MICHELLE PUCKETT; WILLIAM PUCKETT; WILLIAM PUCKETT AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BRYAN E. PUCKETT v. NATIONWIDE FIRE INSURANCE COMPANY; KAREN MURPHY; GEORGE MURPHY
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RENDERED: MARCH 18, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-000164-MR
MICHELLE PUCKETT; WILLIAM
PUCKETT; WILLIAM PUCKETT AS
PERSONAL REPRESENTATIVE OF
THE ESTATE OF BRYAN E. PUCKETT
v.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 00-CI-02471 & 00-CI-03051
NATIONWIDE FIRE INSURANCE
COMPANY; KAREN MURPHY;
GEORGE MURPHY
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: TACKETT AND VANMETER, JUDGES; MILLER, SENIOR JUDGE1
MILLER, SENIOR JUDGE:
This is a wrongful death and declaratory
judgment action in which Michelle Puckett and William Puckett,
and William Puckett as Personal Representative of the Estate of
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Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110.(5)(b) of the Kentucky Constitution and
KRS 21.580.
Bryan E. Puckett, appeal from an order of the Fayette Circuit
Court granting summary judgment to appellee Nationwide Fire
Insurance Company (Nationwide) pursuant to Ky. R. Civ. P. (CR)
56.03.
The appellants contend that the trial court erroneously
determined that their homeowner’s policy did not apply to an
off-premises incident which resulted in Bryan’s death by
hyperthermia as a result of being left in a motor vehicle by
Karen Murphy on a hot July day.
Because the circuit court
properly concluded that the homeowner’s policy issued by
Nationwide to Karen and George Murphy does not cover the
incident, we affirm.
The factual background of the case is as follows.
On
July 13, 1999, Karen Murphy was babysitting eleven-month-old
Bryan Puckett.
In addition to Bryan, Karen was also caring for
her own children, one-year-old Jason Murphy and four-year-old
Rachel Murphy.
At approximately 2:00 p.m., Karen arrived at the Once
Upon A Child consignment shop, a second-hand children’s clothing
store located in a shopping center off Richmond Road in
Lexington.
Karen went into the store to shop, taking Rachel
with her and leaving Bryan and Jason locked in the car with the
windows rolled up.
The outside temperature was approximately 81
degrees Fahrenheit. Karen and Rachel remained in the store for
approximately two hours.
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At approximately 4:00 p.m., nearly two hours after she
had left Brian and Jason locked in the car, Karen left the
store.
Shortly thereafter, other persons realized that Bryan
and Jason were locked in Karen’s car.
Someone notified a
passing deputy sheriff of the situation.
The deputy broke the
window to gain access to the children, and paramedics were
called to the scene.
When Bryan was removed from the vehicle, he was
unconscious.
Expert testimony revealed that the estimated
temperature inside the vehicle had reached levels of between 145
and 165 degrees Fahrenheit during the time Bryan and Jason were
locked in the vehicle.
Brian was transported to the hospital,
where he died of hyperthermia (a.k.a. heat stroke).
Jason was
also taken to the hospital, where he recovered.
On September 14, 1999, Karen was indicted for seconddegree manslaughter on the basis that she wantonly caused the
death of Bryan Puckett; second-degree criminal abuse on the
basis that she wantonly placed Jason Murphy in a situation that
might cause serious physical injury; and endangering the welfare
of a minor on the basis that she failed to exercise diligence in
the control of Rachel Murphy to prevent her from becoming
neglected or dependent.
The trial was held in August 2000.
guilty but mentally ill of all charges.
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Karen was found
She was sentenced to
ten years' imprisonment on the manslaughter conviction, three
years' imprisonment on the criminal abuse conviction, to run
consecutively with the manslaughter sentence, and twelve months'
imprisonment on the endangering the welfare of a minor
conviction, to run concurrently, for a total sentence of
thirteen years.
Civil action number 00-CI-2471 commenced when, on July
6, 2000, William and Michelle Puckett filed a complaint in
Fayette Circuit Court seeking damages for the wrongful death of
Bryan Puckett, and associated loss of consortium, against Karen
and George Murphy.
Civil action 00-CI-3051 commenced when, on
August 21, 2000, Nationwide filed an action seeking a
declaration of rights pursuant to Kentucky Revised Statutes
418.040 that any liability for damages incurred by the Murphys
as a result of Bryan’s death was not covered under a homeowner’s
policy issued by Nationwide to the Murphys.
The cases were
subsequently consolidated.
On December 24, 2003, the trial court entered an order
granting summary judgment to Nationwide pursuant to CR 56.03.
This appeal followed.
Summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
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any material fact and that the moving party is entitled to a
judgment as a matter of law."
CR 56.03. "The record must be
viewed in a light most favorable to the party opposing the
motion for summary judgment and all doubts are to be resolved in
his favor."
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807
S.W.2d 476, 480 (Ky. 1991).
"The standard of review on appeal
of a summary judgment is whether the trial court correctly found
that there were no genuine issues as to any material fact and
that the moving party was entitled to judgment as a matter of
law."
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
Interpretation of an insurance policy is a question of
law which we review de novo.
(Ky. App. 1998).
Cinelli v. Ward, 997 S.W.2d 474
The goal of any court in interpreting a
contract is to ascertain and to carry out the original
intentions of the parties, Wilcox v. Wilcox, 406 S.W.2d 152, 153
(Ky. 1966), and to interpret the terms employed in light of the
usage and understanding of the average person.
