Opinion
C.A. No. 07C-04-001.
Date Submitted: February 19, 2008.
May 2, 2008.
Daniel P. Bennett, Esquire, Mintzer, Sarowitz, Zeris, Ledva Meyers, Wilmington, Delaware.
Brian T. McNelis, Esquire, Young McNelis, Dover, Delaware.
Bruce L. Hudson, Esquire, Law Office of Bruce L. Hudson, Wilmington, Delaware.
Stephen P. Casarino, Esquire, Casarino, Christman Shalk, Wilmington, Delaware.
Dear Counsel:
Pending before the Court are Plaintiff's Motion for Summary Judgment and Defendant State Farm Fire Casualty Co.'s Motion for Summary Judgment. For the reasons stated below, Defendant State Farm's Motion for Summary Judgment is denied and Plaintiff's Motion for Summary Judgment is granted.
Statement of Facts and Procedural History
On or about March 18, 2006, Defendant Adam Kubala a/k/a Adam Kubula ("Kubala") and Defendant Jordan Morrow were sitting in a vehicle owned and/or operated by Defendant Jordan Morrow. At some point while Kubala and Jordan Morrow were sitting in the stopped or parked car, Defendant Jordan Morrow's dog, Xavier, bit Kubala. As a result of this incident, Kubala suffered personal injuries. Kubala subsequently filed an action in the Superior Court in and for New Castle C o u n t y, against Defendant Jordan Morrow, as well as George Anne Murrow and Herbert J. Morrow, seeking compensation for these injuries. At all relevant times, the Morrow Defendants were insured by a policy of insurance issued by American International South Insurance Company ("American"). The policy provided coverage for "`bodily injury' or `property damage' for which any `insured' becomes legally responsible as a result of an auto accident." American Personal Auto Policy, Part A — Liabilty Coverage, ¶ A. The Morrow Defendants have sought defense and indemnity from American with respect to the New Castle County lawsuit.
Collectively, the Morrows shall be referred to as "the Morrow Defendants".
On April 2, 2007, American filed this action seeking declaratory relief from this Court; specifically, American asks the Court to declare that American has no obligation to defend and/or indemnify the defendants in the New Castle County action.
On December 28, 2007, American filed a Motion for Summary Judgment, asserting that there are no material facts in question and American is entitled to judgment as a matter of law. Also named as a Defendant in this action is State Farm Fire Casualty Company ("State Farm"), which was the Morrow Defendants' homeowner's insurance carrier at all times relevant. State Farm filed a Cross-Motion for Summary Judgment on January 4, 2008, asking this Court to declare that American is responsible for providing liability coverage to the Morrow Defendants.
Discussion Standard of Review
This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party has met its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of his or her case, summary judgment must be granted. Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. denied, 504 U.S. 912 (1992); Celotex Corp., supra. If, however, material issues of fact exist, or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, summary judgment is inappropriate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
In the event that parties file cross-motions for summary judgment, "the parties implicitly concede the absence of material factual disputes and acknowledge the sufficiency of the record to support their respective motions." Browning-Ferris v. Rockford Enters., 642 A.2d 820, 823 (Del.Super. 1993); see also Super. Ct. Civ. R. 56(h).
Merits
American argues that it is not responsible for the damages incurred as a result of the dog bite because its policy covers only damages arising out of an "auto accident". American asserts an auto accident did not occur because the Morrow Defendants' motor vehicle did not come in contact with anything.
On the other hand, State Farm cites 21 Del. C. § 2902 and alleges American is responsible for providing liability coverage related to an injury stemming from the dog bite, which took place in Defendant Jordan Morrow's automobile because the injury arose "out of the ownership, maintenance or use of" Defendant Morrows' vehicle. American responds that the dog bite did not arise out of the ownership, maintenance or use of the Defendants' vehicle.
"Auto Accident"
American's policy of insurance provides, "We will pay damages for `bodily injury' or `property damage' for which any `insured' becomes legally responsible because of an auto accident." Personal Auto Policy, Part A — Liability Coverage, ¶ A. "Auto accident" is not defined in the policy. When a contract is clear on its face, the Court will afford the language of the contract its plain and ordinary meaning. Universal Studios, Inc. v. Viacom, Inc., 705 A.2d 579 (Del.Ch. 1997).
Although the Delaware courts have not had the opportunity to define the term "auto accident", other jurisdictions have considered the issue. Texas courts have explicitly concluded the term "auto accident" is "plain and unambiguous" as a matter of law, State Farm Mut. Ins. Co. v. Peck, 900 S.W.2d 910, 913 (Tex.App. 1995), and others have implicitly concluded likewise. In Peck, the Texas Court of Appeals held, "We are persuaded that the ordinary and generally accepted meaning off the term `auto accident' refers to situations where one or more vehicles are involved in some type of collision or near collision with another vehicle, object, or person." Id. at 913 (citing Farmers Ins. Co. v. Grelis, 718 P.2d 812, 813 (Wash.Ct.App. 1986). The Supreme Court of New Hampshire has considered whether a dog bite sustained by a woman loading brochures into an automobile was considered an "auto accident". Lebroke v. United States Fid. Guar. Ins. Co., 769 A.2d 392, 393 (N.H. 2001). In concluding that the damages suffered by the victim were not covered by the insurance policy at issue, the court noted that it had previously declined to define the term "auto accident". Id. The court favorably cited Peck for the proposition that an "auto accident" requires, at the very least, the involvement of an automobile and that a dog biting a passenger while the car was in motion did not constitute an "auto accident". Id. at 394. Ultimately, the court concluded that the facts of the case before it did not constitute an "auto accident". Id.
