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