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. 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 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.
Farm provided a homeowner's insurance policy for
petitioner and his wife's marital home at all times
relevant to this action State Farm also provided petitioner
with a professional liability umbrella policy.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).
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
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.
April 21, 2016, State Farm served petitioner with its
response to his first set of discovery requests.
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.
now appeals the August 18, 2016, order granting summary
judgment to State Farm on Count II of his complaint.
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).
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.
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.
minimum, a Rule 56(f) motion must satisfy the following four
[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
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).
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.
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
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
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. ...