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American Premier Insurance Co. v. Davenport5/27/2005
AFFIRMING
BEFORE: BUCKINGHAM, KNOPF, AND TAYLOR, JUDGES.
American Premier Insurance Company (American) appeals from orders, entered April 16, 2004, and June 9, 2004, in the Jefferson Circuit Court determining that a motor vehicle insurance policy issued by American provided coverage for claims asserted against its insured, Alan L. Alston. We affirm.
Lucy M. Davenport and James Davenport (collectively referred to as the Davenports) filed a complaint in the Jefferson Circuit Court alleging personal injury to Lucy as the result of a May 15, 2001, automobile accident. The Davenports named the driver of the other vehicle, Alston, and State Farm Mutual Automobile Insurance Company (State Farm) as defendants. The vehicle driven by Alston was owned by his brother and his girlfriend. The Davenports asserted a claim against State Farm for uninsured and/or underinsured motorist benefits.
American subsequently filed an Intervening Complaint For Declaratory Relief. American stated it had issued a policy of automobile insurance to Alston, which was in effect at the time of the accident. American asserted, however, that policy exclusions precluded coverage for the claims asserted by the Davenports. Specifically, American argued that the automobile driven by Alston at the time of the accident was not covered under his policy. American sought a declaration that its policy did not provide coverage for any claims that could be asserted against its insured as a result of the subject accident.
The Davenports and American both filed motions for summary judgment on the issue of whether American's policy provided coverage for the claims asserted. By order entered February 13, 2004, the circuit court denied both motions. The Davenports subsequently filed a motion for reconsideration. By order entered April 16, 2004, the circuit court vacated and set aside its February 13, 2004, order and granted the Davenports' motion for partial summary judgment. Therein, the circuit court held that the policy issued by American did provide coverage for the claims asserted by the Davenports. The partial summary judgment was made final and appealable on June 9, 2004, by an entry of an order that included Ky. R. Civ. P. 54.02 language. This appeal follows.
The standard of review on appeal from a summary judgment "is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scrifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996). Since only issues of law are involved, our review is de novo. Hallahan v. The Courier Journal, 138 S.W.3d 699 (Ky.App. 2004).
The insurance policy American issued to Alston named him as the insured and identified a 1988 Cadillac Deville and a 1968 Oldsmobile Cutlass under the "Description of Owned Automobiles." The American policy defined a "covered auto" as follows:
Any auto or trailer you do not own while used as a temporary substitute for any other vehicle described in the definition, when withdrawn from use because of its breakdown, repair, servicing, loss or destruction, provided its operation is with the permission of the owner and is within the scope of such permission.
The policy also contained the following exclusion:
We do not provide Liability Coverage: ...
6. For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by or furnished or available for the regular use of you or any family member.
It is undisputed that at the time of the accident Alston was driving a Buick Skylark owned by Alston's brothe
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