Souders, T. v. Tuscarora Wayne Insurance ( 2016 )

J-A09039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TODD M. SOUDERS, ADMINISTRATOR IN THE SUPERIOR COURT OF
OF THE ESTATE OF TINA M. SOUDERS, PENNSYLVANIA
DECEASED,
Appellant
v.
TUSCARORA WAYNE INSURANCE
COMPANY AND ASHLEY HANN,
ADMINISTRATRIX OF THE ESTATE OF
RICKY L. HANN, DECEASED AND CAROL
SUE KEEFER AND RALPH HANN AND W.
JEAN HANN, A/K/A WILDA J. HANN,
Appellees No. 1551 MDA 2015
Appeal from the Judgment Entered August 14, 2015
in the Court of Common Pleas of Fulton County
Civil Division at No.: 2013-00214
BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 07, 2016
Appellant, Todd M. Souders, as administrator of the estate of his
estranged, deceased wife, Tina M. Souders, appeals from the judgment of
August 14, 2015, granting summary judgment in favor of Appellees,
Tuscarora Wayne Insurance Company, Ashley Hann, as administratrix of the
estate of Ricky L. Hann, Carol Sue Keefer, Ralph Hann, and W. Jean Hann
a.k.a. Wilda J. Hann, and denying Appellant’s motion for summary judgment
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*
Retired Senior Judge assigned to the Superior Court.
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in this declaratory judgment action.1 For the reasons discussed below, we
affirm.
We take the underlying facts and procedural history in this matter
from the trial court’s October 26, 2015 opinion and our independent review
of the certified record.
The facts relevant to the disposition of the instant
declaratory judgment action come in the wake of tragic events
culminating in the death of Tina Souders. Ricky Hann, the son of
[Appellees Ralph and Jean Hann], was arrested and charged with
kidnapping on February 18, 2011. With the assistance of a bail
bondsman, Hann was able to post bail and was subsequently
released from the Franklin County Jail. The following day,
[Ricky] Hann went to stay at his sister, [Appellee] Carol Sue
Keefer’s, residence which she was renting from her parents,
[Appellees] Ralph and Jean Hann (the Hanns). [Appellant]
alleges that [Appellee] Ms. Keefer allowed her brother to take a
gun or that Ricky Hann was able to retrieve one of his guns
because they were not properly secured. Tragically, on February
20, 2011, Ricky Hann shot and killed Ms. Souders before turning
the gun on himself.
[Appellant] filed two wrongful death and survival actions,
first against [Appellee] Ashley Hann as [a]dministrator of the
[e]state of Ricky L. Hann, [d]eceased, and [Appellee] Ms. Keefer
on March 23, 2011, then against [Appellees] the Hanns on March
1, 2013. [Appellant] alleges that Ms. Souders[’] death was the
result of the negligence of [Appellee] Ms. Keefer in safekeeping
Ricky Hann’s guns, and that [Appellees] the Hanns, as the
owners of the residence, had a duty to insure that Ricky Hann
did not have access to his guns.
[Appellant] instituted this declaratory judgment action
seeking a finding that [Appellee] Ms. Keefer is an “insured”
under [Appellee] Tuscarora Wayne[’s] farm insurance policy
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1
The only Appellee who filed a brief in this matter is Tuscarora Wayne
Insurance Company (Tuscarora Wayne).
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[(the Policy)] issued to [Appellees] the Hanns. In the
[c]omplaint filed on June 4, 2013, [Appellant] asserted that
[Appellee] Ms. Keefer is an insured and that [Appellee]
Tuscarora Wayne is required to defend and indemnify [Appellee]
Ms. Keefer in connection with the underlying lawsuit. On
December 23, 2013, [Appellee] Tuscarora Wayne filed an
[a]nswer to [c]omplaint and [n]ew [m]atter. [Appellant] filed a
[r]eply to [n]ew [m]atter on January 16, 2014. Thereafter,
[Appellee] Ms. Keefer filed an [a]nswer to [c]omplaint and [n]ew
[m]atter on January 21, 2014.
On April 20, 2015, [Appellee] Tuscarora Wayne filed a
[m]otion for [s]ummary [j]udgment, along with a
[m]emorandum of [l]aw in [s]upport of [m]otion for [s]ummary
[j]udgment. [Appellee] Tuscarora Wayne asserted that there is
no issue of fact that [Appellee] Ms. Keefer is not an insured
under [the Policy] issued to [Appellees] the Hanns because
[Appellee] Ms. Keefer is not a member of [Appellees] the Hanns’
household. Both [Appellee] Ms. Keefer and [Appellant] filed
[a]nswers to [Appellee] Tuscarora Wayne’s [m]otion for
[s]ummary [j]udgment.
On May 13, 2015, [Appellant] filed a [m]otion for
[s]ummary [j]udgment, along with a [b]rief in [s]upport of
[m]otion for [s]ummary [j]udgment and in [o]pposition to
[Appellee] Tuscarora Wayne’s [m]otion for [s]ummary
[j]udgment. [Appellant] asserted that [Appellee] Ms. Keefer is
an “insured” because she was a resident relative residing in the
farm household. Additionally, [Appellant] alleged that, as a
result of the assistance [Appellee] Ms. Keefer provided to
[Appellees] the Hanns with the care of horses and upkeep of the
farm, she is an insured under Section 9[e.], f., and g. of [the
Policy] issued to [Appellees] the Hanns. Oral argument was held
on the cross motions for summary judgment on July 27, 2015.
On August 14, 2015, based on the parties’ arguments, the
record, and the law, [the trial court] granted [s]ummary
[j]udgment in favor of [Appellee Tuscarora Wayne] and denied
[Appellant’s] [m]otion for [s]ummary [j]udgment.
(Trial Court Opinion, 10/26/15, at 1-4) (footnotes and record citations
omitted).
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The instant, timely appeal followed. On September 10, 2015, the trial
court ordered Appellant to file a concise statement of errors complained of
on appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b)
statement on September 25, 2015. See id. On October 26, 2015, the trial
court filed an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review:
A. Did the trial [court] err in entering judgment in favor of
Appellee, Tuscarora Wayne Insurance Company and against
Appellant, Todd M. Souders, Administrator of the Estate of Tina
M. Souders, Deceased?
B. Did the trial [court] err in finding that [Appellee] Carol Sue
Keefer was not an “insured” pursuant to Section 9E of the Policy
even though [Appellee] Carol Sue Keefer cared for horses owned
by the named insureds under the policy?
C. Did the trial [court] err in finding that it was unreasonable
to extend coverage to [Appellee] Carol Sue Keefer as an
“insured” under Section 9E of the [P]olicy notwithstanding the
clear language of said section?
D. Did the trial [court] err in finding that it was not the intent
of the parties for [Appellee] Carol Sue Keefer to be an “insured”
under Section 9E of the [P]olicy notwithstanding the clear
language of said section?
E. Did the trial [court] err when [it] interpreted Section 9E of
the policy contrary to the clear and unambiguous language of
the section and the [P]olicy was a whole?
F. Did the trial [court] err when finding that, if the [P]olicy
language is ambiguous, the ambiguity was interpreted in favor of
the insurer, Appellee, Tuscarora Wayne Insurance Company?
(Appellant’s Brief, at 5) (unnecessary capitalization omitted).
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Appellant appeals from the grant of summary judgment in this
declaratory judgment action. The applicable scope and standard of review
are as follows.
Our scope of review of an order granting summary
judgment is plenary. [W]e apply the same standard as the trial
court, reviewing all the evidence of record to determine whether
there exists a genuine issue of material fact. We view the record
in the light most favorable to the non-moving party, and all
doubts as to the existence of a genuine issue of material fact
must be resolved against the moving party. Only where there is
no genuine issue as to any material fact and it is clear that the
moving party is entitled to a judgment as a matter of law will
summary judgment be entered.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of his cause of
action. . . . Thus, a record that supports summary judgment will
either (1) show the material facts are undisputed or (2) contain
insufficient evidence of facts to make out a prima facie cause of
action or defense and, therefore, there is no issue to be
submitted to the [fact-finder]. Upon appellate review, we are
not bound by the trial court’s conclusions of law, but may reach
our own conclusions. The appellate [c]ourt may disturb the trial
court’s order only upon an error of law or an abuse of discretion.
Stein v. Magarity, 102 A.3d 1010, 1013 (Pa. Super. 2014) (citation
omitted). Further,
[w]hen reviewing the determination of the trial court in a
declaratory judgment action, our scope of review is narrow. As
declaratory judgment actions follow the practice and procedure
of an action in equity, we will review the determination of the
court below as we would a decree in equity and set aside the
factual conclusions of the trial court only where they are not
supported by adequate evidence. However, when reviewing an
issue of law in a declaratory judgment action, our scope of
review is plenary and our standard of review is de novo.
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Nationwide Mut. Ins. Co. v. Catalini, 18 A.3d 1206, 1209 (Pa. Super.
2011) (citations omitted).
Appellant first claims that the trial court “committed an error of law by
failing to find that the clear and unambiguous language of the Policy
demonstrates that the intent of the parties was to provide coverage to
[Appellee] Carol Sue Keefer pursuant to Section 9e of the Policy.” 2
(Appellant’s Brief, at 17). We disagree.
The Policy provides in relevant part:
9. “Insured” means:
a. “you”;
b. “your” relatives if residents of “your”
household;
c. persons under the age of 21 in “your” care or
in the care of “your” resident relatives;
d. “your” legal representative, if “you” die while
insured by this [p]ersonal [l]iability
[c]overage. This person is an “insured” only
for liability arising out of the “insured
premises”. An “insured” at the time of “your”
death remains an “insured” while residing on
the “insured premises”;
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2
Appellant addresses his first through fifth questions as one, contrary to our
rules of appellate procedure. (See Appellant’s Brief, at 17-20); see also
Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as
there are questions to be argued[.]”). Nonetheless, we will address his
issues because this discrepancy does not hamper our review. See Donahue
v. Fed. Express Corp., 753 A.2d 238, 241 n.3 (Pa. Super. 2000).
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e. persons using or caring for vehicles,
watercraft, or animals owned by an “insured”
as defined under a., b., or c. above and to
which this [p]ersonal [l]iability [c]overage
applies (This does not include persons using or
caring for vehicles, watercraft or animals, in
the course of “business” or without the owner's
consent.);
f. persons in the course of performing domestic
duties that relate to the “insured premises”;
g. persons in the course of acting as “your” real
estate manager for the “insured premises”;
and
h. a person while performing duties as an
employee of an “insured” with respect to farm
implements and other vehicles covered by this
[p]ersonal [l]iability [c]overage.
Each of the above is a separate “insured”, but this does not
increase “our” “limit”.
(The Policy, 4/15/12, at Page 3, Section 9) (emphasis added). The rules of
insurance contract interpretation are well-settled.
The task of interpreting [an insurance] contract is generally
performed by a court rather than by a jury. The purpose of that
task is to ascertain the intent of the parties as manifested by the
terms used in the written insurance policy. When the language
of the policy is clear and unambiguous, a court is required to
give effect to that language. When a provision in a policy is
ambiguous, however, the policy is to be construed in favor of the
insured to further the contract’s prime purpose of
indemnification and against the insurer, as the insurer drafts the
policy, and controls coverage. Contractual language is
ambiguous if it is reasonably susceptible of different
constructions and capable of being understood in more than one
sense. Finally, in determining what the parties intended by their
contract, the law must look to what they clearly expressed.
Courts in interpreting a contract, do not assume that its
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language was chosen carelessly. Thus, we will not consider
merely individual terms utilized in the insurance contract, but
the entire insurance provision to ascertain the intent of the
parties.
Erie Ins. Exch. v. E.L., 941 A.2d 1270, 1273 (Pa. Super. 2008), appeal
denied, 956 A.3d 435 (Pa. 2008) (citation omitted). Further,
[w]ords of common usage in an insurance policy are to be
construed in their natural, plain, and ordinary sense, and a court
may inform its understanding of these terms by considering their
dictionary definitions.
Moreover, courts must construe the terms of
an insurance policy as written and may not modify
the plain meaning of the words under the guise of
interpreting the policy. If the terms of a policy are
clear, this Court cannot rewrite it or give it a
construction in conflict with the accepted and plain
meaning of the language used.
Allstate Fire & Cas. Ins. Co. v. Hymes, 29 A.3d 1169, 1172-73 (Pa.
Super. 2011), appeal denied, 46 A.3d 715 (Pa. 2012) (quotation marks and
citation omitted).
Here, the dispute lies in the interpretation of the words “using or
caring” in Section 9e. The parties do not dispute that Appellee Carol Keefer
used and cared for at least some of Appellees the Hanns’ horses. (See
Appellant’s Brief, at 17; Appellee Tuscarora Wayne’s Brief, at 2). However,
Appellant contends that so long as Appellee Keefer used and cared for some
of Appellee the Hanns’ horses, she is an insured under the policy with
respect to all activities. (See Appellant’s Brief, at 18-20). Appellee
Tuscarora Wayne argues that the language of the policy limits the coverage
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to the performance of duties related to using or caring for the horses. (See
Appellee Tuscarora Wayne’s Brief, at 4-8).
Here, Section 9 of the Policy identifies categories of individuals which it
defines as an “insured.” The first four categories are the most expansive,
identifying persons by their relationship to the insured. 3 (See The Policy,
supra at Section 9a, b, c, and d). The final four categories are different;
they are defined by the individual’s occupation or activity rather than their
relationship to the insured, and, therefore they are covered only during the
performance of certain duties “using and caring” for horses, “acting” as an
estate manager, “performing” housework, etc. (See The Policy, supra at
Sections 9e-h).
Appellant contends that the omission of the phrase “in the course of,”
which is used in Sections 9f and g, means that the Policy intends to treat
those covered by Section 9e more expansively.4 (See Appellant’s Brief, at
18-19). In essence, the crux of Appellant’s argument is that if an insurer
wants a similar limitation in two different sections of the policy, it must use
identical language. However, Appellant provides no legal support for this
theory. Moreover, Appellant’s interpretation inflates policy coverage to the
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3
“your relatives,” “your legal representative”, etc. (The Policy, supra at
Section 9b and d).
4
We note that Section 9h of the policy also omits the phrase “in the course
of” but by its language, clearly limits the extent of coverage to the
performance of certain duties. (See the Policy, supra at Section 9h).
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point of absurdity; under Appellant’s interpretation, a person who sometimes
uses or cares for the policy owners’ horse would be treated on the same
footing as the policy owner. This is simply not reasonable. Rather, we
agree with Appellee Tuscarora Wayne that “[s]imilar limiting provisions can
be created in different sections by the use of wording that is different but
equivalent in its meaning.” (Appellee Tuscarora Wayne’s Brief, at 5). In
Sections 9e-h, the Policy defines a person as an insured solely while
performing the duties described in that section.
As the trial court aptly stated:
[u]nder [Appellant’s] interpretation of Section 9e, any
individual who regularly cares for an insured’s animals has
coverage wherever they may go for any liability covered under
the [P]olicy. An ambiguity exists in an insurance contract where
more than one reasonable interpretation of the policy language
exists when applied to a particular set of facts. In determining if
a contract is ambiguous the [c]ourt must examine the
questionable language in the context of the entire policy and
decided whether the contract is reasonably susceptible of
different constructions and capable of being understood in more
than one sense. While it is apparent that [Appellant’s]
interpretation of Section 9e differs from that of [Appellee]
Tuscarora Wayne’s, [Appellant’s] view of Section 9e is not a
reasonable one. Viewing the language of 9e in the context of
the entire policy, it is clear that there was no intent to grant
[p]ersonal [l]iability [c]overage to any individual who cares for
[Appellee] the Hanns’ horses. A reasonable interpretation of
Section 9e would be to extend coverage only to those currently
caring for animals if the liability stems for such care. Thus, had
[Appellee] Ms. Keefer injured another while engaging in caring
for [Appellee] the Hanns’ horses, she may have fallen under the
purview of Section 9e; however, this is not the case. Therefore,
[Appellee] Ms. Keefer is not an insured under the terms of
Section 9e.
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(Trial Court Opinion, 8/14/15, at 12) (citations and quotation marks omitted,
emphasis added). We agree. Because Appellant’s interpretation of the
language of Section 9e is unreasonable, his first five claims lack merit. See
Allstate Fire & Cas. Ins. Co., supra at 1172-73.
In the final claim, Appellant contends that the trial court erred “when
finding that, if the policy language [was] ambiguous, the ambiguity was
interpreted in favor of the insurer[.]” (Appellant’s Brief, at 20) (unnecessary
capitalization omitted). However, Appellant has waived this claim.
Appellant fails to cite to, and we have been unable to locate, any point in the
trial court’s opinion where it found the Policy language to be ambiguous.5
Further, Appellant does not provide any explanation for his conclusion that
the trial court found the Section 9e of the Policy to be ambiguous. It is not
this Court’s responsibility to comb through the record seeking the factual
underpinnings of Appellant’s claim. See Commonwealth v. Mulholland,
702 A.2d 1027, 1034 n.5 (Pa. Super. 1997) (“In a record containing
thousands of pages, this court will not search every page to substantiate a
party’s incomplete argument”) (citation omitted). Further, it is long-settled
that failure to argue and to cite any authority supporting the argument
constitutes a waiver of the issue on appeal. See Jones v. Jones, 878 A.2d
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5
Rather, as quoted above, the trial court stated that, while the two parties
had differing interpretations of Section 9e, Appellant’s interpretation was
unreasonable, and therefore it did not find any ambiguity. (See Trial Ct.
Op., 8/14/15, at 12).
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86, 90 (Pa. Super. 2005). This Court will not act as counsel and will not
develop arguments on behalf of an appellant. See Bombar v. West Am.
Ins. Co., 932 A.2d 78, 94 (Pa. Super. 2007). When deficiencies in a brief
hinder our ability to conduct meaningful appellate review, we can dismiss
the appeal entirely or find certain issues to be waived. See Pa.R.A.P. 2101.
Because Appellant has failed to provide any support for his claim that the
trial court found the policy to be ambiguous, he has waived the claim. See
id.; Bombar, supra at 94; Jones, supra at 90.
Accordingly, for the reasons discussed above, we affirm the grant of
summary judgment in favor of Appellees.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2016
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