If the sole issue in this case was whether the term "auto accident" encompassed the dog bite suffered by the victim in this case, that would be the end of it. However, Delaware law provides for statutory minimum insurance coverage. I next analyze the events at issue under 21 Del. C. § 2902.
21 Del. C. § 2902(b)(2)Pursuant to Delaware law, the owner of a motor vehicle is required to carry a policy of liability insurance that covers "loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of" such a motor vehicle. 21 Del. C. § 2902(b)(2). The parties agree that the Delaware courts have adopted a three part test for determining whether an incident arose out of the use of the ownership, maintenance, or use of a motor vehicle. In order for the incident to be considered as arising out of the ownership, maintenance, or use of a motor vehicle, the incident must satisfy all three prongs of the so-called " Klug test", which was adopted by the Delaware Supreme Court from a Minnesota Supreme Court case:
1) the vehicle was an "active accessory" in causing the injury — i.e., "something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury";
2) there was no act of independent significance that broke the causal link between use of the vehicle and the injuries inflicted; and
3) the vehicle was used for transportation purposes.Nationwide Gen. Ins. Co. v. Royal, 700 A.2d 130, 131-32 (Del. 1997) (citing Continental W. Ins. Co. v. Klug, 415 N.W.2d 876, 878 (Minn. 1987)) .
American argues that the dog bite does not satisfy any of the three prongs of the Klug test. After considering the facts of the case and the applicable case law, I conclude the motor vehicle was the "mere situs" of the injury and, for that reason, American's policy does not cover the injuries resulting from the dog bite.
In Royal, the Delaware Supreme Court concluded that injuries caused by a drive-by shooting did not arise out of the ownership, maintenance or use of a motor vehicle. The Court concluded that the incident did not satisfy the first prong of the Klug test. The Court later summarized its decision as follows:
In Royal, a case in volving a drive-by shooting, this Court determined that the vehicle was not an active accessory because the assailant's use of the vehicle was fortuitous, since the assailant would have attacked in any event, with or without a vehicle being involved. This court explained that the `vehicle was not an essential or even significant element that led to [the victim's] injuries'. . . .State Farm Mut. Auto. Ins. Co. v. Buckingham, 919 A.2d 1111, 1114 (Del. 2007) (internal citations omitted). The Court has recognized that case law from other jurisdictions may be instructive when considering whether coverage exists under the Klug test. Royal, 700 A.2d at 133; see also Sanchez v. American Indep. Ins. Co., 2005 WL 2662960, at *3 (Del. Oct. 17, 2005) . To that end, courts that have been called upon to decide whether a dog bite that occurs in a vehicle arises out of the ownership, maintenance or use of that vehicle have reached varying results. The common element among cases finding that a dog bite did not arise from the ownership, maintenance or use of an automobile is the view that "something about the vehicle itself or attachments to the vehicle must have caused the accident." Farmers Union Co-op. Ins. Co. v. Allied Prop. Cas. Ins. Co., 569 N.W.2d 436, 440 (Neb. 1997) (observing that the issue of whether a dog bite arises out of the ownership, maintenance or use of a motor vehicle is heavily dependent upon the facts of the case). "Generally, the fact that the vehicle is regularly used for transporting a dog is not enough to establish a causal connection if something about the vehicle itself did not contribute to the action of the dog biting someone." Id. Moreover, "[r]ecovery must be premised on something more than the fact that the vehicle was the location of the incident." Id. Applying these principles to the facts of the case before me, I conclude that there are no facts that support the conclusion that the vehicle was anything more than the site of the injury in this case. The Morrows' dog was merely sitting in the Morrows' vehicle when the vehicle was at rest when the bite occurred. Nothing about Jordan Morrow's use of the vehicle served to instigate the attack. This situation may be distinguished from cases where a causal connection was found; for example, where a taxi driver closed a car door on a dog's tail, provoking the dog to bite the victim. In that case, the Supreme Court of New Hampshire found the taxi driver's act of closing the car door was "part of using the automobile". Wilson v. Progressive N. Ins. Co., 868 A.2d 268, 276 (N.H. 2005).
Like the Delaware Supreme Court in Royal, I respect the settled principle that insurance contracts are liberally construed in favor of finding coverage. See Royal, 700 A.2d at 133. Nevertheless, I conclude that even a liberal interpretation of the phrase "arising out of the ownership, maintenance or use of [a] motor vehicle" does not warrant a finding of coverage in this case.
Conclusion
For the reasons set forth above, Plaintiff's Motion for Summary Judgment is granted and Defendant's Motion for Summary Judgment is denied.IT IS SO ORDERED.