Congdon v. Automobile Club Insurance Co.

Congdon v. Automobile Club Insurance Co. (2001-476); 174 Vt. 586;
816 A.2d 504

[Filed 08-Nov-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-476

                             OCTOBER TERM, 2002


  Lucas Congdon	                       }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Washington Superior Court
                                       }	
  Automobile Club Insurance Company    }
                                       }	DOCKET NO. 609-11-98 Wncv

                                                Trial Judge: Alan W. Cheever

             In the above-entitled cause, the Clerk will enter:

       Plaintiff Lucas Congdon appeals a grant of summary judgment in favor
  of defendant, the Automobile Club Insurance Company, in which the
  Washington Superior Court rejected plaintiff's contentions that the
  Automobile Club Insurance policy (the AAA policy) was ambiguous, and that
  he qualified as an "insured" under the policy held by his mother's
  "domestic partner."  In the absence of any ambiguity in the policy
  provisions defining the covered parties, we hold that the AAA policy should
  not be construed to extend coverage to the son of the policy holder's
  "domestic partner," and accordingly, affirm.

       In July 1996, two days after registering his recently purchased Suzuki
  motorcycle, plaintiff was struck by an uninsured motorist at the
  intersection of Routes 302 and 2 in Montpelier.  At the time of his
  accident, plaintiff was 18 years old and resided in a home that his mother,
  Jane Werley, co-owned with Paul Boffa.  Boffa was the named insured on a
  policy issued by defendant insurance company.  

       As there are no facts in dispute, the question presented to this Court
  is whether plaintiff was insured under the AAA policy by virtue of his
  familial relationship with his mother, who was listed as an insured driver
  in the Declarations under Boffa's AAA policy.  Alternatively, plaintiff
  argues that the policy's definition of "family member," which includes ward
  or foster child, should be extended to include plaintiff, based on his
  mother's long relationship with Paul Boffa.  	
       					
       In reviewing a grant of summary judgment, this Court relies on the
  same standard applied by the trial court, and will affirm that court's
  decision "if there are no genuine issues of material fact and the moving
  party is entitled to judgment as a matter of law."  Granger v. Town of
  Woodford, 167 Vt. 610, 611, 708 A.2d 1345, 1346 (1998) (mem.); V.R.C.P.
  56(c).  In making this determination, we regard all allegations of the
  nonmoving party to be true as long as they are supported by admissible
  evidence, and the non-moving party is also afforded all reasonable doubts
  and inferences.  United Servs. Auto. Ass'n v. Swann, 170 Vt. 302, 304, 749 A.2d 23, 25 (2000).   
 
       Vermont adheres to the maxim that any ambiguity in an insurance policy
  must be construed in favor of the insured.  Garneau v. Curtis & Bedell,
  Inc., 158 Vt. 363, 367, 610 A.2d 132, 134 

 

  (1992).  The existence of an ambiguity is not determined simply by the
  presence of a dispute, but rather on whether a provision is reasonably
  subject to different interpretations.  In the absence of any ambiguity, a
  policy is a contract, and its terms should be applied based on their plain
  meaning and the intent of the parties as it is revealed by that meaning. 
  Id.  Paul Boffa, the domestic partner of plaintiff's mother, was named as
  the insured party in the Declarations.  Plaintiff's mother is listed as an
  "insured driver" on a separate page.  By its terms, and under 23 V.S.A. §
  941(a), the AAA policy extended coverage for personal or property injury
  sustained in an accident caused by the owner or operator of an uninsured
  motor vehicle to an "insured person."  The policy further defines "insured"
  as "you, or any 'family member.' "  Family member is defined as "a person
  related to you by blood, marriage or adoption who is a resident of your
  household.  This includes a ward or foster child."  

       According to the AAA policy, " you" includes the "named insured"
  listed in the Declarations, and the resident spouse of the named insured. 
  Boffa's name is in the space beneath the Declarations line specifying the
  named insured.  The parties agree that plaintiff's mother and Paul Boffa
  were not married to each other.  The uninsured motorist provision was not
  intended by the parties, as evidenced by the plain meaning of the policy,
  to extend to family members of an insured driver when that driver is not
  the named insured.  Such coverage was expressly limited to family members
  of the named insured, Paul Boffa.

