U.S.C. § 1291. At the time of this appeal, the third case, Kilmer and Schoch's tort action against Hall and Wilkerson, was set for trial several months in the future. At oral argument, this court asked counsel to ascertain whether the district court would certify the appeal under Fed. R. Civ. P. 54(b), so that it would not be necessary for us to reach the issue of the effect of the consolidation on our jurisdiction. The district court declined to certify the judgment as final, reasoning that the liability of Hall and Wilkerson to the tort plaintiffs remained open.*fn1 Thus we must determine our jurisdiction in the face of the consolidation.
In Bergman v. City of Atlantic City, 860 F.2d 560, 566 (3d Cir. 1988), we held, in the face of a circuit split on the issue, that we would apply a case-by-case approach to the appealability of an order finally disposing of less than all consolidated cases. We noted that we had considered a similar issue in Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977), where we held that a Rule 54(b) certification was sufficient to give this court jurisdiction over an order granting summary judgment for some but not all defendants in one of two consolidated actions. Nonetheless, we held in Bergman that appeal from the summary judgment order on behalf of the defendants in one of two consolidated actions was not final for the purposes of section 1291, primarily because the actions had been consolidated for all purposes of discovery and trial.
Among the criteria we considered in deciding whether the orders in Bergman and Bogosian were appealable were whether the cases were in the same forum with the same judge; whether the complaints and defendants were identical; whether plaintiffs had the same counsel in both actions; and, as noted, whether ...