Fryman v. Pilot
Life Insurance Co., 704 S.W.2d 205, 206 (Ky. 1986).
Unless the
terms contained in an insurance policy have acquired a technical
meaning in law, they "must be interpreted according to the usage
of the average man and as they would be read and understood by
him in the light of the prevailing rule that uncertainties and
ambiguities must be resolved in favor of the insured."
Id.;
Stone v. Kentucky Farm Bureau Mut. Ins. Co., 34 S.W.3d 809, 811
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(Ky. App. 2000).
However, under the "doctrine of reasonable
expectations," an insured is entitled to all the coverage he may
reasonably expect to be provided according to the terms of the
policy.
Hendrix v. Fireman's Fund Ins. Co., 823 S.W.2d 937, 938
(Ky. App. 1991); Woodson v. Manhattan Life Ins. Co., 743 S.W.2d
835, 839 (Ky. 1987).
Further, a policy of insurance is to be construed
liberally in favor of the insured and if, from the language,
there is doubt or uncertainty as to its meaning, and it is
susceptible to two interpretations, one favorable to the insured
and the other favorable to the insurer, the former will be
adopted.
St. Paul Fire & Marine Ins. Co. v. Powell-Walton-
Milward, Inc., 870 S.W.2d 223, 227 (Ky. 1994).
But, in the
absence of ambiguities or of a statute to the contrary, the
terms of an insurance policy will be enforced as drawn.
Osborne
v. Unigard Indemnity Co., 719 S.W.2d 737, 740 (Ky. App. 1986);
Woodard v. Calvert Fire Ins. Co., Ky., 239 S.W.2d 267, 269 (Ky.
1951).
Although restrictive interpretation of a standardized
“adhesion” contract is not favored, neither is it the function
of the courts to make a new contract for the parties to an
insurance contract.
Moore v. Commonwealth Life Ins. Co., 759
S.W.2d 598, 599 (Ky. App. 1988).
Section II of the Murphys’ homeowner’s policy provides
that the company “will pay damages the insured is legally
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obligated to pay due to an occurrence.”
An “occurrence” is
defined to include “bodily injury . . . resulting from an
accident[.]”
“Bodily injury” is defined to include death.
Pursuant to these provisions, the appellants contend that the
Murphys’ homeowner’s policy applies to the incident which
resulted in Bryan’s death.
However, the Section II exclusion provisions of the
policy provide that “Coverage E – Personal Liability . . .
do[es] not apply to bodily injury or property damage: . . .
arising out of the ownership, maintenance, or use of . . . a
motor vehicle owned or operated by, or rented or loaned to an
insured.”
We believe that this exclusion provision is
dispositive of the issue at hand.
The terms at issue have previously been interpreted in
the context of automobile insurance coverage.
In this regard,
we believe that Insurance Co. of North America v. Royal Indem.
Co., 429 F.2d 1014, 1017 (6th Cir. 1970) provides a correct
statement of the interpretation of these terms.
“The words
'arising out of * * * use' in an automobile liability insurance
policy, are broad, general and comprehensive terms meaning
'originating from,' or 'having its origin in,' 'growing out of'
or 'flowing from[.]' Id. at 1017 -1018 (citing Carter v.
Bergeron, 102 N.H. 464, 160 A.2d 348 (1960); Schmidt v.
Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181 (1944)).
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All
that is required to come within the meaning of the words
'arising out of the * * * use of the automobile' is a causal
connection with the accident.
Id. at 1018 (citing Richland Knox
Mut. Ins. Co. v. Kallen, 376 F.2d 360 (6th Cir. 1967),
Manufacturers Cas. Ins. Co. v. Goodville Mut. Cas. Co., 403 Pa.
603, 170 A.2d 571 (Pa. 1961); and 89 A.L.R.2d 150 (1963)).
Pursuant to the foregoing, we interpret the automobile
exclusion as applying to the July 13, 1999, incident.
Bryan
suffered the bodily injury at issue (i.e., death due to
hyperthermia) as a result of the high temperatures produced
within the passenger compartment of the Murphys’ motor vehicle.
The expert testimony at the criminal trial established that
those excessive temperatures were produced as a result of the
physical properties of the vehicle.
This establishes a causal
relationship between the motor vehicle and Bryan’s injury.
Further, Karen used the motor vehicle as
transportation to reach the shopping center, and it was her
intention to use the vehicle for transportation upon her
departure from the location.
In the meantime, Karen was “using”
the motor vehicle as a location of repose for Bryan and Jason
while she shopped.
Hence, Bryan’s injury had its origin in
Karen’s use of the vehicle the afternoon of July 13, 1999.
Within the ordinary meaning of the word, Karen was
clearly “using” the vehicle at the time Bryan suffered his
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bodily injury.
Moreover, because the physical properties of the
vehicle resulted in the excessive temperatures, Bryan’s bodily
injury arose from the use of the vehicle.
In summary, there is a direct nexus between Bryan’s
bodily injury and Karen’s use of the motor vehicle in which the
injury occurred.
As such, we interpret the July 13, 1999,
incident as being specifically excluded under the Murphys’
homeowner’s policy.
Moreover, we believe this exclusion extends to the
Pucketts’ claim against George Murphy for failing to warn them
about Karen’s mental health disorders.
With respect to this
claim, the fact remains that the bodily injury arose from the
use of a motor vehicle, and such occurrences are specifically
excluded under the Murphys’ homeowner’s policy.
For the foregoing reasons the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Heidi Engel
Winchester, Kentucky
D. Craig Dance
Lexington, Kentucky
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