Benjamin G. Dusing v. Metropolitan Property & Casualty Insurance Company ( 2022 )

RENDERED: AUGUST 26, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0200-MR
BENJAMIN G. DUSING APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 17-CI-01097
METROPOLITAN PROPERTY &
CASUALTY INSURANCE
COMPANY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND MCNEILL, JUDGES.
MCNEILL, JUDGE: This case involves an insurance dispute in which Appellant,
Benjamin G. Dusing (Dusing), alleges that a 2016 leased Mercedes was properly
insured by Appellee, Metropolitan Property & Casualty Insurance Company
(Metropolitan). Metropolitan disclaims coverage for the vehicle, which was
destroyed by fire on June 25, 2016. Dusing states that he was driving the vehicle
at the time it caught fire. As a result, Dusing filed a complaint for declaratory
judgment in Kenton Circuit Court on June 21, 2017. The court subsequently
granted what is styled as Metropolitan’s “Motion for Judgment,” on the basis that
there was no coverage pursuant to the terms of insurance policy with Metropolitan
(hereafter, the Policy). Dusing appealed to this Court as a matter of right. For the
following reasons, we affirm the circuit court.
A motion for summary judgment should be granted “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 any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR1 56.03. “Because no factual issues are involved and only a legal issue is
before the court on the motion for summary judgment, we do not defer to the trial
court and our review is de novo.” Univ. of Louisville v. Sharp, 416 S.W.3d 313,
315 (Ky. App. 2013) (citation omitted). With these standards in mind, we turn to
the applicable law and the facts of the present case. The Policy at issue here
provides the following relevant terms:
We will pay for loss to your covered automobile or to a
non-owned automobile, including its equipment, not
caused by collision, minus any applicable deductible
shown in the Declarations. Coverage is included for a
loss caused by but not limited to the following:
1
Kentucky Rules of Civil Procedure.
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....
2. Fire, explosion or earthquake . . . .
The Policy defines “non-owned automobile” as:
1. an automobile or trailer while being used by you or a
relative, with the owner’s permission, which is not
owned by, furnished to, or made available for regular
use to you or any resident in your household.
....
2. a commercially rented automobile or trailer used by
you or a relative on a temporary basis.
In granting a judgment in favor of Metropolitan, the circuit court
reasoned as follows:
On March 31, 2016, BGD Law, a law firm owned by
[Dusing] leased the 2016 Mercedes for a period of five
years or 60,000 miles. That lease also provided a 24-
month service agreement. The lease also charged BGD
Law fees for license and registration of the vehicle.
[Dusing] asserts that he is entitled to coverage for the
loss of the 2016 Mercedes, claiming that that vehicle was
a “non-owned” vehicle under the policy. In response
Metropolitan takes the position that the 2016 Mercedes
could not qualify as a “non-owned” vehicle for several
reasons. First, the 2016 Mercedes was not provided on a
temporary basis, but rather was the subject of a 5-year,
60,000 mile lease, with a 24-month service agreement.
Second, Metropolitan states that the vehicle was not
“commercially rented.” Unlike a rental agreement, the
2016 Mercedes was provided to BGD Law and charged
license and registration fees which are not standard for
“commercially rented” vehicles.
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Having reviewed the evidence in this case and having
considered the Briefs of the parties, this Court agrees
with the position taken by Metropolitan that the 2016
Mercedes was not a “non-owned” vehicle which would
allow it to be covered by the policy issued in 2015. In
sum, there is no coverage for the loss to this vehicle
under the Metropolitan policy.
It is undisputed that Dusing failed to purchase insurance coverage for the 2016
Mercedes. Therefore, it is not a “covered vehicle” pursuant to the Policy which, to
be clear, is Dusing’s personal Policy. We are also inclined to agree with the circuit
court that a vehicle subject to a five-year lease cannot reasonably be considered as
“non-owned” for purposes of the Policy. Indeed, it strains credulity to consider the
2016 Mercedes at issue here to be a “commercially rented” vehicle being used on a
“temporary basis,” merely because it was being leased by Dusing’s law firm.
Therefore, we do not believe that Dusing had a “reasonable expectation” of
coverage here. Having considered the record and the law, we affirm the circuit
court’s summary judgment.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Brian P. O’Connor Kenneth E. Dunn
Cincinnati, Ohio Louisville, Kentucky
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