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04/02/93 PERCY BYRD v. ALLSTATE INSURANCE COMPANY

April 2, 1993

PERCY BYRD, APPELLANT
v.
ALLSTATE INSURANCE COMPANY, ET AL, APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Motions Judge)

Before Ferren, Farrell and King, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge: Appellant Percy Byrd appeals from the trial court's grant of summary judgment in favor of appellee Allstate Insurance Company ("Allstate"), under Super. Ct. Civ. R. 56(c). In his complaint, appellant sought recovery from Allstate, appellant's insurer, claiming Allstate wrongfully refused to pay damages for injuries received by appellant while driving his employer's automobile. The injuries were caused by the negligence of Curtis Brown, an uninsured motorist. Finding no genuine issue as to any material fact, we conclude that the trial court properly granted summary judgment in favor of Allstate.

I.

On November 18, 1987, appellant was driving a vehicle owned by his employer, the District of Columbia Department of Corrections, when he was involved in a collision with an automobile driven by Curtis Brown, who was uninsured. Appellant suffered bodily injuries and was unable to work for a period of time. At the time of the accident, appellant was insured with Allstate for his personally owned vehicle. Appellant was a resident of Maryland and the policy was issued in that state. The policy covered appellant for losses caused by uninsured drivers. The policy also provided coverage to appellant when he was driving vehicles not owned by him, but it specifically excluded any non-owned vehicle that was "furnished for the regular use of [the insured] or any resident relative." When Allstate denied coverage, appellant brought this action against Allstate for breach of contract relating to the uninsured motorist coverage, and against Curtis Brown for negligence.

Allstate moved for summary judgment contending that the language excluding vehicles furnished for the insured's regular use was clear and unambiguous. Allstate also maintained that appellant's deposition, in which he testified that the vehicle involved in the collision was not owned by him and was available to him whenever he needed it for his occupational duties, clearly established that the accident in question was excluded from coverage under the policy provision quoted above. Accordingly, Allstate maintained it was entitled to judgment as a matter of law.

Appellant was employed as a counselor with the District of Columbia Department of Corrections, where he worked at a halfway house. In that capacity, he had access to a vehicle owned by the District and kept at the halfway house where appellant worked. According to his deposition testimony, appellant was required to sign-out the vehicle before using it and was not provided with his own set of keys. He was, however, permitted to use the vehicle for any purpose related to his employment. Appellant testified that he used the vehicle approximately twice a week. *fn1 In his brief in this court, appellant acknowledges that "he was fairly free to use the vehicle if available for official use."

Appellant's affidavit in opposition to the motion for summary judgment also set forth the nature of appellant's use of and access to the vehicle. In it he swore, inter alia,, that: (1) his use of the vehicle varied depending on his need; (2) his use was for "certain situations that might come up at the halfway house;" (3) it was impossible to anticipate in advance when he might be using the vehicle, since he used the vehicle, for example, if a resident needed to be transported for medical assistance; and (4) his use was not exclusive, i.e., other employees were also permitted to use the vehicle for official purposes.

II.

A motion for summary judgment is properly granted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Super. Ct. Civ. R. 56(c). *fn2 "In reviewing a grant of summary judgment, this court conducts an independent review of the record." (Katressia) Smith v. Union Labor Life Ins. Co., 620 A.2d 265 (D.C. February 19, 1993) (citations omitted). The standard of review on appeal is identical to the trial court's standard; we will affirm the entry of summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Holland v. Hannan, 456 A.2d 807, 814 (D.C. 1983).

Allstate, as the moving party, has the burden of demonstrating the absence of any genuine issue of material fact, and we must give appellant, the party opposing summary judgment, the benefit of all favorable inferences that can be drawn from the evidence. Brown v. General Motors Acceptance Corp., 490 A.2d 1125, 1126 (D.C. 1985); Holland, supra, 456 A.2d at 815. Having reviewed the record and the applicable case law, we conclude, as did the trial court, that there is no genuine issue as to any material fact, and that Allstate is entitled to judgment as a matter of law.

Appellant's policy with Allstate provided coverage to him while he was driving a non-owned vehicle if the vehicle was not "furnished for the regular use of or any resident relative." Allstate argues that based upon the relevant authority, the non-owned vehicle driven by appellant at the time of the accident was furnished for appellant's regular use and, therefore, coverage is excluded under the Allstate policy.

The parties agree that Maryland law controls interpretation of the policy provision. See supra note 2. Before reviewing in detail the Maryland authority, we note that the general purpose of a contract provision exempting non-owned vehicles which are furnished for the insured's regular use "is to give coverage to the insured while engaged in the only infrequent or merely casual use of an automobile other than the one described in the policy, but not to cover him against personal liability with respect to his use of another automobile which he frequently uses or has the opportunity to do so." Winterwerp v. Allstate Ins. Co., 277 Md. 714, 357 A.2d 350, 353 (Md. 1976) (citing Aler v. Travelers Indem. Co., 92 F. Supp. 620, 623 (D. Md. 1950)).

We also note that where contract language is not ambiguous, summary judgment is appropriate because "a written contract duly signed and executed speaks for itself and binds the parties without the necessity of extrinsic evidence." Holland, supra, 456 A.2d at 815. We need not deem a contract ambiguous merely because the parties do not agree on the interpretation of the contract provision in question. Sacks v. Rothberg, 569 A.2d 150, 154-55 (D.C. 1990) (citations omitted); Holland, supra, 456 A.2d at 815. Whether a contract is ambiguous is a question of law which we review de novo. Sacks, supra, 569 A.2d at 154 (citing Dodek v. C.F. 16 Corp., 537 A.2d 1086 (D.C. 1988)). Maryland courts have addressed contract language nearly identical to that contained in the policy in the instant case and have concluded that the provisions were not ambiguous. See, e.g., Winterwerp, supra, 357 A.2d at 352-53 (contract provision containing the terms "furnished or available for the regular use of [] the named insured" is not ambiguous); Allstate Ins. Co. v. Humphrey, 246 Md. 492, 229 A.2d 70, 72 (Md. 1967) (the phrase "not regularly furnished for use" is not ambiguous). Based on that authority, we conclude that the terms of the policy in this case are also not ambiguous and therefore should not be strictly construed against ...


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