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Rector v. Rector

Supreme Court of West Virginia

May 19, 2017

Robert Nelson Rector, Plaintiff Below, Petitioner
v.
Kimberly Kay Rector and State Farm Fire and Casualty Company, Defendants Below, Respondents

         Harrison County15-C-491-2

          MEMORANDUM DECISION

         Petitioner Robert Nelson Rector, by counsel Gregory H. Schillace, appeals the August 18, 2016, order of the Circuit Court of Harrison County that granted Respondent State Farm Fire and Casualty Company's ("State Farm's") motion for summary judgment on Count II of petitioner's complaint against State Farm and his wife, Respondent Kimberly Kay Rector.[1] In Count II of the complaint, petitioner sought a declaratory judgment that he was entitled to coverage from State Farm under his homeowner's and professional liability umbrella insurance policies for medical expenses and other damages he incurred when his wife negligently shot him. State Farm, by counsel Susan R. Snowden, filed a response in support of the circuit court's order.

         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 affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         State Farm provided a homeowner's insurance policy for petitioner and his wife's marital home at all times relevant to this action[2] State Farm also provided petitioner with a professional liability umbrella policy.[3]Petitioner claims he moved out of the marital home on July 17, 2015, while his wife continued to reside in the marital home as its sole occupant. Eighteen days later, on August 4, 2015, petitioner's wife shot petitioner in the abdomen as he exited a tavern. Petitioner filed this civil action on December 14, 2015, seeking damages from his wife for her negligence with regard to the shooting (Count I), and, as noted above, seeking a declaratory judgment of coverage from State Farm for his medical expenses and other damages proximately caused by the shooting (Count II).

         On March 24, 2016, petitioner served his first set of discovery requests upon State Farm. Four days later, State Farm filed its motion for summary judgment regarding Count II of petitioner's complaint. State Farm argued that petitioner was not entitled to coverage because both his homeowner's and professional liability umbrella polices excluded coverage for "bodily injury or personal injury to any insured."

         In petitioner's response to that motion, he argued that State Farm had not yet responded to his discovery requests regarding its past application of the "bodily injury or personal injury to any insured" exclusion. Petitioner also set forth the need for further discovery in his response. Specifically, petitioner sought to depose his wife who was expected to assert that she was the named insured on the homeowner's policy because she was the sole occupant of the marital home on the date of the shooting. By way of explanation, petitioner argued that he was required to be a resident of the marital home to be an "insured" under the definitions of "you, " "your, " "insured location" and "residence premises" found in his homeowner's policy. Thus, petitioner claimed that because he no longer resided in the home on the date of the shooting, the "bodily injury or personal injury to any insured" exclusion did not preclude him from recovering his damages from State Farm. Accompanying petitioner's response was an affidavit, filed pursuant to Rule 56(f) of the West Virginia Rules of Civil Procedure, in which petitioner stated his reasons for seeking further discovery.

         On April 21, 2016, State Farm served petitioner with its response to his first set of discovery requests.

         On August 18, 2016, the circuit court granted State Farm's motion for summary judgment on Count II. The circuit court noted that petitioner's homeowner's and professional liability umbrella policies provided liability coverage for any claim "brought against an insured" and that the homeowner's policy provided medical payments coverage. However, the circuit court concluded that State Farm properly denied coverage because both policies contained a clear and unambiguous exclusion of coverage for "bodily injury or personal injury to any insured, " and petitioner is the named insured under both policies.

         Petitioner now appeals the August 18, 2016, order granting summary judgment to State Farm on Count II of his complaint.

         "Appellate review of a partial summary judgment order is the same as that of a summary judgment order, which is de novo." Syl. Pt. 1, West Virginia Dep't of Transp., Div. of Highways v. Robertson, 217 W.Va. 497, 618 S.E.2d 506 (2005). Likewise, "[a] circuit court's entry of a declaratory judgment is reviewed de novo." Syl. Pt. 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 495 (1995).

         Petitioner raises four assignments of error on appeal. Petitioner first argues that the circuit court erred in granting summary judgment to State Farm without providing petitioner additional time to engage in discovery. Petitioner highlights that he sought additional discovery in his response to State Farm's motion for summary judgment and that a Rule 56(f) affidavit accompanied that motion.

         Rule 56(f) provides as follows:

Should it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

         At a minimum, a Rule 56(f) motion must satisfy the following four requirements

[The party] should (1) articulate some plausible basis for the party's belief that specified "discoverable" material facts likely exist which have not yet become accessible to the party; (2) demonstrate some realistic prospect that the material facts can be obtained within a reasonable additional time period; (3) demonstrate that the material facts will, if obtained, suffice to engender an issue both genuine and material; and (4) demonstrate good cause for failure to have conducted the discovery earlier.

Syl. Pt. 1, in part, Powderidge Unit Owners Ass'n v. Highland Prop., Ltd., 196 W.Va. 692, 695, 474 S.E.2d 872, 875 (1996).

         There are only two statements in petitioner's Rule 56(f) affidavit that tend to support his request for additional discovery. In the first of these statements, petitioner baldly alleges that additional discovery is "necessary to afford [him] a fair and reasonable opportunity to respond to the motion for summary judgment." In the second statement, petitioner asserts only that "the deposition of [his wife] will be scheduled regarding issues related to insurance coverage." Petitioner failed to identify, in any fashion, the basis for his belief that additional discovery would yield genuinely disputed issues of material fact, or to articulate how further discovery, such as deposing his wife, would create a dispute of material fact. As a result, petitioner failed to satisfy both prongs one and three of Powderidge.

         In Powderidge, we described Rule 56(f) as "a procedural 'escape hatch' . . . provided for a party who genuinely requires additional time to marshal material facts to contest a summary judgment motion." 196 W.Va. at 701, 474 S.E.2d at 881. Also in Powderidge, we cited to Williams v. Precision Coil, Inc., 194 W.Va. 52, 62, 459 S.E.2d 329, 338-39 (1995) for the proposition that

noncompliance with Rule 56(f) is itself justification for rejecting a claim that the opportunity for discovery was inadequate. We, like the Fourth Circuit, place great weight on the Rule 56(f) affidavit, believing that "[a] party may not simpl[y] assert in its brief that discovery was necessary and thereby overturn summary judgment when it failed to comply with the requirement of Rule 56(f) to set out reasons for the need for discovery in the affidavit." Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir.1995).

Powderidge, 196 W.Va. at 701-02, 474 S.E.2d at 881-82. Accordingly, because petitioner's Rule 56(f) affidavit failed to justify the need for additional discovery, we find that the circuit court did not err in granting summary judgment to State Farm absent such discovery.

         Petitioner next argues that the circuit court, in the order on appeal, wrongfully viewed the facts relevant to insurance coverage in the light most favorable to State Farm. However, in his brief before the Court, petitioner fails to identify any factual finding in the order for which the circuit court viewed the facts in the light most favorable to State Farm. Moreover, the circuit court expressly acknowledged in the order that it was required to "draw any permissible inference from the underlying facts in the light most favorable to the party opposing the [summary judgment] motion." Painter, 192 W.Va. at 192, 451 S.E.2d at 758. ...


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