Samantha Jones, Administratrix v. Underwriters at Lloyd's ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Samantha Jones, Administratrix FILED
of the Estate of Jerry Jones, June 24, 2013
RORY L. PERRY II, CLERK
Petitioner Below, Petitioner SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs) No. 12-0293 (Kanawha County 10-C-512)
Underwriters at Lloyd’s, London and
Commercial Insurance Services, Inc.,
Respondents Below, Respondents
MEMORANDUM DECISION
Petitioner Samantha Jones, by counsel J. Michael Ranson and Cynthia M. Ranson,
appeals the Circuit Court of Kanawha County’s order, entered January 27, 2012, granting
respondents’ motion for judgment on the pleadings. Respondent Underwriters at Lloyd’s,
London (“Lloyd’s”) appears by counsel Harry F. Bell and Robert P. Arnold, and Respondent
Commercial Insurance Services, Inc. (“Commercial Insurance”) appears by counsel John
Hoblitzell.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
The tragic facts giving rise to this action are undisputed. City of Charleston Patrolman
Jerry Jones was killed in the early morning hours of September 13, 2009, at the conclusion of a
lengthy car chase that ended in rural Kanawha County. Patrolman Jones and his fellow officers
had successfully barricaded an automobile driven by Brian Good with their patrol cars. Officers
exited their cars and instructed Good to get out of his car. Instead, Good revved his engine and
advanced his automobile, hitting police cruisers and endangering the responding police. Officers
directed Good to stop; he did not. At least two officers then opened fire on Good. Patrolman
Jones was struck by a police bullet, and he made his way to the front seat of his own car where
fellow officers found him seriously wounded. Patrolman Jones, only twenty-seven years old,
died from that gunshot soon afterward. He is survived by his wife Samantha.
Samantha Jones sued Good’s estate for the wrongful death of her husband.1 Good’s
1
Brian Good also was fatally wounded by gunfire at the conclusion of that car chase.
1
liability insurance carrier paid its policy limits of $50,000. In the final order approving
settlement in that liability case, Circuit Court Judge Carrie Webster wrote:
. . . In making this factual adjudication, the court is not making a legal
determination as to whether these adjudicated facts trigger UIM coverage under
the policy that Jerry and Samantha Jones had with Erie Insurance at the time of
his death. That matter is pending before the Honorable Joseph R. Goodwin in the
United States District Court of Southern West Virginia. Nor does this Order offer
or make any legal determination as to related coverage issues currently pending
before Kanawha County Circuit Court Judge Louis Bloom in the case styled
Samantha Jones, Administratrix of the Estate of Jerry Jones v. Underwriters at
Lloyd’s, London et. al. Civil Action No. 11-C-52.2
On the basis that Patrolman Jones was an employee of the City of Charleston, Ms. Jones
had asserted underinsurance claims against her own carrier, Erie Insurance, and against the
carrier for the City of Charleston, Respondent Lloyd’s, as described in the order referenced
above. The Lloyd’s policy was issued through Respondent Commercial Insurance. It is
undisputed, however, that the Lloyd’s policy did not contain a provision for underinsured
motorist coverage. Nevertheless, on March 29, 2011, Ms. Jones, as administratrix of her
husband’s estate, initiated this action by filing a petition for declaratory judgment. Ms. Jones
asked the circuit court to declare that the Lloyd’s policy provided coverage for the death of her
husband.
By order entered January 27, 2012, the court granted respondents’ motion for judgment
on the pleadings.3 On appeal, petitioner asserts three assignments of error. First, she argues that
the lower court erred in granting judgment on the pleadings because she demonstrated her
standing to seek declaratory judgment. Second, she asserts that the court failed to take judicial
notice of the order approving settlement with Good’s insurance carrier “that concluded
[Patrolman] Jones’ death was proximately caused by the actions of a [sic] uninsured motorist[.]”
Finally, she would have us find that the lower court improperly converted respondents’ motions
to dismiss into summary judgment motions, without affording the parties appropriate notice. We
consider each of these assignments with the recognition that “[a]ppellate review of a circuit
court’s order granting a motion for judgment on the pleadings is de novo.” Syl. Pt. 1, Copley v.
Mingo County Bd. of Educ., 195 W.Va. 480, 466 S.E.2d 139 (1995). Such plenary review is
appropriate because “[a] motion for judgment on the pleadings presents a challenge to the legal
effect of given facts rather than on proof of the facts themselves.” Syl. Pt. 2, in part, Copley.
Thus,
2
Judge Webster’s order is not a part of the record on appeal. The language from that order
that is quoted herein was included in the circuit court’s order for this case.
3
Respondent Commercial Insurance filed a motion to dismiss on May 2, 2011, asserting
that the petition for declaratory judgment sought no relief from it. It does not appear the court
ruled on that motion. On June 10, 2011, Respondent Lloyd’s filed a motion for judgment on the
pleadings, and Respondent Commercial Insurance joined in that motion five days later.
2
[a] circuit court, viewing all the facts in a light most favorable to the nonmoving
party, may grant a motion for judgment on the pleadings only if it appears beyond
doubt that the nonmoving party can prove no set of facts in support of his or her
claim or defense.
Syl. Pt. 3, Copley. See also Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 474, 498
S.E.2d 41, 46 (1997).
With regard to petitioner’s first assignment of error, there is no indication in the circuit
court order or the record on appeal that petitioner’s standing to bring this action was challenged,
and there is certainly no suggestion that lack of standing was a factor in the circuit court’s
decision. As a subpart to this assignment of error, petitioner argues that respondents failed to
offer the City of Charleston underinsured motorist coverage, and further failed to obtain a
knowing and intelligent waiver of that coverage at the time the policy was sold, thereby
mandating the existence of underinsured motorist coverage as a matter of law. See Bias v.
Nationwide Mut. Ins. Co., 179 W.Va. 125, 365 S.E.2d 789 (1987). This position is irrelevant to
our review, inasmuch as the circuit court accepted the concession of respondents, made solely for
purposes of the motion for judgment on the pleadings, that the Lloyd’s policy provided the City
of Charleston underinsured motorist coverage by operation of law.
We are similarly unconvinced by the argument that Judge Webster’s approval in a
separate civil action of the settlement with Good’s insurance carrier imparted an obligation on
respondents to provide coverage. This is particularly so in light of Judge Webster’s clear
disavowal of her order as a basis for such coverage. Likewise, we cannot give ground to the
accusation that the court below “accepted as true allegations of the movant[,]” when the circuit
court specifically noted that it relied upon the facts presented in the petition for declaratory
judgment, and when petitioner has failed to articulate a single fact improperly relied upon by the
circuit court. Furthermore, we require that arguments before this Court be supported by
“appropriate and specific citations to the record on appeal . . .” W.Va. R. App. P. 10(c)(7). We
are not obligated to consider assignments of error lacking the necessary support. Id.
Indeed, none of petitioner’s suggested errors addressed the key, dispositive issue on
which the circuit based its dismissal: Good’s advancing of his vehicle on the officers was not an
“act arising out of the ownership, maintenance, operation, or use” of that vehicle sufficient to
bring the incident leading to the death of Patrolman Jones under the umbrella of the underinsured
motorist coverage. The circuit court based its decision on Syllabus Point 1 of Baber v. Fortner,
186 W.Va. 413, 412 S.E.2d 814 (1991), wherein we held that “[a]n intentional shooting which
occurs from within the cab of a stationary pickup truck is not an act arising out of the ownership,
maintenance, operation, or use of the vehicle.” As in Baber, we perceive no adequate “but for”
connection between Good’s use of the vehicle and the death of Patrolman Jones.
For the foregoing reasons, we affirm.
Affirmed.
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ISSUED: June 24, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING:
Justice Robin Jean Davis
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