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NATIONWIDE MUT. INS. CO. v. SHOEMAKER

June 11, 1997

NATIONWIDE MUTUAL INSURANCE COMPANY
v.
ROBERT SHOEMAKER, Administrator of the Estate of BRYNN SHOEMAKER, deceased, et al.



The opinion of the court was delivered by: POLLAK

 June 11, 1997

 Pollak, J.

 Nationwide Mutual Insurance Company ("Nationwide"), the plaintiff in this declaratory judgment action, has filed a motion seeking summary judgment and a declaration that its policy does not provide automobile liability coverage for the accident at issue in Laing v. Robert Shoemaker, Administrator of the Estate of Brynn Shoemaker, et al., Civ. No. 96-4831, which case is also before this court. Defendant Thomas G. Laing has filed a response opposing the Nationwide's motion. Defendant Joann H. Sizemore, administratrix of the estate of Joseph Sizemore, has filed both a response opposing the motion and a cross-motion for summary judgment seeking a declaration that Nationwide's policy does provide coverage. *fn1"

 Because the use of the car in this case falls within an exception to coverage in the policy in question, Nationwide's motion for summary judgment will be granted, and Sizemore's motion will be denied.

 I. Background

 The facts of this case are in relevant part uncontested. On August 8, 1995, Brynn Shoemaker and Joseph Sizemore were killed, and Thomas Laing was injured, when the 1995 Plymouth Neon which Shoemaker was driving, and in which Sizemore was a passenger, crossed the center line and struck an oncoming vehicle driven by Laing. The Neon was owned by Brynn Shoemaker's grandmother, Gertrude, who had insured it under a policy issued by Old Guard Mutual Insurance Company. That policy contained a single limit of liability of $ 300,000.

 At the time of the accident, Brynn Shoemaker was living with her parents, Nellie and Robert Shoemaker, who were at that time named insureds under an automobile liability policy issued by Nationwide which provided policy limits of $ 250,000 per person and $ 500,000 per occurrence. The policy contained language which provided that the

 
insurance also applies to certain other motor vehicles as follows:
 
3. a motor vehicle owned by a non-member of your household . . .

 Nationwide's Century II Auto Policy, Sizemore Mem., exh. C at 7-8. The policy explicitly excluded coverage, however, if the vehicle was "furnished to you or a relative for regular use." Id. at 8. The term "regular use" was not defined in the policy except in the statement that "furnished for regular use does not include a motor vehicle rented from a rental company for less than 28 days." Id.

 Brynn Shoemaker had returned from a four-month trip to Mexico in mid-July, at which time she began using her grandmother Gertrude's Neon. Gertrude Shoemaker apparently preferred not to leave her house during "hot weather," Sizemore Mem., exh. B. at 12, and so allowed her granddaughter to use her car. For the first three or four days, Brynn returned the car to her grandmother's house each day. Because of the inconvenience of driving Brynn home after she returned the car, however, Gertrude Shoemaker decided to let Brynn keep the car at her parents' house, and to have Brynn pick her up and drive her when she needed to go out. Brynn proceeded to use the car on a daily basis, employing her grandmother's spare set of keys. This practice continued for approximately three weeks, until the accident on August 8.

 The parties do not dispute that Gertrude intended to reclaim the car once the "hot weather" ended. Indeed, Gertrude purchased another car to replace the Neon after the accident.

 On July 8, 1996, Thomas Laing filed an action seeking damages for injuries alleging arising from the accident. See Laing v. Robert Shoemaker, Administrator of the Estate of Brynn Shoemaker, et al., Civ. No. 96-4831. On July 31, 1996, Nationwide filed this declaratory judgment action to determine whether it is obligated to provide coverage for the matters which are the subject of the action filed by Laing. Nationwide has now moved for summary judgment on the declaratory claim. Defendant Joann Sizemore has cross-moved for summary judgment.

 This court has jurisdiction over the subject matter pursuant to 28 U.S.C. § 1332. Plaintiff Nationwide is a corporate citizen of Ohio. Apart from Thomas Laing, who is a citizen of Delaware, the defendants are citizens of Pennsylvania. There is, therefore, complete diversity of citizenship among the parties. In addition, the amount in controversy exceeds $ 50,000, as required by 28 U.S.C. § 1332(a) as of the time the complaint was filed in July 1996. The action for declaratory judgment is properly brought pursuant to 28 U.S.C. §§ 2201, 2202.

 II. Discussion

 A court may, of course, grant a motion for summary judgment only where there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All evidence must be construed in the light most favorable to the party opposing the motion. Joseph v. Hess Oil, 867 F.2d 179, 182 (3d Cir. 1989).

 "Generally, the proper construction of a policy of insurance is a matter of law which may properly be resolved by a court pursuant to a motion for summary judgment." Nationwide Mut. Ins. Co. v. Nixon, 453 Pa. Super. 70, 682 A.2d 1310, 1313 (Pa. Super. 1996) (quoting Frain v. Keystone Ins. Co., 433 Pa. Super. 462, 640 A.2d 1352, 1354 (Pa. Super. 1994)). This is especially true "when the language is clear and unambiguous," Nationwide Mut. Ins. Co. v. Nixon, 453 Pa. Super. 70, 682 A.2d 1310, 1313 (Pa. Super. 1996). When, however, the language of the policy is ambiguous, the inquiry may be one for the trier of fact; indeed, in the case of an ambiguous provision, the court must "focus its attention on the reasonable expectations of the insured." Id. (quoting Everett Cas. Mut. Ins. Co. v. Krawitz, 430 Pa. Super. 25, 633 A.2d 215 (Pa. Super. 1993)); see also Loomer v. M.R.T. Flying Service, Inc., 384 Pa. Super. 244, 558 A.2d 103, 105 (Pa. Super. 1989) (holding ambiguous provisions are to be interpreted so as to provide maximum coverage to the insured). In other words, if the "regular use" provision at issue in this case is determined to be ambiguous, then summary judgment for Nationwide would likely be inappropriate, and a trial or possibly even summary judgment for Sizemore would be in order. Accordingly, the inquiry turns first to the question whether the "regular use" provision is ambiguous. See Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1011 (3d Cir. 1980).

 A. Ambiguity


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