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Vitale v. Jefferson Insurance Company of New York8/18/2000
econd Mom. The agreement essentially shielded the Moors and Second Mom from any direct liability for the judgment and gave the personal injury plaintiffs the right to sue Jefferson.
Jefferson issued a $300,000.00 aggregate general liability policy to Clara and Second Mom. Clara purchased the policy for $150.00 through the Professional Day Care Providers Association, a non-profit association that serves the needs of day care providers.
Jefferson was notified of the personal injury action prior to settlement with Liberty Mutual, but denied coverage in a letter, dated December 28, 1993. Jefferson's letter provided, in relevant part, that there was no coverage for the claim and cited the full text of exclusion (b) of the policy, an automobile exclusion provision.
Armed with the assigned rights under the settlement agreement, Vitale, Mascola, Smith, the Moors, and Second Mom filed a complaint seeking damages against Jefferson. They later filed a motion for partial summary judgment alleging that exclusion (b) was inapplicable because Dennis was not one of the "persons insured" under the policy. This contention was based on the discreet failure to designate Second Mom as a sole proprietorship or Clara as an individual in the space indicated for that purpose on the declaration sheet. This failure, they argued, rendered Dennis a non-insured under the policy because he was not a spouse of an insured specifically designated as either an individual or a sole proprietorship. They therefore reasoned, because the automobile exclusion could only be triggered if Dennis was a "person insured" under section II(a), the exclusion could not apply. Appellants' position in this regard was offered notwithstanding that Clara was a named insured, was in fact operating Second Mom as a sole proprietorship, was married to Dennis, and that a named insured's spouse is a "person insured" under the policy. In support of their contentions, appellants proffered testimony from a purported insurance expert.
Jefferson filed a countermotion for summary judgment, arguing that the exclusion of losses arising from automobile accidents involving "persons insured" applied (exclusion (b)) for the following reasons: First, Clara was one of the "persons insured" as set forth on the declaration page and an owner of the automobile that caused the accident; second, under section II(a) of the policy, Dennis, as the spouse of Clara, was one of the "persons insured," regardless of the fact that Clara was not designated as an individual or that Second Mom was not designated as a sole proprietorship on the declaration page.
After conducting a hearing on the cross-motions for summary judgment, the district court ruled that Jefferson properly denied coverage under the automobile exclusion. Appellants filed this timely appeal, contending that the district court erred because Dennis was not a "person insured" under the policy or, alternatively, because Jefferson had waived its right to assert exclusion (b).
DISCUSSION
Summary judgment orders are reviewed de novo. See Day v. Zubel, 112 Nev. 972, 977, 922 P.2d 536, 539 (1996). Summary judgment is only appropriate when a review of the record in a light most favorable to the non-moving party reveals that there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. See id. at 972, 922 P.2d at 538.
In the instant matter, appellants contend that the district court erred in granting Jefferson's motion for summary judgment because there was a triable issue of material fact concerning whether the policy provided coverage for the loss sustained in the automobile accident.
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