Appeal from the Superior Court of the District of Columbia; Hon. Ricardo M. Urbina, Trial Judge
Before Ferren, Acting Chief Judge,* and Steadman, Associate Judge, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Gallagher
GALLAGHER, Senior Judge: Appellant seeks reversal of summary judgment denying his claim for uninsured motorist benefits against appellee, Nationwide Mutual Insurance Company (Nationwide). The trial court held that the uninsured motorist provision precluded appellant from recovering such benefits as he was operating his moped, a motor vehicle which was not listed in the policy at the time of the accident. Finding no error, we affirm.
The essential facts are not in dispute. On March 25, 1985, while driving his moped in the District of Columbia, appellant collided with an automobile driven by Mary Nelson Waldo, an uninsured motorist. At the time of the accident, appellant lived with his sister, Ms. Charman Taylor, whose personal vehicle was insured by appellee Nationwide. Ms. Taylor's auto insurance policy extended to relatives who lived in her household. After receiving personal injury protection benefits from appellee Nationwide, appellant filed a claim for uninsured motorist benefits which was subsequently denied by appellee. Appellee relied upon the following policy provision in its denial of appellant's claim:
Coverage does not apply: . . . 4. To you or your relatives living in your household while occupying a motor vehicle (other than a motor vehicle insured for Uninsured Motorists or Underinsured Motorists Coverage under this policy) owned by you or such relatives. . . .
This provision is found in Section I -- Uninsured Motorist Coverage, Coverage Exclusions of the personal vehicle policy.
Appellant filed suit against the Waldos *fn1 and appellee Nationwide in the Superior Court. Appellant claimed Nationwide breached its contract by denying his claim for uninsured motorist benefits. In response, Nationwide filed a motion for summary judgment claiming that appellant was not entitled to such benefits pursuant to the above coverage exclusion provision. The trial court concluded that the exclusion provision clearly precluded appellant from recovery and granted Nationwide's motion for summary judgment. Appellant contends that the trial court erred as the policy's exclusion provision relates to motor vehicles and the Compulsory/No-Fault Motor Vehicle Insurance Act of 1982 (No-Fault Act) *fn2 specifically excludes motorcycles *fn3 from its "motor vehicle" definition; and that therefore, the statutory definition of "motor vehicle" is controlling and the exclusion provision relied upon by Nationwide is against public policy as applied to appellant's case.
Summary judgment is appropriate when there are no material facts in dispute and it is clear that the moving party is entitled to judgment as a matter of law. Super. Ct. Civ. R. 56 (c) (1993). Once a moving party makes an initial showing, the opposing party must demonstrate that there is a genuine issue for trial. Smith v. WMATA, 631 A.2d 387, 390 (D.C. 1993). "'The requisite showing of a genuine issue for trial is predicated upon the existence of a legal theory which remains viable under the asserted version of the facts.'" Lee v. Jones, 632 A.2d 113, 115 (D.C. 1993) (quoting Smith, supra, 631 A.2d at 390). In determining whether a trial court's grant of a summary judgment motion was appropriate, this court conducts an independent review of the record. Id.
From this standpoint, we turn to the coverage exclusion provision of the insurance policy which was relied upon by the trial court in granting appellee's summary judgment motion. Initially, we note that the policy clearly states that uninsured motorist coverage is not provided to a person who occupies a motor vehicle which is owned by the insured or household relative, but not covered under the policy. The policy defines "motor vehicle" as a "land motor vehicle designed to be driven on public roads." Under the policy's definition, it would appear that appellant's moped is a motor vehicle and therefore, the coverage exclusion provision is enforceable against him. However, appellant asserts that the No-Fault Act's motor vehicle definition bars appellee Nationwide from applying its coverage exclusion provision to his moped. Appellant does not challenge the proposition that under the policy's definition, appellant's moped is a motor vehicle and therefore the coverage exclusion provision by its terms excludes him from coverage.
The statutory "motor vehicle" definition provides that
The term "motor vehicle" means any device propelled by an internal combustion engine, electricity, or steam . . . ...