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IMT Insurance v. Sayer12/8/2004
The defendants appeal from the district court's declaratory judgment ruling determining there was no insurance coverage for a driver due to policy exclusions. AFFIRMED.
I. Background Facts & Proceedings
This case arises out of a September 30, 2000, one-car automobile accident resulting in the deaths of Nathan Chopard, Michael Hansel, Zachary Sherman, and Kevin Smith. Nathan Chopard was the driver of the car. Neil Sherman, Zachary's father, was the owner of the car. Chopard and his parents were insured by Depositors Insurance Company. IMT Insurance insured the Shermans. Hansel's estate and Smith's estate sued Chopard's estate for wrongful death damages. Sherman's estate also sued Chopard's estate. IMT denied Chopard's estate's request to defend and indemnify it against the Hansel and Smith claims, citing the following policy exclusion:
We do not provide Liability Coverage for any "insured":
8. Using a vehicle without a reasonable belief that that "insured" is entitled to do so. This Exclusion (A.8.) does not apply to a "family member" using "your covered auto" which is owned by you.
IMT claimed Chopard did not have a reasonable belief he had permission to drive Sherman's car. Depositors took the same position concerning defense of Sherman's lawsuit against Chopard's estate. Depositors cited the following policy provision that excluded liability coverage for persons sing a vehicle without a reasonable belief that that person is entitled to do so.
IMT and Depositors each filed declaratory judgment actions requesting the court declare that neither had obligations to defend or indemnify any of the parties in the various lawsuits against Chopard's estate. The two declaratory judgment actions were consolidated.
IMT and Depositors filed motions for summary judgment. The estates of Hansel, Smith, and Sherman filed "counter motions" for summary judgment. The trial court's initial ruling on the parties' motions for summary judgment recited the following undisputed facts:
During the evening of September 30, 2000, Zachary drove himself and two friends, Nathan Chopard and Cody Everett, to a party. They arrived at the rural party about midnight, approximately an hour and a half before the accident. Shortly after their arrival, Zachary either went to sleep or passed out in the back of his vehicle. Cody Everett, at some point, took Zachary's keys from the ignition.
During the course of the evening it was [decided] that someone needed to go get more beer. At approximately 1:10 a.m. Cody Everett gave the keys to Zachary Sherman's vehicle to Nick Kirby. It was Cody's opinion that Nick was sober and able to drive. However, through a course of events unknown in the summary judgment record, the keys ended up with Nathan Chopard and Nathan sitting behind the wheel of Zachary's car. Cody Everett tried to intervene and stop Nathan from driving the vehicle. Nathan got out of the car, punched Cody in the face, re-entered the car and drove away. At the time Nathan was highly intoxicated. His blood alcohol count at the time of death was over .3.
The record contains little direct evidence about Zachary Sherman's state of consciousness from the time he laid down in his back seat until the time of the accident. It is known that four young men were in the car for the beer run and one of them was in the back seat with Zachary. Zachary's body was upright after the passenger's arrival but how that came to be or what it may imply about his awareness is unknown. It is established that Zachary was not sober. At the time of the accident his blood alcohol count was .19.
The court denied the parties' m
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