       Plaintiff also argues that he should be considered a member of Boffa's
  family for the purpose of determining coverage under the AAA policy.  As
  described above, the policy extends coverage on the basis of a family
  relationship to any "person related to [the named insured or the spouse of
  the named insured]  by blood, marriage or adoption who is a resident of
  [the named insured's] household.  This includes a ward or foster child." 
  Neither "ward" nor "foster child" is afforded a definition under the
  policy.  A policy term in dispute ought to be read according to its plain,
  ordinary and popular meaning.  Ulm v. Ford Motor Co., 170 Vt. 281, 295, 750 A.2d 981, 992 (2000).  

       To consider plaintiff the ward of Paul Boffa runs counter to the
  common understanding of that term, which, as derived from statute, implies
  a guardian-ward relationship created by legal process in which one of the
  following factors led to its creation: the absence of a living parent who
  is authorized to act as a guardian; the parent is shown to be incompetent
  or unsuitable; the parent has lived out of the state for three years, has
  not contributed to the child's support, and the child has lived in the
  state for three years; and when no parent objects and the appointment is in
  the best interests of the child.  14 V.S.A. § 2645(1)-(4).  In this case
  there was no indication in the record that Boffa had undertaken the
  responsibilities of a guardian, or that Boffa had supplanted his mother as 
  guardian.  As plaintiff was eighteen years old at the time of his accident,
  such responsibilities would have also required a demonstration of mental
  illness, retardation, and an inability to manage his affairs without the
  supervision of a guardian, 14 V.S.A. § 3061(1)(a)-(c), or, in the
  alternative, that plaintiff filed a voluntary petition requesting the
  appointment of a guardian.  14 V.S.A. § 2671.  Because no such
  demonstrations were made, plaintiff, the eighteen-year-old son of  Boffa's
  domestic partner, cannot reasonably be considered his ward for the purposes
  of the AAA policy.
   
       Neither can plaintiff be considered a foster child of Paul Boffa.  The
  statute governing the placement of foster children defines child as "an
  individual under the age of 13."  33 V.S.A. § 3511(1).  While the AAA
  policy does not lend a definition to the term, it seems clear that
  plaintiff, 

 

  having achieved the age of majority at the time of his accident, could not
  satisfy any reasonable definition of foster child in his relationship with
  Boffa.

       Finally, Plaintiff urges us to apply the rationale relied on by the
  Supreme Court of Rhode Island in Mallane v. Holyoke Mut. Ins. Co., 658 A.2d 18 (R.I. 1995).  In that case, plaintiff was listed as a driver under his
  brother's insurance policy, and because the term driver was not defined,
  the court recognized an ambiguity as to whether a driver was an "insured"
  subject to the broader terms of the policy.  In resolving that ambiguity,
  the court decided that the contents of the declarations page were
  determinative of coverage and " 'must be deemed to define coverage and the
  insured's expectation of coverage.' "  Id. at 21 (quoting Lehrhoff v. Aetna
  Cas. & Sur. Co., 638 A.2d 889, 892 (1994)).  The Rhode Island court noted
  that its decision was consistent only with those of "a minority of
  jurisdictions." Id.  Connecticut, for example, has held that a person
  listed as a driver, but not designated as an insured party, is not entitled
  to under-insured motorist coverage under a policy which limited such
  coverage to "you or any family member," and then specifically defined "you"
  as the named insured listed in the declarations.  Kitmirides v. Middlesex
  Mutual Assurance Co., 783 A.2d 1079, 1082-83 (Conn. App. Ct. 2001).      

       In the AAA policy in question, there is no ambiguity as to the named
  insured, and it is plaintiff's relationship to the named insured described
  in the policy that is determinative of his coverage for injury by an
  uninsured motorist.  In determining that plaintiff is not entitled to
  uninsured motorist coverage under the policy, we do not address the issue
  of plaintiff's mother's  status as an "insured driver."  While 23 V.S.A. §
  941(a) has been held to protect insured parties regardless of their
  location at the time of injury, the determination of who qualifies as the
  "insured" is left to the parties to an insurance contract.  Canedy v.
  Liberty Mut. Ins. Co., 126 F.3d 100, 104 (2d Cir. 1997). 

       Affirmed.

        
                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice