Davis v. Foley
Annotate this Case
January 1995 Term
___________
No. 22361
___________
DONNA DAVIS, INDIVIDUALLY AND AS THE
ADMINISTRATRIX OF THE ESTATE OF ARLO DAVIS, JR.,
Plaintiff Below, Appellant
v.
WILLIAM FOLEY, ARTHUR WILKINS, JAMES HERRON,
NATIONWIDE MUTUAL INSURANCE COMPANY,
WESTFIELD INSURANCE COMPANY, AND INTEGON INSURANCE,
DBA NEW SOUTH INSURANCE COMPANY,
Defendants Below, Appellees
___________________________________________________
Appeal from the Circuit Court of Hampshire County
Honorable Donald H. Cookman, Judge
Civil Action No. 93-C-154
AFFIRMED
___________________________________________________
Submitted: January 24, 1995
Filed: April 14, 1995
Homer A. Speaker
Dale Buck
Martinsburg, West Virginia
Attorneys for the Appellant
Catherine D. Munster
Robert W. Trumble
McNeer, Highland & McMunn
Clarksburg, West Virginia
Attorneys for the Appellee, Westfield Insurance Company
Michael D. Lorenson
Stuart A. McMillan
Bowles, Rice McDavid Graff & Love
Martinsburg, West Virginia
Attorneys for the Appellee, Nationwide Mutual Insurance Company
Patrick J. Nooney
Steptoe & Johnson
Hagerstown, Maryland
Attorney for the Appellees, William Foley and Integon Insurance
Oscar Bean
Bean & Bean
Moorefield, West Virginia
Attorney for the Appellees, Arthur Wilkins and James Herron
JUSTICE McHUGH delivered the Opinion of the Court.
Justice Brotherton did not participate.
Judge Fox sitting by temporary assignment.
Chief Justice Neely, deeming himself disqualified, did not
participate.
Judge Ranson sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "A circuit court's entry of summary judgment is
reviewed de novo." Syl. pt. 1, Painter v. Peavy, ___ W. Va. ___,
451 S.E.2d 755 (1994).
2. "'A motion for summary judgment should be granted
only when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to clarify
the application of the law.' Syl. pt. 3, Aetna Casualty & Surety
Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963)." Syl. pt. 2, Miller v. Whitworth, No. 22182,
___ W. Va. ___, ___ S.E.2d ___ (Mar. 3, 1995).
3. "'Summary judgment is appropriate where the record
taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, such as where the nonmoving party has
failed to make a sufficient showing on an essential element of the
case that it has the burden to prove.' Syl. pt. 4, Painter v.
Peavy, ___ W. Va. ___, 451 S.E.2d 755 (1994)." Syl. pt. 3,
Cannelton Industries, Inc. v. Aetna Casualty & Surety Co. of
America, No. 22164, ___ W. Va. ___, ___ S.E.2d ___ (Dec. 16, 1994).
4. The damages in a wrongful death action arise out of
the death of the decedent thereby making a wrongful death action a
derivative claim. As a result, when language in an insurance
policy clearly limits recovery of derivative claims to the per
person limit, the per occurrence limit does not apply even though
"the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who were
financially dependent upon the decedent at the time of his or her
death . . ." are entitled to share in the recovery in a wrongful
death action pursuant to W. Va. Code, 55-7-6 [1992]. However, if
there is language in the insurance policy which includes damages
from a wrongful death as a separate bodily injury, then each person
recovering for the wrongful death is entitled to a separate per
person limit.
McHugh, Justice:
The appellant, Donna Davis appeals the January 19, 1994
orders of the Circuit Court of Hampshire County which granted
summary judgment in favor of the appellees, Nationwide Mutual
Insurance Company (hereinafter "Nationwide") and Westfield
Insurance Company (hereinafter "Westfield") in a wrongful death
action.See footnote 1 For reasons set forth below, we affirm the order of the
circuit court.
I
This case arose after the appellant's son, Arlo Davis,
Jr., was killed in an automobile accident on December 28, 1992.
The decedent was a passenger in an automobile driven by his
brother, Todd Davis, and owned by William Foley. The appellant was
insured by Westfield, and the Foley automobile was insured by
Integon Insurance Company, dba New South Insurance Company.See footnote 2 The
Westfield policy provided underinsurance coverage of $50,000 per
person and $100,000 per occurrence.
The automobile accident occurred when a vehicle owned by
Arthur Wilkins and operated by James Herron crossed the center line
and struck the Foley vehicle. The Wilkins' vehicle was insured by
Nationwide. The Nationwide policy has liability limits of $25,000
per person and $50,000 per occurrence.
The decedent, who was not married and has no children, is
survived by his mother, father and two brothers. The appellant,
who is the decedent's mother, filed a complaint seeking relief for
loss of consortium, seeking relief for the wrongful death of the
decedent, and seeking a declaratory judgment against the appellees.
With respect to the declaratory judgment action, the appellant
contended that in a wrongful death action the appellees should
provide coverage under their respective insurance polices up to the
per occurrence limit rather than up to the per person limit.
Nationwide has paid the appellant $25,000, which is the
per person limit under the policy, and the appellee, Westfield, has
paid the appellant $50,000, which is the per person limit under its
policy. The appellant asserted that she has a right to collect
more than one per person limit from the appellees since more than
one person has a claim pursuant to the wrongful death action. The
trial court below disagreed; and therefore, granted the appellees'
motions for summary judgment from which the appellant appeals.
II
We are mindful that "[a] circuit court's entry of summary
judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, ___
W. Va. ___, 451 S.E.2d 755 (1994). Furthermore, as we acknowledged
in syllabus point 2 of Miller v. Whitworth, No. 22182, ___ W. Va.
___, ___ S.E.2d ___ (Mar. 3, 1995), "'[a] motion for summary
judgment should be granted only when it is clear that there is no
genuine issue of fact to be tried and inquiry concerning the facts
is not desirable to clarify the application of the law.' Syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New
York, 148 W. Va. 160, 133 S.E.2d 770 (1963)." Lastly, "'[s]ummary
judgment is appropriate where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, such
as where the nonmoving party has failed to make a sufficient
showing on an essential element of the case that it has the burden
to prove.' Syl. pt. 4, Painter v. Peavy, ___ W. Va. ___, 451 S.E.2d 755 (1994)." Syl. pt. 3, Cannelton Industries, Inc. v.
Aetna Casualty & Surety Co. of America, No. 22164, ___ W. Va. ___,
___ S.E.2d ___ (Dec. 16, 1994). With this in mind, we will now
examine the case before us.
III
The issue before us is as follows: does a wrongful death
action give rise to a per person claim for damages for each person
having a claim thereunder up to the per occurrence limits of
liability, underinsured, or uninsured coverages, or does only a
single per person limit apply no matter how many individuals might
have suffered damages as a result of a single death.See footnote 3 The
appellant alleges that a wrongful death action gives rise to a per
person claim for damages for each person having a claim thereunder
up to the per occurrence limits of liability, underinsured, or
uninsured coverages. Conversely, the appellees assert that their
insurance policies clearly limit recovery to a single per person limit in a wrongful death action no matter how many individuals
might have suffered damages as a result of a single death.
The relevant portion of appellee Nationwide's insurance
policy states:
Bodily injury limits shown for any one person
are for all legal damages, including all
derivative claims, claimed by anyone for
bodily injury to one person as a result of one
occurrence. Subject to this limit for any one
person, the total limit of our liability shown
for each occurrence is for all damages,
including all derivative claims, due to bodily
injury to two or more persons in any one
occurrence.
Similarly, appellee Westfield's insurance policy asserts, in
relevant part:
If the Declarations indicates an 'each person'
and 'each accident' limit of liability for
Underinsured Motorist Coverage, the limit of
liability shown in the Declarations for 'each
person' for Underinsured Motorist Bodily
Coverage is our maximum limit of liability for
all damages, including damages for care, loss
of services or death, arising out of bodily
injury sustained by any one person in any one
accident. Subject to this limit for 'each
person', the limit of liability shown in the
Declarations for 'each accident' for
Underinsured Motorist Bodily Injury Coverage
is our maximum limit of liability for all
damages for bodily injury resulting from any
one accident with an underinsured motor
vehicle. The limit of liability shown in the
Declarations for 'each accident' for
Underinsured Motorist Property Damage Coverage
is our maximum limit of liability for all
damages to all property resulting from any one
accident. This is the most we will pay
regardless of the number of:
1. Insureds;
2. Claims made[.]
Both policies clearly limit coverage when there is a single death
or bodily injury to per person limits for derivative claims.See footnote 4
This Court recently discussed an analogous insurance
provision when addressing a similar issue in Federal Kemper Ins.
Co. v. Karlet, 189 W. Va. 79, 428 S.E.2d 670 (1993).See footnote 5 The issue in
Karlet was whether the minor children claiming loss of parental
consortium were to be "treated as separate injured persons, subject
to separate 'per person' and 'per occurrence' insurance liability
limits, based on language in an automobile insurance policy." Id.
189 W. Va. at 80, 428 S.E.2d at 61 (footnote omitted). After
examining case law from other jurisdictions, this Court concluded:
When a person is bodily injured in an
automobile accident, an individual other than
the bodily-injured person may also suffer
damages as a result of such accident through
loss of consortium. The claim for loss of
consortium by an individual other than the one
suffering bodily injury as a result of an
automobile accident is generally recognized as
arising out of the claim for damages of the bodily-injured person. As a result, the claim
of the bodily-injured person and the claim for
loss of consortium are covered within the same
per person limit of liability provisions under
the automobile insurance policy. More
specifically, when the per person limit of
liability in a policy provides coverage for
'all damages arising out of bodily injury
sustained by one person as a result of one
accident,' both the claim of the bodily
injured person and the claim for loss of
consortium are covered within the same per
person limit of liability, and recovery for
both claims may not exceed the fixed amount of
the maximum limit of damages under the per
person limit of liability. If, however, there
is language in the policy which includes loss
of consortium as a separate bodily injury,
such loss of consortium claim is entitled to a
separate per person limit of liability.
Syllabus, Karlet, supra.
Thus, we recognized that a loss of consortium claim
arises out of a claim for damages of the bodily-injured person
thereby limiting recovery of damages in a loss of consortium claim
to the per person limit unless there is language in the insurance
policy which includes loss of consortium as a separate bodily
injury. In other words, the loss of consortium claim is a
derivative action arising out of the bodily-injured person. The
appellees argue that Karlet is applicable to the case before us.
The appellant, however, contends a wrongful death action,
unlike a claim for loss of consortium, is an independent action and
not a derivative action. The appellant points out the wrongful
death action is "patterned after an English statute known as Lord
Campbell's Act [which] allows an action for wrongful death upon the
loss sustained by the beneficiaries of the recovery, rather than on
the injuries suffered by the deceased or his estate." Walker v. Walker, 177 W. Va. 35, 38, 350 S.E.2d 547, 549 (1986), superseded
by statute on other grounds as stated in Arnold v. Turek, 185 W.
Va. 400, 407 S.E.2d 706 (1991).
To further support her position, the appellant focuses on
W. Va. Code, 55-7-6 [1992] which states that a wrongful death
action is "brought by and in the name of the personal
representative of such deceased person . . . and the amount
recovered in every such action shall be recovered by said personal
representative and be distributed . . .," W. Va. Code, 55-7-6(a)
[1992], "to the surviving spouse and children, including adopted
children and stepchildren, brothers, sisters, parents and any
persons who were financially dependent upon the decedent at the
time of his or her death or would otherwise be equitably entitled
to share in such distribution[.]" W. Va. Code, 55-7-6(b) [1992].
Additionally, W. Va. Code, 55-7-6(c)(1) [1992] outlines the factors
which may be considered when determining damages in a wrongful
death action:
(A) Sorrow, mental anguish, and solace which
may include society, companionship, comfort,
guidance, kindly offices and advice of the
decedent; (B) compensation for reasonably
expected loss of (i) income of the decedent,
and (ii) services, protection, care and
assistance provided by the decedent; (C)
expenses for the care, treatment and
hospitalization of the decedent incident to
the injury resulting in death; and (D)
reasonable funeral expenses.
The appellant argues that each person who is entitled to
the above damages has an independent claim for damages; therefore,
each person should be allowed to collect from the insurance company up to the per occurrence limit. The appellant asserts that even
though the statute specifies that only a personal representative of
the deceased may bring a wrongful death action, such requirement is
for convenience, not for the purpose of limiting the recovery to
the per person limits of an insurance policy.
We disagree. The damages provided for in the wrongful
death statute are not unlike the damages recoverable in a loss of
consortium claim: both arise out of the death or injury of another
person. As one court stated, in the wrongful death action "[t]he
estate and the survivors suffered loss, not directly from the
collision, but from the loss of the deceased who was killed in the
accident. All their claims are derivative from the deceased as was
the husband's consortium claim[.]" Jones v. Zagrodnik, 600 So. 2d 1265, 1266 (Fla. Dist. Ct. App. 1992). Essentially, the
beneficiaries have not suffered bodily injury as defined by many
insurance policies. See Karlett, supra.
Moreover, other courts addressing the issue of whether
the per person limits or the per occurrence limits apply in a
wrongful death action have come to a similar conclusion. We
acknowledge that the language in the different insurance policies
relating to the per person limitation and defining bodily injury
varies to some degree. We also acknowledge that the various
wrongful death statutes vary to some degree. However, the basic
premise appears fairly well-settled in other jurisdictions: the
beneficiaries' claims in a wrongful death action arise out of the
death of the deceased, thereby limiting recovery in a wrongful death action to the per person limit rather than to the per
occurrence limit. See Jones, supra; Nationwide Mut. Ins. Co. v.
Moya, 837 P.2d 426, 429 (Nev. 1992) (A majority of cases hold "that
damages for loss of consortium or wrongful death--resulting from
'bodily injury' to one person--are subject to the 'each person'
limit"); Lewis v. Dairyland Ins. Co., 831 P.2d 985, 987 (N.M. 1992)
("We . . . hold that our wrongful death statutes permit only one
claim for damages for the death of one person"); Mutual of
Enumclaw Ins. Co. v. Knight, 833 P.2d 339 (Or. Ct. App. 1992) (In
a wrongful death action recovery is limited to the "each person"
limit when the insurance policy clearly states that regardless of
the number of claims made from the death of one person the "each
person" limit applies); Cradoct v. Employers Casualty Co., 733 S.W.2d 301 (Tex. Ct. App. 1987); Hutton v. Martin, 262 P.2d 202
(Wash. 1953); 15A George J. Couch, Couch on Insurance 2d § 56.22
(2d 1983). Cf. Herring v. Lumbermen's Mut. Casualty Co., 697 P.2d 337 (Ariz. 1985) (The beneficiaries' claim in a wrongful death
action arises out of the death of the decedent); Hara v. Island
Ins. Co., Ltd., 759 P.2d 1374, 1376 (Haw. 1988) (Wrongful Death
claims "are derivative and therefore, for purposes of tort
liability, stand or fall with the claim of the person actually
injured"); 1 Alan Widiss, Uninsured and Underinsured Motorist
Insurance § 12.4 (2d ed. 1992) ("Courts have almost uniformly held
that persons who sustain consequential damages have not sustained
bodily injuries in an accident and, therefore, the Limit of
Liability for one injured person applies regardless of how many uninsured motorist insurance claims there may be by individuals who
suffered consequential damages" (footnote omitted)). But see syl.
pt. 1, Savoie v. Grange Mut. Ins. Co., 620 N.E.2d 809 (Ohio 1993)
("Each person who is presumed to have been damaged as a result of
a wrongful death claim may, to the extent of his or her damages,
collect from the tortfeasor's liability policy up to its per person
limits subject to any per accident limit. Liability policy
provisions which purport to consolidate wrongful death damages
suffered by individuals into one 'each person' policy limit are
unenforceable" (citations omitted)) and Wood v. Shepard, 526 N.E.2d 1089 (Ohio 1988) (The majority held that each person who is
entitled to recover for a wrongful death has a separate claim and
is, therefore, not subject to the single person limit in the
underinsured motorist provision. The dissent noted that the
majority's holding was against the great weight of authority in
other jurisdictions which have determined that the per person limit
applies in a wrongful death action regardless of the number of
individuals seeking compensation).
We agree with the appellees that the holding in Karlet,
supra, should be extended to include the facts in the case before
us. Accordingly, we hold that the damages in a wrongful death
action arise out of the death of the decedent thereby making a
wrongful death action a derivative claim. As a result, when
language in an insurance policy clearly limits recovery of
derivative claims to the per person limit, the per occurrence limit
does not apply even though "the surviving spouse and children, including adopted children and stepchildren, brothers, sisters,
parents and any persons who were financially dependent upon the
decedent at the time of his or her death . . ." are entitled to
share in the recovery in a wrongful death action pursuant to W. Va.
Code, 55-7-6 [1992]. However, if there is language in the
insurance policy which includes damages from a wrongful death as a
separate bodily injury, then each person recovering from the
wrongful death is entitled to a separate per person limit.
Based upon the above, the Circuit Court of Hampshire
County properly granted the appellees' motions for summary
judgment. Thus, we affirm.
Affirmed.
Footnote: 1
W. Va. Code, 55-7-5 [1931] sets forth when a wrongful
death action may be maintained.Footnote: 2
Integon Insurance was dismissed from this case, with
prejudice, by an order dated January 19, 1994.Footnote: 3
We have acknowledged that there is no need to
distinguish between uninsured, underinsured, and liability
coverages when interpreting "per person" and "per occurrence"
issues. See Federal Kemper Ins. Co. v. Karlett, 189 W. Va. 79,
82 n. 9, 428 S.E.2d 60, 63 n. 9 (1993).Footnote: 4
The word "derivative" has been defined as "[t]hat
which has not its origin in itself, but owes its existence to
something foregoing." Black's Law Dictionary 443 (6th ed. 1990).Footnote: 5
Specifically, the insurance provision which was
discussed in Karlet states:
'The limit of liability shown in the
Declarations applicable to "each person" is
our maximum limit for all damages arising out
of bodily injury sustained by one person as a
result of any one accident. The limit of
liability shown in the Declarations
applicable to "each occurrence" is our
maximum limit for all damages arising out of
bodily injury sustained by two or more
persons as a result of any one accident.'
Karlet, 189 W. Va. at 81, 428 S.E.2d at 62.
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