Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CONTINENTAL INS. CO. v. DAVIS

May 10, 1999

CONTINENTAL INSURANCE CO.
v.
STEWART A. DAVIS, ET AL.



The opinion of the court was delivered by: O'neill, District Judge.

ORDER

Plaintiff Continental Insurance Company brings this action for declaratory judgment pursuant to 28 U.S.C. § 2201 to determine a question in actual controversy between the parties.*fn1 More specifically, plaintiff seeks a declaration that it has no duty under an insurance policy issued to Stewart and Nancy Davis to defend or indemnify the estate of their son, Brian Davis, for liability arising out of an automobile accident that occurred on April 25, 1997.

I have jurisdiction pursuant to 28 U.S.C. § 1332. Now before me are plaintiff's motion for summary judgment, defendants' motions for summary judgment, and the responses thereto. For the following reasons I will deny plaintiff's motion and grant those filed by defendants. A declaratory judgment stating that plaintiff has a duty to defend and indemnify the estate of Brian Davis for liability arising out of the April 1997 automobile accident will be entered for defendants and against plaintiff.

I.

The facts of this case are not in dispute. On April 25, 1997, Brian Davis was involved in an automobile accident while driving a 1989 Mazda MX-6 which was owned by him and insured under a policy issued to him by Progressive Insurance Company. This accident caused the deaths of Brian Davis, Jacob S. Kerchner, Jocelyn Scholz, and Julie Searfoss and caused serious bodily injuries to Matthew Nelson.

At the time of the accident, Brain Davis lived with his parents, Stewart and Nancy Davis. Brian Davis did not have a checking account so Stewart Davis had advanced the funds for his son's purchase of the Mazda MX-6 in September 1995. He also obtained a car loan from First Union to help finance that purchase because the bank would not issue a loan to Brian. In addition, Stewart Davis used his personal checking account to make the insurance premium payments on behalf of his son and the car loan payments for which he himself was legally responsible. Brian Davis reimbursed his father for these expenses.

Stewart and Nancy Davis would occasionally operate the Mazda, primarily to move it in and out of the driveway. Stewart Davis also helped his son work on the vehicle on several occasions and would sometimes drive the Mazda for pleasure.

Prior to the accident Stewart and Nancy Davis had purchased primary motor vehicle liability coverage and optional excess liability coverage as part of a comprehensive insurance policy from plaintiff. It is undisputed that the primary motor vehicle liability endorsement of that policy does not provide coverage for Brian Davis with regard to the Mazda MX-6. That automobile was not listed as a covered vehicle in the primary motor vehicle liability endorsement.

It is also undisputed that, as a family member of the named insureds, Brain Davis was a "covered person" under the optional excess liability endorsement. However, in paragraph 12 the endorsement excludes from coverage any bodily injury or property damage resulting from the use of any motor vehicle other than, among others, "a motor vehicle [the named insureds] maintain or use which is owned by a family member and not shown in the Coverage Summary." In addition, paragraph 20 excludes from coverage

Liability of:

a. anyone; or

b. anyone while maintaining or using vehicles;

c. arising out of property;

  excluded from coverage by endorsement(s) attached to
  this policy or to an ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.