AMERICAN PREMIER INSURANCE COMPANY v. LUCY M. DAVENPORT; JAMES DAVENPORT; ALAN L. ALSTON AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Annotate this Case
Download PDF
RENDERED: May 27, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001167-MR
AMERICAN PREMIER INSURANCE COMPANY
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 02-CI-003053
LUCY M. DAVENPORT; JAMES DAVENPORT;
ALAN L. ALSTON AND STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
American Premier Insurance Company (American)
appeals from orders, entered April 16, 2004, and June 9, 2004,
in the Jefferson Circuit Court determining that a motor vehicle
insurance policy issued by American provided coverage for claims
asserted against its insured, Alan L. Alston.
We affirm.
Lucy M. Davenport and James Davenport (collectively
referred to as the Davenports) filed a complaint in the
Jefferson Circuit Court alleging personal injury to Lucy as the
result of a May 15, 2001, automobile accident.
The Davenports
named the driver of the other vehicle, Alston, and State Farm
Mutual Automobile Insurance Company (State Farm) as defendants.
The vehicle driven by Alston was owned by his brother and his
girlfriend.
The Davenports asserted a claim against State Farm
for uninsured and/or underinsured motorist benefits.
American subsequently filed an Intervening Complaint
For Declaratory Relief.
American stated it had issued a policy
of automobile insurance to Alston, which was in effect at the
time of the accident.
American asserted, however, that policy
exclusions precluded coverage for the claims asserted by the
Davenports.
Specifically, American argued that the automobile
driven by Alston at the time of the accident was not covered
under his policy.
American sought a declaration that its policy
did not provide coverage for any claims that could be asserted
against its insured as a result of the subject accident.
The Davenports and American both filed motions for
summary judgment on the issue of whether American’s policy
provided coverage for the claims asserted.
By order entered
February 13, 2004, the circuit court denied both motions.
Davenports subsequently filed a motion for reconsideration.
The
By
order entered April 16, 2004, the circuit court vacated and set
aside its February 13, 2004, order and granted the Davenports’
-2-
motion for partial summary judgment.
Therein, the circuit court
held that the policy issued by American did provide coverage for
the claims asserted by the Davenports.
The partial summary
judgment was made final and appealable on June 9, 2004, by an
entry of an order that included Ky. R. Civ. P. 54.02 language.
This appeal follows.
The standard of review on appeal from 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.”
Scrifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996).
Since
only issues of law are involved, our review is de novo.
Hallahan v. The Courier Journal, 138 S.W.3d 699 (Ky.App. 2004).
The insurance policy American issued to Alston named
him as the insured and identified a 1988 Cadillac Deville and a
1968 Oldsmobile Cutlass under the “Description of Owned
Automobiles.”
The American policy defined a “covered auto” as
follows:
Any auto or trailer you do not own while
used as a temporary substitute for any other
vehicle described in the definition, when
withdrawn from use because of its breakdown,
repair, servicing, loss or destruction,
provided its operation is with the
permission of the owner and is within the
scope of such permission.
The policy also contained the following exclusion:
-3-
We do not provide Liability Coverage:
. . .
6.
For the ownership, maintenance or use
of any vehicle, other than your covered
auto, which is owned by or furnished or
available for the regular use of you or
any family member.
It is undisputed that at the time of the accident
Alston was driving a Buick Skylark owned by Alston’s brother and
girlfriend.
The issue presented is whether the Buick Skylark
was a “temporary substitute” for Alston’s own vehicle and thus,
was a “covered auto” under the policy, or whether the Buick was
“furnished or available” for Alston’s “regular use” and thus,
excluded from coverage under the policy.
The interpretation of an insurance policy is a
question of law for the Court.
(Ky.App. 1998).
Cinelli v. Ward, 997 S.W.2d 474
“We review questions of law de novo and, thus,
without deference to the interpretation afforded by the circuit
court.”
Id. at 476.
Furthermore, it is well-established that
an exclusion in an insurance policy is to be interpreted
narrowly, and all questions are to be resolved in favor of the
insured.
St. Paul Fire & Marine Ins. Co. v. Powell-Walton-
Milward, Inc., 870 S.W.2d 223 (Ky. 1994).
American contends the Buick Skylark was furnished or
available for Alston’s regular use.
American asserts that
Alston’s testimony revealed that his brother had given Alston
-4-
the keys two or three days before the accident because the
brother was going to prison.
American asserts that Alston had
free use of the Buick at the time of the accident.
As such,
American contends the exclusion applies and no coverage was
provided by the policy.
The Davenports assert the testimony clearly
established Alston intended to use the vehicle as a “temporary
substitute” for his own vehicle.
The Davenports point
specifically to Alston’s response when asked why he was driving
the Buick Skylark on the day of the accident.
as follows: “My vehicle was broke down.
Alston responded
I have two vehicles:
One was being serviced - – I was getting ready to get it
serviced; the other was broke down.”
Alston further testified
that one of his vehicles was repaired and running a few days
after the accident.
We believe the evidence clearly establishes that
Alston’s use of the Buick was as a “temporary substitute” for
his own vehicle and that it was not “furnished or available” for
his “regular use.”
Alston’s own testimony, which was unrefuted,
revealed that his two vehicles were not in working condition and
that one of the two was repaired a few days following the
accident.
Thus, we conclude the circuit court properly
determined that the insurance policy American issued to Alston
provided coverage for the claims asserted by the Davenports
-5-
arising from Alston’s use of the Buick owned by his brother and
girlfriend.
As such, the circuit court properly granted the
Davenports’ motion for partial summary judgment.
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Bradley D. Harville
Louisville, Kentucky
John R. Wilson
Louisville, Kentucky
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.