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Vitale v. Jefferson Insurance Company of New York8/18/2000
As amended September 20, 2000.
PHYLISS VITALE; CHRISTINE MASCOLA; JUSTIN SMITH, BY AND THROUGH HIS LEGAL GUARDIAN, CHRISTINE MASCOLA; CLARA MOOR AND SECOND MOM CHILD CARE, AN UNINCORPORATED BUSINESS ENTITY, AND DENNIS MOOR,
APPELLANTS,
V.
JEFFERSON INSURANCE COMPANY OF NEW YORK,
RESPONDENT.
Harrison Kemp & Jones, Chtd., Las Vegas, for Appellants. Beckley Singleton Jemison Cobeaga & List and Elizabeth Goff Gonzalez and Daniel F. Polsenberg, Las Vegas; and Provizer & Phillips, P.C., and Marilyn Madorsky, Bloomfield Hills, Michigan, for Respondent.
Before Rose, C.J., Maupin and Shearing, JJ.
The opinion of the court was delivered by: Per Curiam
Appeal from a district court order and judgment declaring non-coverage under an insurance policy. Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge.
Affirmed.
OPINION
SUMMARY
This matter presents two issues: (1) whether the designation of the named insured in a general liability policy was ambiguous; and (2) under what circumstances does an insurer waive its right to assert an otherwise applicable exclusion set forth in an insurance policy.
Jefferson Insurance Company of New York ("Jefferson") issued a general liability policy to Clara Moor and Second Mom Child Care ("Second Mom"), a day care business that Clara operated out of her home.
Clara is married to Dennis Moor. Dennis was involved in an automobile accident while driving one of their personal vehicles in the scope and course of this family business.
Jefferson denied coverage for injuries arising out of the car accident, claiming that coverage was excluded under the automobile exclusion clause in the policy. Appellants ultimately filed a declaratory relief action to challenge the validity of that denial. The district court eventually granted Jefferson's motion for summary judgment, declaring that no coverage was afforded under the policy.
Thereafter, appellants filed this timely appeal contending, among other things, that the district court erred in granting Jefferson's motion for summary judgment because the policy did not exclude coverage, or alternatively, because Jefferson had waived its right to assert this basis for denial of coverage. We conclude that appellants' contentions lack merit. We therefore affirm the order and judgment of the district court.
STATEMENT OF THE FACTS
On November 21, 1992, a car driven by Dennis, in which he held joint title with his wife, Clara, collided with a car driven by Christine Mascola and also occupied by Phyliss Vitale and Justin Smith. Dennis was apparently conducting business for Second Mom at the time of the accident. Thereafter, Vitale, Smith, and Mascola filed a personal injury action against the Moors and Second Mom. This action was defended by Liberty Mutual, as the Moors were covered by an automobile liability policy with Liberty Mutual with aggregate policy limits of $100,000.00.
The parties to the personal injury action entered into a settlement agreement (the "agreement"), whereunder the Moors and Second Mom stipulated to entry of judgment against them for $717,500.00, and pursuant to which Liberty Mutual paid its policy limits of $100,000.00.
The agreement further provided that the Moors and Second Mom would assign all of their causes of action against Jefferson to Vitale, Mascola and Smith in exchange for their agreement not to execute or record the judgment against the Moors and S
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